Marcel Rivero Perez v. Supervisory Detention and Deportation Officer, et al.

Summary

This Report and Recommendation addresses Respondents’ motion to dismiss Marcel Rivero Perez’s habeas and related immigration claims. The court recommends granting the motion, concluding that Perez’s detention and release under an ICE Form I-220B Order of Supervision were governed by the post-removal-order detention framework rather than the expedited-removal parole provision, and addressing his related challenge to USCIS’s denial of adjustment of status.

Holdings

1. The asylum officer's negative credible-fear determination did not create a final expedited-removal order or keep Perez exclusively within section 1225 proceedings. Because Perez met the reasonable-fear standard and was issued a notice to appear for section 240 proceedings, his claims proceeded under the comprehensive removal process and were adjudicated by an immigration judge.
2. Section 1225 mandatory detention did not continue after Perez's case was transferred to and finally adjudicated in section 240 proceedings. Following entry of the final removal order, detention, release, and supervision were governed by 8 U.S.C. § 1231(a), and release subject to the Form I-220B Order of Supervision was lawful.
3. Perez was not granted discretionary parole under 8 U.S.C. § 1182(d)(5)(A), and the court rejected his theory that release necessarily implied parole as a matter of law.
4. The court lacked authority to order DHS to exercise discretionary parole authority or to intervene in USCIS's discretionary denial of Perez's Cuban Adjustment Act application.

Questions Presented

1. Whether Perez remained subject exclusively to mandatory detention under 8 U.S.C. § 1225(b)(1) after his reasonable-fear finding and transfer to section 240 removal proceedings.
2. Whether Perez's release from custody constituted discretionary parole under 8 U.S.C. § 1182(d)(5)(A) as a matter of law.
3. Whether Perez's release after entry of a final removal order was lawfully governed by 8 U.S.C. § 1231(a), including supervision after the removal period.
4. Whether the court could compel DHS to exercise discretionary parole authority or intervene in USCIS's discretionary denial of Perez's adjustment-of-status application.
5. Whether the amended petition stated a claim upon which relief could be granted under Rule 12(b)(6).

Disposition

dismissed