Villalta v. Sessions et al, No. 5:2017cv05390 - Document 16 (N.D. Cal. 2017)
Court Description: ORDER Granting in part and Denying in part 1 PETITION for Writ of Habeas Corpus and Denying as moot 6 MOTION for Temporary Restraining Order. Signed by Judge Lucy H. Koh on 10/02/2017. (lhklc2, COURT STAFF) (Filed on 10/2/2017)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 MOISES ALEXANDER VILLALTA, 13 Petitioner, 14 15 16 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER v. JEFFERSON B. SESSIONS, et al., Respondents. Re: Dkt. Nos. 1, 6 17 18 On September 18, 2017, Petitioner Moises Alexander Villalta (“Petitioner”) filed, through 19 counsel, a petition for writ of habeas corpus under 28 U.S.C. § 2241. See ECF No. 1 (“Petition”). 20 Petitioner is a native and citizen of El Salvador who is currently detained in Immigration and 21 Customs Enforcement (“ICE”) custody. See ECF No. 12-1, Exh. 1 (“Hubbard Decl.”) ¶¶ 3, 11. 22 Petitioner argues that his prolonged detention without a bond hearing before an immigration judge 23 (“IJ”) is unlawful, and requests that the Court either (1) “[o]rder [Petitioner’s] release from [ICE] 24 custody”; or (2) order Respondents Jefferson B. Sessions, III, Elaine C. Duke, David W. Jennings, 25 and David O. Livingston (“Respondents”) to “immediately provide a custody hearing at which the 26 government is required to justify” Petitioner’s continued detention. Compl. at 16–17. On 27 28 1 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 September 19, 2017, Petitioner filed a motion for a temporary restraining order (“TRO”) seeking 2 the same relief. See ECF Nos. 6, 7. That same day, the Court ordered Respondents to respond to 3 Petitioner’s TRO motion. See ECF No. 9. On September 22, 2017, Respondents filed a 4 Response.1 See ECF No. 12 (“Resp.”). Then, on September 25, 2017, Petitioner filed a Reply. 5 See ECF No. 15 (“Reply”). In their Response, Respondents request that the Court resolve Petitioner’s habeas petition 7 on the merits. See Resp. at 1, 15. Petitioner does not oppose Respondents’ request. See Reply at 8 8. Thus, having reviewed the briefing and exhibits submitted by the parties, the Court concludes 9 that Petitioner is entitled to a bond hearing, but not to immediate release from ICE custody. As a 10 result, the Court GRANTS in part and DENIES in part Petitioner’s habeas petition, and DENIES 11 United States District Court Northern District of California 6 as moot Petitioner’s TRO motion. 12 I. BACKGROUND 13 Petitioner asserts that he first entered the United States around 1999 after fleeing El 14 Salvador because of violence and threats from the MS-13. ECF No. 5-1, Ex. H (“Villalta Decl.”), 15 ¶¶ 1, 31–35. Specifically, Petitioner says that he was targeted by the MS-13 after he identified 16 MS-13 members as the perpetrators of two separate crimes. See id. ¶¶ 4–29. 17 In or around 2011, Petitioner was apprehended by ICE. See Hubbard Decl. ¶ 4; ECF No. 7 18 at 3. Then, in February 2012, ICE placed Petitioner into removal proceedings. Hubbard Decl. ¶ 4. 19 On May 10, 2012, an IJ ordered Petitioner removed to El Salvador. Id. ¶ 5; Villalta Decl. ¶¶ 41– 20 46. Petitioner appealed the IJ’s order to the Board of Immigration Appeals (“BIA”), which 21 dismissed his appeal in September 2012. Hubbard Decl. ¶ 5. Petitioner was removed to El 22 Salvador in October 2012. Id. ¶ 6; ECF No. 12-1 at 6–7. However, in December 2012, 23 government officials encountered Petitioner in Houston, Texas. Hubbard Decl. ¶ 7. Petitioner 24 was subsequently served with a “Notice of Intent/Decision to Reinstate Prior Order,” which 25 26 27 28 1 Respondent David O. Livingston filed a “Non-Opposition to Motion for Temporary Restraining Order,” in which he explained that he “takes no position regarding the merits of Petitioner’s Motion for a Temporary Restraining Order.” ECF No. 13 at 2. 2 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 reinstated the previous removal order against Petitioner. See ECF No. 12-1 at 9. Then, Petitioner 2 was again removed to El Salvador in January 2013. See id. at 11–12. 3 Petitioner claimed that he subsequently re-entered the United States in 2013. Hubbard 4 Decl. ¶ 9; ECF 12-1 at 16. In January 2017, Petitioner was arrested in Alameda County, 5 California and accused of driving under the influence. Villalta Decl. ¶¶ 56–57. ICE agents took 6 Petitioner into custody at the Alameda County jail on January 25, 2017. Id.; Hubbard Decl. ¶ 9. 