IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Jose Noe Nuñez Martinez
Petitioner,
v.

Civil Action No.: ___________

Clair DOLL in his official capacity as
Warden of York County Prison; Simona
FLORES, in her official capacity as
Field Office Director for United States
Immigration and Customs Enforcement;
Thomas D. HOMAN, in his official
capacity as Acting Director of the
United States Immigration and Customs
Enforcement; Kirstjen M. NIELSEN, in
her official capacity as Secretary of the
United States Department of Homeland
Security; and Jefferson Beauregard
SESSIONS, III, in his official capacity
as Attorney General of the United
States;

ELECTRONICALLY FILED

Respondents.

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO
28 U.S.C. SECTION 2241
Petitioner, Jose “Ivan” Noe Nuñez Martinez (“Mr. Nuñez Martinez”),
through his attorneys, hereby petitions this Court to remedy his unlawful detention
by either immediately ordering his release from detention or by ordering a bond
hearing before a neutral arbiter, preferably this Court.

 INTRODUCTION
1.

Respondents have unlawfully detained Mr. Nuñez Martinez without a

bond hearing since January 31, 2018.

Unless this Court intervenes, he will

languish in Respondents’ custody for the duration of his immigration
proceedings—which could take many months, or even years—without any
opportunity for a neutral arbiter to determine the necessity of his detention.
2.

Mr. Nuñez Martinez’s detention is unnecessary because he poses no

danger to the community and is not a flight risk. He is a gay man who is devoted
to his U.S. citizen husband and has lived a productive life in the United States for
nearly 17 years, working steadily and paying taxes. He has never been charged
with or convicted of any crime.
3.

In 2001, when he was approximately 21 years old, Mr. Nuñez

Martinez entered the United States without inspection after fleeing his native
Mexico, where he fears for his life. In 2010, his mother’s health took a serious
turn for the worse, which led him to travel briefly back to Mexico to see her, out of
concern that her illness would prove fatal. When he attempted to re-enter the
United States after that brief trip, agents from U.S. Customs and Border and
Protection (“CBP”) apprehended him and removed him pursuant to an expedited
removal order. Because of his ongoing fear for his safety in Mexico, Mr. Nuñez
Martinez re-entered the United States without inspection soon thereafter.

 4.

Respondents assert that their current custody of Mr. Nuñez Martinez

is governed by the detention statute that applies to individuals with
administratively final orders of removal, 8 U.S.C. § 1231. That assertion is wrong
because Mr. Nuñez Martinez’s 2010 removal order is not final.

Rather, his

credible and reasonable fear of removal to Mexico has triggered proceedings in
which the Executive Office for Immigration Review (“EOIR”) will adjudicate his
claims for withholding of removal. Accordingly, Respondents’ custody of Mr.
Nuñez Martinez is “pending a decision on whether [he] is to be removed from the
United States” and is governed by 8 U.S.C. § 1226(a), which entitles him to an
individualized bond hearing before a neutral arbiter.
5.

Even if § 1231 were to apply here, Mr. Nuñez Martinez’s detention

would be unlawful because § 1231 does not authorize ongoing confinement absent
a finding of dangerousness or a finding that actual removal is reasonably
foreseeable. Here, there is no evidence to support either finding. Consequently,
this Court should order Mr. Nuñez Martinez’s prompt release or order that he
promptly receive an individualized bond hearing before a neutral arbiter,
preferably this Court.

 PARTIES
6.

Petitioner, Mr. Nuñez Martinez, is a native and citizen of Mexico and

is seeking withholding of removal under Section 241(b)(3) of the Immigration and
Nationality Act (“INA”) or under the Convention Against Torture (“CAT”), as
codified at 8 C.F.R. § 1208.16(c). He is in Respondents’ custody at the York
County Prison in York, Pennsylvania.
7.

Respondent Clair Doll is the Warden of York County Prison in York,

Pennsylvania, and is Mr. Nuñez Martinez’s immediate custodian. He is sued in his
official capacity.
8.

Respondent Simona Flores is the Field Office Director for

Enforcement and Removal Operations (“ERO”) in the Philadelphia Field Office of
U.S. Immigration and Customs Enforcement (“ICE”). In this capacity, she has
jurisdiction over the detention facility in which Mr. Nuñez Martinez is held, is
authorized to release Mr. Nuñez Martinez, and is a legal custodian of Mr. Nuñez
Martinez. She is sued in her official capacity.
9.