7 The next day, ICE once again reinstated Petitioner’s prior order of removal. Hubbard 8 Decl. ¶ 11; ECF No. 12-1 at 19. However, because Petitioner expressed a fear of returning to El 9 Salvador, his case was referred to an asylum officer of the United States Citizenship and Immigration Services (“USCIS”). Hubbard Decl. ¶ 12. The asylum officer found that Petitioner 11 United States District Court Northern District of California 10 had a reasonable fear of persecution or torture upon removal to El Salvador. ECF No. 12-1 at 21. 12 Thus, USCIS referred Petitioner’s case to an IJ to conduct “withholding-only” proceedings 13 through which Petitioner could apply for withholding of removal and relief under the Convention 14 Against Torture (“CAT”). Hubbard Decl. ¶ 13; ECF No. 5-1, ECF No. 5-1, Exh. A (“Laner 15 Decl.”) ¶¶ 5–6. Petitioner submitted an application for withholding of removal and relief under 16 the CAT. Laner Decl. ¶ 6. On September 11, 2017, Petitioner appeared before the IJ for an 17 individual hearing on Petitioner’s application. Hubbard Decl. ¶ 23. The IJ continued the hearing 18 until October 23, 2017 for additional testimony. Id. 19 Petitioner has been detained in ICE custody since January 25, 2017, and remains in 20 detention at Contra Costa County Jail, West County Detention Facility in Richmond, California. 21 See id. ¶¶ 9, 14. On August 31, 2017, after Petitioner had been detained by ICE for more than 22 seven months, Petitioner filed a motion for a prolonged detention bond hearing pursuant to 23 Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015) and Diouf v. Napolitano 24 (Diouf II), 634 F.3d 1081 (9th Cir. 2011). See ECF No. 5-1 at 29–30. That same day, the IJ 25 denied Petitioner’s motion for a prolonged detention bond hearing, stating only that the “court 26 lacks jurisdiction as respondent in withholding only proceedings.” See id. at 27. 27 28 3 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER On September 5, 2017, Petitioner filed a renewed motion for a prolonged detention bond 1 2 hearing. See id. at 20–22. On September 6, 2017, the IJ again denied Petitioner’s motion. See id. 3 at 18. On September 14, 2017, Petitioner appealed the IJ’s bond hearing denial to the BIA. See 4 id. at 12–14. 5 II. DISCUSSION Petitioner argues that, as an alien in “withholding-only” proceedings before an IJ, 6 7 Petitioner is entitled to a bond hearing before the IJ “at which the government is required to justify 8 [Petitioner’s] continued detention by clear and convincing evidence that [Petitioner] is a danger or 9 flight risk.” Petition at 17; see Rodriguez III, 804 F.3d at 1065. Petitioner asserts that he is entitled to a bond hearing because he has been subject to prolonged detention. See ECF No. 7 at 11 United States District Court Northern District of California 10 7. Respondents do not contest that Petitioner is in “withholding-only” proceedings. See 12 13 Resp. at 5. Respondents also do not assert that Respondents have already provided Petitioner the 14 type of hearing that Petitioner seeks—specifically, a hearing at which the government is required 15 to justify Petitioner’s continued detention by providing clear and convincing evidence that 16 Petitioner is a flight risk or a danger to the community. Further, Respondents do not dispute that 17 Petitioner has been subject to prolonged detention—that is, detention that “has lasted six months 18 and is expected to continue more than minimally beyond six months.” Diouf II, 634 F.3d at 1092 19 n.13. 20 Instead, Respondents argue that Petitioner’s habeas petition should be denied because (1) 21 Petitioner failed to exhaust administrative remedies; and (2) in any event, Petitioner is not lawfully 22 entitled to a bond hearing. See Resp. at 7–13. For the reasons discussed below, the Court 23 disagrees with Respondents. First, the Court explains why Petitioner is not required to exhaust 24 administrative remedies in these circumstances. Second, the Court explains why Petitioner is 25 entitled to a bond hearing. 