Respondent Thomas D. Homan is the Acting Director of ICE. In this

capacity he has responsibility for the enforcement of the immigration laws of the
United States. Accordingly, he is the legal custodian of Mr. Nuñez Martinez. He
is sued in is official capacity.
10.

Respondent Kirstjen M. Nielsen is the Secretary of Homeland

Security and head of the U.S. Department of Homeland Security, the arm of the

 U.S. government responsible for enforcing the immigration laws. Ms. Nielsen is
the ultimate legal custodian of Mr. Nuñez Martinez. She is sued in her official
capacity.
11.

Respondent Jefferson Beauregard Sessions, III is the Attorney

General of the United States and heads the U.S. Department of Justice, which
encompasses the Board of Immigration Appeals (“BIA”) and immigration courts,
known collectively as EOIR.

Mr. Sessions shares responsibility for the

implementation and enforcement of immigration laws with Respondent Nielsen.
Mr. Sessions is a legal custodian of Mr. Nuñez Martinez and is sued in his official
capacity.
JURISDICTION AND VENUE
12.

This action arises under 28 U.S.C. § 2241, which provides that

“[w]rits of habeas corpus may be granted by . . . the district courts.” Accordingly,
this Court has jurisdiction under 28 U.S.C. § 1331 because this is a “civil action
arising under the . . . laws . . . of the United States.”
13.

Venue is proper in the Middle District of Pennsylvania because a

substantial part of the events giving rise to these claims occurred in the Middle
District, see 28 U.S.C. § 1391(b), and because Mr. Nuñez Martinez is imprisoned
within the district, see 28 U.S.C. § 2241(d).

 EXHAUSTION OF ADMINISTRATIVE REMEDIES
14.

As a prudential matter, courts generally require a prisoner to exhaust

administrative remedies before filing a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d
757, 760 (3d Cir. 1996).

Exhaustion may be excused, however, if pursuing

administrative relief would be futile. See Schandelmeier v. Cunningham, 819 F.2d
52, 53 (3d Cir. 1986).

Here, Mr. Nuñez Martinez has exhausted all viable

administrative remedies.
15.

On February 22, 2018, Audrey L. Allen, immigration counsel for Mr.

Nuñez Martinez (“Ms. Allen”), filed a letter-brief and accompanying evidence to
Joshua Reid, Assistant Field Office Director for the Philadelphia Field Office of
ICE – Enforcement and Removal Operations, requesting that ICE release Mr.
Nuñez Martinez by paroling him, in its discretion. See Letter of Audrey Allen,
dated February 22, 2018, attached hereto as Ex. A. ICE has not granted Ms.
Allen’s request and still confines Mr. Nuñez Martinez in its custody.
16.

On March 14, 2018, Mr. Nuñez Martinez had a master calendar

hearing before Immigration Judge John P. Ellington (“IJ Ellington”) at the
Immigration Court in York, Pennsylvania. At that hearing, IJ Ellington ruled that
he lacked jurisdiction to review ICE’s custody determination because Mr. Nuñez
Martinez is in “withholding-only” proceedings—i.e., proceedings available to

 someone with a prior removal order who now demonstrates a qualifying fear of
removal to his country of origin or another putative receiving country.
17.

Appealing IJ Ellington’s ruling to the BIA would have been futile

here because the BIA has already held that immigration judges lack authority to
review ICE custody determinations for detainees like Mr. Nuñez Martinez. See In
re: Victor Alfonso Santos, A 089-843-168 (B.I.A. Dec. 9, 2013), attached hereto as
Ex. B (“Federal regulations do not confer jurisdiction upon Immigration Judges to
consider a request for an individualized bond hearing filed by an [noncitizen], such
as respondent, who is currently detained during the course of withholding only
proceedings.”). Because there are no remaining administrative remedies that could
result in Mr. Nuñez Martinez’s release from ICE custody pending his EOIR
proceedings, this Court should adjudicate and grant his request for habeas corpus
relief and either order his release or order that he receive a prompt bond hearing
before a neutral arbiter, preferably this Court.
FACTS
18.