26 27 28 A. Petitioner is Not Required to Exhaust Administrative Remedies 4 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 It is undisputed that Petitioner has not exhausted his administrative remedies. Petitioner 2 has filed two motions for a prolonged detention bond hearing with the IJ, both of which have been 3 denied. See ECF No. 5-1 at 18, 20–22, 27, 29–30. Petitioner appealed the IJ’s bond hearing 4 denial to the BIA on September 14, 2017, only four days before Petitioner filed the instant habeas 5 petition. See id. at 12–14. Respondents argue that the Court should dismiss Petitioner’s habeas 6 petition because Petitioner failed to exhaust his administrative remedies. Resp. at 7–9. For his 7 part, Petitioner contends that he should not be required to exhaust administrative remedies. For 8 the reasons discussed below, the Court agrees with Petitioner. The Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust 10 available judicial and administrative remedies before seeking relief under § 2241.” Castro-Cortez 11 United States District Court Northern District of California 9 v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001). Specifically, “courts may require prudential 12 exhaustion if (1) agency expertise makes agency consideration necessary to generate a proper 13 record and reach a proper decision; (2) relaxation of the requirement would encourage the 14 deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the 15 agency to correct its own mistakes and to preclude the need for judicial review.” Puga v. Chertoff, 16 488 F.3d 812, 815 (9th Cir. 2007) (internal quotation marks omitted). However, courts may waive 17 the prudential exhaustion requirement if “administrative remedies are inadequate or not 18 efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will 19 result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 20 (9th Cir. 2004) (quoting SEC v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981)). 21 Petitioner argues that requiring Petitioner to exhaust administrative remedies would cause 22 Petitioner irreparable harm. See Reply at 7. The Court agrees that Petitioner “may suffer 23 irreparable harm if unable to secure immediate judicial consideration of his claim.” McCarthy v. 24 Madigan, 503 U.S. 140, 147 (1992). Petitioner claims he is entitled to a bond hearing because he 25 has been subject to prolonged detention. As the Court noted above, Respondents do not dispute 26 that Petitioner has been subject to prolonged detention. Indeed, at the time of writing, Petitioner 27 28 5 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER has been detained by ICE for more than eight months—substantially longer than the six-month 2 marker for prolonged detention set forth in Diouf II. 634 F.3d at 1092 n.13. Thus, if Petitioner is 3 correct on the merits of his habeas petition, then Petitioner has already been unlawfully deprived 4 of a bond hearing for at least two months. Further, as Petitioner points out, each additional day 5 that Petitioner is detained without a bond hearing would “cause[] him harm that cannot be 6 repaired.” Reply at 7. Beyond that, Respondents do not dispute Petitioner’s contention that “the 7 BIA often takes four months or more to decide an appeal.” ECF No. 7 at 4. Thus, “the potential 8 for irreparable harm to Petitioner, in the form of continued unlawful denial of [bond] hearings” for 9 potentially four months or more, persuades the Court that waiver of the exhaustion requirement is 10 appropriate in the instant case. Marroquin-Perez v. Boente, No. 17-CV-00366-PHX-JTT (JFM), 11 United States District Court Northern District of California 1 2017 U.S. Dist. LEXIS 122208, at *5–6 (D. Ariz. Aug. 1, 2017). Other district courts within the 12 Ninth Circuit have declined to require exhaustion in cases with similarly-situated petitioners. See 13 id.; Rios-Troncoso v. Sessions, No. 17-cv-01492-PHX-DGC (MHB), 2017 U.S. Dist. LEXIS 14 141885, at *6–7 (D. Ariz. Sept. 1, 2017) (“[T]he Court has identified no fewer than six cases in 15 this District in which the exhaustion requirement was waived for similarly-situated petitioners.”). 16 The sole argument that Respondents raise against Petitioner’s assertion of irreparable harm 17 is that Petitioner’s “detention [without a bond hearing] is lawful and, therefore, cannot cause 18 irreparable injury such that the requirement of exhaustion should be waived.” Resp. at 9. 19 However, as the Court explains below, Petitioner’s continued detention without a bond hearing is 20 unlawful. 21 22 B. Petitioner Is Entitled to a Bond Hearing In order to explain why Petitioner is entitled to a bond hearing, the Court first summarizes 23 the statutes relevant to this case and describes what “withholding-only” proceedings are. Then, 24 the Court provides a brief summary of the relevant law governing detention of aliens awaiting 25 removal from the United States and discusses how the law applies to Petitioner’s circumstances. 