Mr. Nuñez Martinez is a thirty-seven-year-old, gay man who was born

and raised in Michoacán, Mexico.
19.

During his formative years, Mr. Nuñez Martinez tried to hide his

sexual orientation because he feared persecution because of it. He even went as far
as dating women to try to mask his sexual orientation from others—a practice that
pained him and ultimately proved untenable.

 20.

In or around the years 1999 or 2000, when Mr. Nuñez was about 19 or

20 years old, he attended a party outside of Michoacán and engaged in public
displays of affection with another man. When Mr. Nuñez Martinez returned home,
he learned that people in Michoacán were aware of his behavior at the party, and
family members of the woman he had been dating made violent threats against him
because of it.
21.

In 2001, a closeted, gay friend of Mr. Nuñez Martinez was murdered

after his behavior at a party sparked rumors about his sexual orientation.
22.

Fearing violent reprisals against him because of his own sexual

orientation, Mr. Nuñez Martinez fled Mexico and entered the United States without
inspection in 2001.

He lived in the United States continuously until briefly

returning to Mexico in 2010 to visit his ailing mother, whose death he believed was
imminent.
23.

After that brief visit, Mr. Nuñez Martinez’s ongoing fear for his safety

in Mexico led him to try to re-enter the United States without inspection. CBP
agents apprehended him at the border and removed him pursuant to an expedited
removal order. Nevertheless, Mr. Nuñez Martinez’s persistent fear for his life in
Mexico led him soon thereafter to try again to re-enter the United States without
inspection, which he did. He has lived continuously in the United States ever
since.

 24.

For a total of nearly 17 years, Mr. Nuñez Martinez has lived a

peaceful and productive life as a member of American society.

Prior to his

detention by Respondents, he was working full-time at an auto-body-repair shop,
on average for 12 hours a day, 6 days a week.

Before that he worked for

approximately 13 years for a janitorial service company that primarily serviced
locations damaged by disasters. Mr. Nuñez Martinez has steadily paid income
taxes and has never been charged with or convicted of any crime. In all of his
many years in the United States, he has cherished the relative safety with which he
has been able to live his life as an openly gay man.
25.

In August of 2014, Mr. Nuñez Martinez met Paul Frame, the love of

his life and the man whom he would eventually marry. In a celebration including
friends and loved ones, they married on April 9, 2016. See Marriage Certificate,
attached hereto as Ex. C.

They both consider their wedding day among the

happiest of their lives. Photos of them, spanning their courtship, wedding, and life
together as a married couple, are attached hereto as Ex. D.
26.

In order to ensure a continued life together in the United States, Mr.

Frame, a U.S. citizen, submitted a Form I-130, Petition for Alien Relative, to U.S.
Citizenship and Immigration Services (“USCIS”) for Mr. Nuñez Martinez. On
January 31, 2018, they attended what they expected would be a routine marriage
interview at a USCIS office.

It was anything but: ICE agents stormed the

interview and arrested Mr. Nuñez Martinez, shocking and horrifying both him and

 his husband. Since then, ICE has detained him without bond at the York County
Prison in York, Pennsylvania. USCIS has since determined that the marriage
between Mr. Frame and Mr. Nuñez Martinez is bona fide and has approved the
Form I-130. See Form I-130 Approval Notice with Receipt Number WAC-17902-93959, attached hereto as Ex. E.
27.

On January 31, 2018, ICE served Mr. Nuñez Martinez with notice of

its intent to reinstate his prior removal order.

See Form I-187, Notice of

Intent/Decision to Reinstate Prior Order pursuant to 8 U.S.C. § 1231(a)(5),
attached hereto as Ex. F. However, once Mr. Nuñez Martinez expressed fear for
his life if removed to Mexico, ICE referred him to an asylum officer for a
reasonable fear interview. See 8 C.F.R. §§ 208.31, 241.8, and 1208.31.
28.

On February 13, 2018, an asylum officer interviewed Mr. Nuñez

Martinez and determined on February 20, 2018, that he has a credible and
reasonable fear of persecution in Mexico on account of his sexual orientation. See
Record of Determination/Reasonable Fear Worksheet, attached hereto as Ex. G.
On that basis the officer referred Mr. Nuñez Martinez’s case to EOIR for
withholding-only proceedings.
29.

On April 30, 2018, Mr. Nuñez Martinez filed his application for

withholding of removal before IJ Ellington. See Form I-589, Application for
Asylum, Withholding of Removal, and Relief under the Convention Against
Torture, attached hereto as Ex. H. IJ Ellington scheduled an evidentiary hearing on

 the merits of that application to take place on August 15, 2018. Regardless of
whether IJ Ellington eventually grants or denies the application after reviewing the
evidence adduced at that hearing, the losing party will be able to take an appeal by
right to the BIA.

See 8 C.F.R. § 1003.1(b).

Consequently, Respondents’

confinement of Mr. Nuñez Martinez could last for many more months, or even
years, pending the ultimate resolution of his EOIR proceedings.
30.

As it is, Respondents’ confinement of Mr. Nuñez Martinez has taken a

heavy toll on him and his husband. The stress of ongoing detention has led Mr.
Nuñez Martinez to lose weight and sleep poorly, and he fears that his confinement
is exacerbating his diagnosed hypertension.
Respondents’ custody.

At times, he has felt unsafe in

Worst of all, he worries constantly about how his

confinement is impacting his husband, whom he misses terribly.
31.

Mr. Frame is suffering, too.

He feels perplexed about why his

husband is detained at all. He fears for his husband’s physical safety, health, and
mental wellbeing.

He feels lonely without his husband: he misses his

companionship and tenderness. Mr. Frame also has physical limitations that cause
him to struggle with household responsibilities that his husband had customarily
handled. Furthermore, the absence of income from his husband has made it harder
to stay afloat financially.
32.

The plight of Mr. Nuñez Martinez and his husband has captured the

public imagination. The press has reported on their story, and over 1000 people

 have signed a petition in support of Mr. Nuñez Martinez’s swift release from ICE
custody. 1
33.

Notwithstanding the strong public support for Mr. Nuñez Martinez, he

still languishes in ICE custody.

Unless this Court intervenes, Respondents’

ongoing confinement of him will only further harm him and his husband, without
advancing any legitimate purpose.
LEGAL FRAMEWORK
Detention under 8 U.S.C. §§ 1226 and 1231
34.

The Immigration and Nationality Act (“INA”) generally provides two

sources of detention authority.

The detention of individuals with pending

immigration proceedings is governed by 8 U.S.C. § 1226, while 8 U.S.C. § 1231
governs the detention of individuals whose legal process has concluded in a final
order of removal that merely awaits execution.
35.

Section 1226 authorizes the detention of a noncitizen “pending a

decision on whether [the noncitizen] is to be removed from the United States.”
Unless subject to mandatory detention provisions not at issue here, a noncitizen
subject to § 1226 may be released on bond or non-monetary conditions and is
entitled to a bond hearing before a neutral arbiter.

1

See Laura Benshoff, Will Chesco Man’s Arrest at Green Card Interview Scare Off Undocumented Immigrants
Trying to Legalize Status?, WHYY, Feb. 16, 2018, available at https://whyy.org/articles/ice-arrests-chesco-mangreen-card-interview-will-scare-off-undocumented-immigrants-trying-get-legal/; see also Ex. A at 36 (copy of
petition with over 1000 signatures, urging Mr. Nuñez Martinez’s release).

 36.

By contrast, § 1231(a) governs the detention of noncitizens whose

immigration proceedings have concluded. The statute establishes a 90-day period
during which a noncitizen with a final order of removal “shall” be removed, and
provides that the executive “shall” detain the noncitizen during that “removal
period.” 8 U.S.C. §§ 1231(a)(1) and (2). The “removal period” begins on the
“date the order of removal becomes administratively final” (unless the noncitizen
seeks judicial review or is confined by authorities other than immigration
officials). 8 U.S.C. § 1231(a)(1)(B).
37.

With certain exceptions, noncitizens “may” be detained beyond the

removal period.

8 U.S.C. § 1231(a)(6).

But the government interprets §

1231(a)(6) and applicable regulations to deny immigration judges jurisdiction to
set bond or order release on non-monetary conditions. See 8 C.F.R. § 1236.1.
Instead, the government maintains that its custody of individuals under §
1231(a)(6) is subject only to limited review by ICE itself.
38.