26 27 28 1. Relevant Statutes and “Withholding-Only” Proceedings 6 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 The Immigration and Nationality Act (“INA”) sets forth a statutory scheme that authorizes 2 detention of aliens awaiting removal from the United States. Different sections of the INA govern 3 different phases of detention. First, 8 U.S.C. § 1226(a) authorizes detention of an alien “pending a 4 decision on whether the alien is to be removed from the United States.” Section 1226(a) 5 authorizes detention until a removal order becomes final—that is, until “the latest of the date the 6 order of removal becomes administratively final or, if the alien files a petition for review in the 7 court of appeals and the court of appeals orders a stay of removal, the date of the court of appeals’ 8 final order upholding the order of removal.” Diouf II, 534 F.3d at 1085. Second, after a removal order becomes final, 8 U.S.C. § 1231(a)(2) authorizes mandatory 10 detention of the alien during a 90-day period called the “removal period.” 8 U.S.C. § 1231(a)(2); 11 United States District Court Northern District of California 9 see id. § 1231(a)(1)(A) (defining the “removal period”). Specifically, § 1231(a)(2) states that 12 “[d]uring the [90-day] removal period, the Attorney General shall detain the alien.” Third, 8 U.S.C. § 1231(a)(6) authorizes detention “beyond the [90-day] removal period” of 13 14 an alien “who has been determined by the Attorney General to be a risk to the community or 15 unlikely to comply with the order of removal.” Although § 1231(a)(6) detainees are subject to 16 final orders of removal, and therefore cannot seek direct review of their removal orders, some § 17 1231(a)(6) detainees may seek collateral review of their removal orders. See Diouf II, 634 F.3d at 18 1086. 19 If an alien who was previously removed from the United States pursuant to a removal 20 order re-enters the United States and is subsequently apprehended, 8 U.S.C. § 1231(a)(5) allows 21 the government to reinstate the alien’s prior removal order, and the alien cannot challenge his 22 reinstated removal order either directly or collaterally. 8 U.S.C. § 1231(a)(5) (“[T]he prior order of 23 removal is reinstated from its original date and is not subject to being reopened or reviewed.” 8 24 U.S.C. § 1231(a)(5). 25 26 27 28 However, if the alien expresses a fear of returning to the country of removal, and if an asylum officer finds that the alien has a “reasonable fear” of persecution, then the alien is placed in 7 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 “withholding-only” proceedings before an IJ through which the alien may apply for withholding 2 of removal. See 8 C.F.R. § 208.31. These proceedings are known as “withholding-only” 3 proceedings because the IJ’s jurisdiction is limited to consideration of whether an alien is entitled 4 to withholding of removal only. See id. § 1202.2(c)(3)(i) (“The scope of review in [withholding- 5 only] proceedings . . . shall be limited to a determination of whether the alien is eligible for 6 withholding or deferral of removal.”). 7 2. Legal Framework and Application to Petitioner 8 In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), the Ninth Circuit observed that “prolonged detention” pursuant to 8 U.S.C. § 1226(a) without an 10 individualized bond hearing “would raise serious constitutional concerns.” Id. at 950; see id. at 11 United States District Court Northern District of California 9 951. Thus, the Ninth Circuit applied the canon of constitutional avoidance and interpreted § 12 1226(a) to require the government to provide bond hearings before immigration judges to aliens 13 subject to prolonged detention. Id. at 951 (“Because the prolonged detention of an alien without 14 an individualized determination of his dangerousness or flight risk would be ‘constitutionally 15 doubtful,’ we hold that § 1226(a) must be construed as requiring the Attorney General to provide 16 the alien with such a hearing.”). The Ninth Circuit also stated that at these bond hearings, the 17 government must “establish[] that [the alien] is a flight risk or will be a danger to the community” 18 in order to justify continued detention of the alien. Id. (internal quotation marks omitted). 19 Only three years after Casas-Castrillon, the Ninth Circuit “extend[ed] Casas-Castrillon to 20 aliens detained under § 1231(a)(6)” in Diouf II. 634 F.3d at 1086. The Ninth Circuit found “no 21 basis for withholding from aliens detained under § 1231(a)(6) the same procedural safeguards 22 accorded to aliens detained under § 1226(a),” and stated that “prolonged detention under § 23 1231(a)(6), without adequate procedural protections, would raise ‘serious constitutional 24 concerns.’” Id. (quoting Casas-Castrillon, 535 F.3d at 950). As a result, the Ninth Circuit once 25 again applied the canon of constitutional avoidance and “construe[d] § 1231(a)(6) as requiring an 26 individualized bond hearing, before an immigration judge, for aliens facing prolonged detention 27 28 8 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 under [§ 1231(a)(6)].” Id. Most recently, in Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir. 2017), the Ninth Circuit 3 addressed whether an alien in “withholding-only” proceedings is detained pursuant to § 1226(a) or 4 § 1231(a). The petitioner in Padilla-Ramirez, like Petitioner here, was in “withholding-only” 5 proceedings after ICE reinstated the petitioner’s prior removal order and an asylum officer found 6 that the petitioner “had stated a reasonable fear of persecution or torture if he were removed to El 7 Salvador.” 862 F.3d at 883. The Ninth Circuit held that the petitioner was “detained pursuant to 8 [8 U.S.C. §] 1231(a).” Id. at 886. Thus, because only two provisions of § 1231(a) authorize 9 detention—§ 1231(a)(2) (which authorizes detention during the 90-day removal period) and § 10 1231(a)(6) (which authorizes detention beyond the 90-day removal period)—Padilla-Ramirez 11 United States District Court Northern District of California 2 indicates that an alien who is detained while in “withholding-only” proceedings must be detained 12 pursuant to either § 1231(a)(2) or § 1231(a)(6). In turn, under Diouf II, an alien who is detained in 13 “withholding-only” proceedings pursuant to the second provision, § 1231(a)(6), is entitled to a 14 bond hearing if the alien has been subject to prolonged detention. 15 As a result, Diouf II and Padilla-Ramirez clearly demonstrate that Petitioner is entitled to a 16 bond hearing. First, as the Court noted above, Respondents do not dispute that Petitioner has been 17 subject to prolonged detention. Second, as Respondents correctly acknowledge, Petitioner “is 18 being detained pursuant to . . . [§] 1231(a)(6).” Resp. at 1. The parties agree that Petitioner is 19 currently in “withholding-only” proceedings, so Padilla-Ramirez establishes that Petitioner is 20 being detained pursuant to 8 U.S.C. § 1231(a). And as the Court stated above, § 1231(a) contains 21 two detention provisions: § 1231(a)(2) authorizes mandatory detention during the 90-day removal 22 period immediately after an alien’s removal order becomes final, while § 1231(a)(6) authorizes 23 detention “beyond the [90-day] removal period” of an alien “who has been determined by the 24 Attorney General to be a risk to the community or unlikely to comply with the order of removal.” 25 Because “Petitioner has been detained past the 90-day removal period,” Resp. at 1, it is beyond 26 dispute that Petitioner is being detained pursuant to § 1231(a)(6). 27 28 9 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 Therefore, the parties are in agreement that Petitioner (1) has been subject to prolonged detention (2) pursuant to 8 U.S.C. § 1231(a)(6). In Diouf II, the Ninth Circuit “h[e]ld that an alien 3 facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigration 4 judge and is entitled to be released from detention unless the government establishes that the alien 5 poses a risk of flight or a danger to the community.” 634 F.3d at 1092. Indeed, the Diouf II court 6 stated that it “construe[d] § 1231(a)(6)” in this way because a contrary construction “would raise 7 ‘serious constitutional concerns.’” Id. at 1086 (quoting Casas-Castrillon, 535 F.3d at 950). Thus, 8 Diouf II plainly requires Respondents to provide Petitioner the bond hearing that he seeks in his 9 petition. See Rios-Troncoso, 2017 U.S. Dist. LEXIS 141885, at *8–9 (“[T]he clear language of 10 Diouf II . . . extinguishes any doubt that the government is required to provide Petitioner with a 11 United States District Court Northern District of California 2 bond hearing before an immigration judge.”). 12 The Court does not find persuasive any of Respondent’s attempts to distinguish Diouf II 13 from the instant case. First, Respondents insist that Diouf II does not “afford the opportunity for a 14 bond hearing to aliens like Petitioner” because Diouf II held only that “aliens who are subject to a 15 final order of removal”—and not aliens who are subject to a reinstated order of removal—“are 16 entitled to bond hearings if detention under section 1231(a) becomes prolonged.” Resp. at 12. 