The Supreme Court has interpreted §1231(a)(6) to authorize detention

only when actual removal is “reasonably foreseeable.” Zadvydas v. Davis, 533
U.S. 678, 689, 701 (2001). The Third Circuit has subsequently held that detention
under § 1231 is intended “to secure [a noncitizen] pending that [noncitizen’s]
certain removal.” Leslie v. Att’y Gen. of the United States, 678 F.3d 265, 270 (3d
Cir. 2012) (emphasis added).

 Reinstatement of Removal and Withholding-Only Proceedings
39.

Title 8, Section 1231(a)(5) instructs the executive to “reinstate” the

removal order of anyone who is found to have reentered the country illegally after
being removed. Persons subject to reinstatement of removal generally cannot
appear before an immigration judge and are instead subject to summary removal
based upon their previous removal order, which is “reinstated from its original
date.” 8 U.S.C. § 1231 (a)(5); 8 C.F.R. § 241.8(a).
40.

Nevertheless, if a noncitizen subject to reinstatement of removal

expresses fear of being persecuted or tortured in his country of origin or another
putative receiving country, an asylum officer must interview him to determine if he
has a “reasonable fear” of persecution or torture in that country.

8 C.F.R. §

241.8(e). If the officer finds a reasonable fear, he must refer the noncitizen to an
immigration judge for proceedings to determine whether he qualifies for
withholding of removal—a form of protection from removal to a specific country
in which the individual will suffer persecution or torture.

See 8 U.S.C. §

1231(b)(3); 8 C.F.R. §§ 208.16, 208.31(e); see also 8 C.F.R. § 1208.2(c)(3)(i).
Although the relief available in those proceedings is limited to withholding of
removal, the proceedings themselves are still subject to the same procedures that
apply in standard removal proceedings. 8 C.F.R. § 208.31(e).

 The Finality of Removal Orders for People in Withholding-Only Proceedings
and Its Bearing on Statutory Detention Authority
41.

The crux of the legal issues presented by this Petition is whether the

prior removal order of someone in withholding-only proceedings lacks the
necessary finality to subject that person to detention under 8 U.S.C. § 1231 during
the pendency of withholding-only proceedings.
42.

In Guerra v. Shanahan, 831 F.3d 59, 62–63 (2d Cir. 2016), the

Second Circuit Court of Appeals squarely addressed this issue and unequivocally
held that § 1226, not § 1231, governs custody during withholding-only proceedings
because there are clearly ongoing administrative proceedings that undermine the
finality of the prior removal order otherwise needed to trigger § 1231. Id.
43.

Prior to the Second Circuit’s decision in Guerra, the Ninth Circuit had

addressed when the removal order of a person in withholding-only proceedings is
administratively final for purposes of seeking judicial review. The Court concluded
that “the reinstated removal order does not become final until the reasonable fear
of persecution and withholding of removal proceedings are complete.” OrtizAlfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012)2; see also Luna-Garcia v.
Holder, 777 F.3d 1182 (10th Cir. 2015) (same).
44.

In Guerra the government had tried to urge the Second Circuit to

distinguish between the finality of a reinstated removal order for purposes of
2

While the Petitioner recognizes that there is subsequent Ninth Circuit authority contrary to the Second Circuit’s
holding in Guerra, the Ninth Circuit explicitly embraced the misguided reliance on “tiers of finality” that the Second
Circuit rightly rejected. See Padilla-Ramirez v. Bible, 88 F.3d 826, 836 (9th Cir. 2017).

 seeking judicial review and the finality of a reinstated removal order for purposes
of assessing the applicable statute governing custody pending withholding-only
proceedings. The Second Circuit refused to draw such a distinction. “[W]e have
never recognized such ‘tiers’ of finality. Moreover, the bifurcated definition of
finality urged upon us runs counter to principles of administrative law which
counsel that to be final, an agency action must ‘mark the consummation of the
agency’s decisionmaking process.’ U.S. Army Corps of Eng'rs v. Hawkes Co., 136
S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)).”
45.