17 However, Diouf II’s explicit holding makes no distinction between aliens who are subject to final 18 orders of removal and aliens who are subject to reinstated orders of removal. To the contrary, the 19 Diouf II court announced: “We hold that an alien facing prolonged detention under § 1231(a)(6) is 20 entitled to a bond hearing before an immigration judge and is entitled to be released from 21 detention unless the government establishes that the alien poses a risk of flight or a danger to the 22 community.” 634 F.3d at 1092. Because Diouf II “construe[d] § 1231(a)(6),” Diouf II’s holding 23 applies to all aliens detained under § 1231(a)(6). Id. at 1086. 24 Second, and similarly, Respondents argue that Diouf II is distinguishable from the instant 25 case because the petitioner in Diouf II “could challenge his removal order itself,” while “Petitioner 26 here will remain subject to a final order of removal even if his application for withholding of 27 28 10 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 removal is ultimately granted.” Resp. at 10. However, before interpreting § 1231(a)(6) to require 2 bond hearings for aliens subject to prolonged detention under § 1231(a)(6), the Diouf II court 3 expressly recognized that some aliens detained pursuant to § 1231(a)(6) would remain subject to a 4 final order of removal in any event. See 634 F.3d at 1085 (“Section 1231(a)(6) encompasses 5 aliens such as Diouf, whose collateral challenge to his removal order (a motion to reopen) is 6 pending in the court of appeals, as well as to aliens who have exhausted all direct and collateral 7 review of their removal orders but who, for one reason or another, have not yet been removed 8 from the United States.”). Thus, the Diouf II court reached its interpretation of § 1231(a)(6) with 9 the understanding that § 1231(a)(6) encompasses aliens who, like Petitioner, can no longer directly 10 United States District Court Northern District of California 11 or collaterally challenge their removal orders. Further, Diouf II rejected a similar argument the government made against extending “the 12 procedural safeguards accorded to aliens detained under § 1226(a)” to “aliens detained under § 13 1231(a)(6).” See 634 F.3d at 1086. In Diouf II, “[t]he government’s primary argument for 14 treating § 1226(a) detainees differently from § 1231(a)(6) detainees is that the former are detained 15 while seeking direct judicial review of administratively final orders of removal whereas the latter 16 are detained while seeking collateral review of final orders of removal (through motions to 17 reopen).” Id. The Ninth Circuit rejected this argument in part because “[r]egardless of the stage 18 of the proceedings, the same important [liberty] interest is at stake—freedom from prolonged 19 detention.” Id. at 1087. Here, Respondents are similarly arguing that § 1231(a)(6) detainees who 20 can still seek collateral review of their final orders of removal should be treated differently from § 21 1231(a)(6) detainees who, like Petitioner, can no longer collaterally challenge their final orders of 22 removal and who have applied for withholding or deferral of their removal orders. But as Diouf II 23 makes clear, “the same important [liberty] interest is at stake” for both of these types of § 24 1231(a)(6) detainees, even though they are at different “stage[s] of the proceedings.” Both types 25 of § 1231(a)(6) detainees have an interest in “freedom from prolonged detention.” Id. 26 27 28 Third, Respondents point out that “unlike the petitioner in Diouf II, who entered the United 11 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER States on a visa and had never been physically removed from the United States, Petitioner has 2 been physically removed from the United States on two prior occasions.” Resp. at 10. However, 3 although Petitioner’s prior deportations may demonstrate that the government’s interests in 4 detaining Petitioner “present qualitatively different concerns than those addressed in Diouf II,” id., 5 Petitioner’s prior deportations do not change the fact that Petitioner has a liberty interest—in 6 being free from prolonged detention—that requires procedural safeguards. See Diouf II, 634 F.3d 7 at 1087 (“Regardless of the stage of the proceedings, the same important interest is at stake— 8 freedom from prolonged detention.”). In other words, Petitioner’s prior deportations may make 9 Respondents even more inclined to continue detaining Petitioner because the prior deportations 10 suggest that Petitioner is a flight risk, but that is exactly the type of concern that bond hearings 11 United States District Court Northern District of California 1 address. See Rodriguez III, 804 F.3d at 1079 (stating that a bond hearing “allows the IJ to 12 consider granting bond” based on “whether the detainee would pose a danger or flight risk if 13 released”). Petitioner’s prior deportations may be used against Petitioner at a bond hearing, but 14 Respondents do not explain why Petitioner’s prior deportations justify denying Petitioner a bond 15 hearing altogether. 16 Fourth, Respondents state that “unlike the petitioner in Diouf II, Petitioner’s removal order 17 in this case is not being judicially reviewed, either directly or collaterally through a motion to 18 reopen.” Resp. at 10. Respondents also call attention to the fact that 8 U.S.C. § 1231(a)(5) bars 19 Petitioner from collaterally attacking his removal order. Id. However, Respondents offer no 20 explanation for why this distinction matters. Furthermore, Petitioner points out that although 21 Petitioner cannot challenge his removal order, Petitioner “could seek judicial review of an adverse 22 decision in [his] withholding-only proceedings.” See Andrade-Garcia v. Lynch, 828 F.3d 829, 23 833 (9th Cir. 2016) (“An IJ's negative determination regarding the alien’s reasonable fear makes 24 the reinstatement order final, see 8 C.F.R. § 208.31(g)(1), and thus subject to [judicial] review 25 under 8 U.S.C. § 1252.”). Thus, like a detainee whose removal order is being judicially reviewed, 26 a detainee awaiting judicial review of an adverse decision in his “withholding-only” proceedings 27 28 12 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 may have to wait in detention for a substantial length of time before judicial review is completed. 2 Therefore, both types of detainees face the prospect of prolonged detention. And, as Diouf II 3 explicitly held, any alien who actually faces prolonged detention under § 1231(a)(6) is entitled to a 4 bond hearing. 634 F.3d at 1092. 5 In sum, because Petitioner has been subject to prolonged detention pursuant to § 6 1231(a)(6), Diouf II clearly commands that Petitioner is entitled to a bond hearing at which the 7 government must justify Petitioner’s continued detention by establishing that Petitioner is a flight 8 risk or a danger to the community. 634 F.3d at 1092 (“We hold that an alien facing prolonged 9 detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk 11 United States District Court Northern District of California 10 of flight or a danger to the community.”). 12 III. 13 CONCLUSION For the foregoing reasons, the Court finds that Petitioner is entitled a bond hearing. 14 However, because the Court has no basis to rule on whether Petitioner is a flight risk or a danger 15 to the community, the Court does not find that Petitioner is entitled to immediate release from ICE 16 custody. Thus, the Court GRANTS in part and DENIES in part Petitioner’s petition for writ of 17 habeas corpus under 28 U.S.C. § 2241 and DENIES as moot Petitioner’s TRO motion. Within 14 18 days of this order, Respondents must provide Petitioner with a bond hearing before an IJ who has 19 the power to grant Petitioner’s release on bond if Respondents fail to establish “by clear and 20 convincing evidence that [Petitioner] is a flight risk or a danger to the community.” Rodriguez III, 21 804 F.3d at 1065. 22 A petitioner may not appeal a final order in a federal habeas corpus proceeding without 23 first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A 24 judge shall grant a certificate of appealability “only if the applicant has made a substantial 25 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court 26 has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is 27 28 13 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 straightforward: the petitioner must demonstrate that reasonable jurists would find the district 2 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 3 473, 484 (2000). Having considered the submissions of the parties, the relevant law, and the 4 record in this case, the Court finds that jurists of reason would not find debatable the Court’s 5 denial of Petitioner’s immediate release from ICE custody. Accordingly, the Court does not issue 6 a certificate of appealability for Petitioner’s claim for immediate release from ICE custody. 7 IT IS SO ORDERED. 8 9 10 United States District Court Northern District of California 11 Dated: October 2, 2017 ______________________________________ LUCY H. KOH United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Case No. 17-CV-05390-LHK ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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