Although some courts in this district have adopted the government’s

arguments in Guerra, they did so by embracing the “tiers of finality” that the
Guerra court rightly rejected and by claiming that the judicial review available in
withholding-only proceedings is not review of the underlying removal order but
merely of whether a given country is an appropriate one for removal. See Flores v.
Doll, 2017 WL 5496620 (M.D. Pa. Nov. 16, 2017), Smith v. Sabol, 2017 WL
4269410 (M.D. Pa. Sept. 9, 2017), Bucio-Fernandez v. Sobol, 2017 WL 2619138
(M.D. Pa. Jun. 16, 2017), Dutton-Myrie v. Lowe, 2014 WL 5474617 (M.D. Pa.
Oct. 24, 2014). That reasoning is mistaken because it fails to take into account that
removal orders are country-specific.

That specificity is demonstrated by the

regulation that provides for withholding-only proceedings for noncitizens who
“express a fear of returning to the country designated in [the removal] order.” 8
C.F.R. §241.8(e).

Elsewhere the regulations elaborate that, during removal

 proceedings, the IJ shall provide the noncitizen with an opportunity to designate a
country, and “shall also identify for the record” any other countries to which he or
she may be removed. 8 C.F.R. §1240.10(f); cf. Tonfack v. Att’y Gen., 580 Fed.
Appx. 79, 81 (3d Cir. 2014) (concluding that the designation of a country or
countries of removal is “encompassed in the removal order”).
46.

Indeed, many courts in this district have fully endorsed the Second

Circuit’s reasoning in Guerra and held that § 1226 governs the custody of
noncitizens pending withholding-only proceedings and thereby affords them access
to release on bond or other conditions and access to a bond hearing before a neutral
arbiter. See Ignacio v. Sabol, 2016 WL 4988056, at *4 (M.D. Pa. Sept. 19 2016)
(quoting Guerra v. Shanahan, 831 F.3d 59, 62-63 (2d Cir. 2016); see also
Sisiliano-Lopez v. Lowe, 2017 WL 3602037 (M.D. Pa. Aug. 22, 2017), MendozaOrdonez v. Lowe, 273 F. Supp. 3d 528 (M.D. Pa. 2017), Pierre v. Sabol, 2012 WL
1658293 (M.D. Pa. May 11, 2012).

 CLAIMS FOR RELIEF
FIRST CLAIM
Violation of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)
47.

Paragraphs 1 to 46 are incorporated here by reference as if set forth in

48.

Although ICE notified Mr. Nuñez Martinez of its intent to reinstate

full.

his 2010 order of removal to Mexico, he is now in proceedings to determine
whether he may in fact be removed under that order.
49.

Consequently, Mr. Nuñez Martinez is detained “pending a decision on

whether [he] is to be removed from the United States” under 8 U.S.C. § 1226(a),
not pursuant to an “administratively final” order of removal under 8 U.S.C. §
1231(a). See 8 U.S.C. § 1101(a)(47)(B) (removal order is not final until both the
immigration judge and BIA have completed their review). See also Guerra, 831
F.3d at 62–63; Ignacio, 2016 WL 4988056, at *4 (quoting Guerra); SisilianoLopez, 2017 WL 3602037; Mendoza-Ordonez, 273 F. Supp. 3d 528; Pierre, 2012
WL 1658293.
50.

Noncitizens like Mr. Nuñez Martinez who are detained under 8 U.S.C.

§ 1226(a) are entitled to an individualized bond hearing to determine whether they
pose a flight risk or danger warranting further detention.
51.

Respondents’ failure to afford Mr. Nuñez Martinez such a bond

hearing violates 8 U.S.C. § 1226(a).

 SECOND CLAIM
Violation of Due Process under the U.S. Constitution
52.

Paragraphs 1 through 51 are incorporated by reference as if set forth

in full.
53.

Even if this Court determines that 8 U.S.C. § 1231 governs

Respondents’ custody of Mr. Nuñez Martinez, their detention of him pursuant to
that authority is still unlawful under the Due Process Clause of the U.S.
Constitution.
54.

Due process permits the government to restrain an individual’s liberty

only where the government’s justification for such restraint bears a “reasonable
relation” to permissible purposes. Jackson v. Indiana, 405 U.S. 715, 738 (1972);
see also Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Zadvydas v. Davis, 533 U.S.
678, 690 (2001). In the immigration context, those purposes are “ensuring the
appearance of [noncitizens] at future immigration proceedings and preventing
danger to the community.” Zadvydas, 533 U.S. at 690 (citations omitted). Where
[a noncitizen] is detained pursuant to Section 1231, “the purpose of § 1231
detention is to secure [a noncitizen] pending [his] certain removal.” Leslie, 678
F.3d at 270.
55.

Those substantive limitations on detention are closely intertwined

with procedural due process protections. Foucha, 504 U.S. 78-80. Noncitizens
such as Mr. Nuñez Martinez have a right to adequate procedures to determine

 whether their detention serves the purposes of protecting the community or
ensuring their appearance. Id. at 49. “Our legal tradition rejects warehousing
human beings while their legal rights are being determined, without an opportunity
to persuade a judge that the norm of monitored freedom should be followed.”
Hamama v. Adducci, 285 F. Supp. 3d 997, 1003 (E.D. Mich. 2018).
56.

Here, the government can demonstrate neither the necessity of Mr.

Nuñez Martinez’s detention nor its use of adequate procedures to arrive at the
ongoing decision to confine him. Consequently, Mr. Nuñez Martinez’s ongoing
detention pursuant to 8 U.S.C. § 1231 violates both his substantive and procedural
rights to Due Process.
57.

If the Court does order a bond hearing to remedy either or both

claims in this Petition, Mr. Nuñez Martinez respectfully requests that this Court
conduct it to ensure that Mr. Nuñez Martinez’s liberty interest is not left to the
whim of a government agency that does not believe he is entitled to such a hearing
at all. See Leslie v. Holder, 865 F. Supp. 2d 627 (M.D. Pa. 2012) (citations
omitted) (“This District Court has in a number of instances conducted this bail
review in immigration habeas matters.”).
PRAYER FOR RELIEF
Mr. Nuñez Martinez respectfully requests that this Court conduct, or in the
alternative, order, a constitutionally adequate hearing to be held within twenty-one

 days, and grant such further relief, including an award of attorney’s fees, as this
Court deems just and proper.

Dated:

May 22, 2018

By: /s/ Lauren M. Wilchek
Lauren M. Wilchek
Ilana H. Eisenstein*
Mark A. Kasten*
lauren.wilchek@dlapiper.com
ilana.eisenstein@dlapiper.com
mark.kasten@dlapiper.com

DLA PIPER LLP (US)
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, PA 19103
T: 215.656.3300
F: 215.656.3301

/s/ Witold J. Walczak
Witold J. Walczak
vwalczak@aclupa.org
AMERICAN CIVIL
LIBERTIES UNION OF
PENNSYLVANIA
FOUNDATION
247 Fort Pitt Boulevard,
Floor 2
Pittsburgh, PA 15222
T: 412.681.7864
F: 412.681.8707
*Petition pending for special
admission to the bar of the Court

/s/ Golnaz Fakhimi
Golnaz Fakhimi†
gfakhimi@aclupa.org
AMERICAN CIVIL LIBERTIES
UNION OF PENNSYLVANIA
FOUNDATION
P.O. Box 60173
Philadelphia, PA 19102
T: 215.592.1513 ext. 147
F: 215.592.1343

†Petition pending for general admission
to the bar of the Court
Habeas Counsel for Petitioner,
Jose “Ivan” Noe Nuñez Martinez

 VERIFICATION PURSUANT TO 28 U.S.C. SECTION 2242
I, Golnaz Fakhimi, hereby verify under penalty of perjury pursuant to 28
U.S.C. § 1746 that the factual allegations in the foregoing petition are true and
correct, on information and belief (based on my review of the petition with
Petitioner, Jose “Ivan” Noe Nuñez Martinez; his husband, Paul Frame; and Audrey
L. Allan, Petitioner’s immigration counsel).
Dated:

May 22, 2018

/s/ Golnaz Fakhimi
Golnaz Fakhimi†
AMERICAN CIVIL LIBERTIES
UNION OF PENNSYLVANIA
FOUNDATION
P.O. Box 60173
Philadelphia, PA 19102
T: 215.592.1513 ext. 147
F: 215.592.1343
E: gfakhimi@aclupa.org
†Petition pending for general admission
to the bar of the Court
Habeas Counsel for Petitioner,
Jose “Ivan” Noe Nuñez Martinez