Benavides-Duran v. Asher
Filing
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ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION; petitioner's writ of habeas corpus is granted by Judge Ricardo S Martinez. (RS)cc Duran
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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LIBERATO BENAVIDES-DURAN
Plaintiff,
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v.
NATHALIE R. ASHER, ICE FIELD
OFFICE DIRECTOR
CASE NO. C12-913 RSM
ORDER DECLINING TO ADOPT
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS
CORPUS PETITION
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Respondent.
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I.
SUMMARY
Petitioner proceeding pro se and in forma pauperis has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. 2241, challenging the lawfulness of his continued detention by the
United States Immigration and Customs Enforcement (“ICE”), and seeking either supervised
release or a bond hearing. Dkt. # 7. The government asserts that because Petitioner has received
a bond hearing before an Immigration Judge (“IJ”), he has also received all of the benefits of due
process to which he is entitled, and therefore his habeas petition should be dismissed. Dkt. # 11.
Magistrate Judge James P. Donohue recommends denying Petitioner’s habeas petition, granting
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 1
1 Respondent’s motion to dismiss, and dismissing this matter with prejudice. Dkt. #14. This Court
2 respectfully disagrees and declines to adopt the Report and Recommendation. For the reasons
3 expressed in this Order, this Court grants the writ of habeas corpus, unless within 30 days of this
4 Order, (1) Petitioner is provided with a new Casas hearing applying the standards set forth in this
5 Order, or (2) Respondent can establish that the Casas hearing that took place on May 8, 2012
6 complied with such standards by providing the Court with a contemporaneous record of the
7 hearing.
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II.
BACKGROUND
Petitioner is a native and citizen of Mexico who was admitted to the United States as a
10 lawful permanent resident on February 13, 2006. (Administrative Record (“AR”) at L236-37).
11 On October 28, 2010, Petitioner submitted an Alford Plea1 to the charge of assault in the second
12 degree, was convicted in the Superior Court of Washington for Pierce County, and sentenced to
13 15 months imprisonment. AR L21-31. On December 3, 2010, ICE served Petitioner with a
14 Notice to Appear, charging him as removable from the United States under 8 U.S.C. §
15 1227(a)(2)(A)(i), for having committed a crime involving moral turpitude, and under 8 U.S.C. §
16 1227(a)(2)(A)(iii), for having committed an aggravated felony. AR L9-11. While still
17 incarcerated at the Washington Corrections Center in Shelton, Washington, Petitioner appeared
18 for removal proceedings before an Immigration Judge. On October 26, 2011, the IJ denied
19 Petitioner’s applications for asylum, withholding of removal, and relief under the Convention
20 Against Torture, and ordered him removed from the United States to Mexico. AR L208.
21 Petitioner timely appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). AR
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Petitioner pled guilty but maintained his innocence. See North Carolina v. Alford, 400
24 U.S. 25 (1970).
ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 2
1 L221-23. On or about December 20, 2011, Petitioner was transferred from state prison to ICE
2 custody and detained without bond pursuant to 8 U.S.C. § 1226(c). AR L215. On April 13, 2012,
3 the BIA dismissed Petitioner’s appeal. Dkt. # 11, Ex. A. Petitioner then filed a petition for
4 review (“PFR”) of the BIA’s decision with the Ninth Circuit along with a request for a stay of
5 removal. AR L228. Pursuant to Ninth Circuit General Order 6.4(c)(1), this triggered an
6 automatic stay of removal. Petitioner then became detainable under 8 U.S.C. § 1226(a). On May
7 8, 2012, Petitioner was provided with a bond redetermination hearing pursuant to Casas8 Castrillon v. Dep’t of Homeland Security, 535 F.3d 942 (9th Cir. 2008). The IJ ordered
9 Petitioner’s bond to remain at “no bond.” AR L240. Petitioner reserved appeal but did not appeal
10 the IJ’s bond decision with the BIA. Instead, Petitioner filed a motion to reconsider the IJ’s bond
11 determination. AR L241-43. On May 13, 2012, the IJ issued an order denying Petitioner’s
12 motion for bond redetermination, noting “no materially changed circumstances. 8 C.F.R. §
13 1003.19(e).” Dkt. # 11, Ex. B. On May 24, 2012, Petitioner filed the instant habeas petition,
14 challenging the lawfulness of his continued detention. On July 16, 2012, Respondent filed a
15 return and motion to dismiss. Dkt. # 11. Petitioner did not file a response.
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III.
JURISDICTION
Petitioner challenges the constitutionality of his bond determination hearing. The Court
18 has habeas jurisdiction under 28 U.S.C. 2241(a) to review such hearings for constitutional claims
19 of legal error. Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011).
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Petitioner reserved the right to appeal the IJ’s bond decision which was due by June 7,
21 2012. AR L240. Petitioner, however, did not appeal the IJ’s bond decision with the BIA, which
22 means he has not exhausted his administrative remedies. Nonetheless, “[o]n habeas review under
23 § 2241, exhaustion is a prudential rather than jurisdictional requirement.” Singh, 638 F.3d at1203
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 3
1 n.3 (internal citations omitted). In the interests of justice, this Court will exercise its discretion to
2 waive the exhaustion requirement.2
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IV.
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DISCUSSION
It is helpful to first determine under what authority Petitioner is currently being detained.
5 Petitioner was charged with being removable for having committed a crime involving moral
6 turpitude under 8 U.S.C. § 1227(a)(2)(A)(i), and for having committed an aggravated felony
7 under 8 U.S.C. § 1227(a)(2)(A)(iii), making him removable from the United States under 8
8 U.S.C. § 1226(c) (“[t]he Attorney General shall take into custody any alien who ... is deportable
9 by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), ....”)
10 (emphasis added). Nonetheless, the Attorney General’s authority to detain Petitioner shifted from
11 Section 8 U.S.C. § 1226(c) to 8 U.S.C. § 1226(a) after he filed a PFR with the Ninth Circuit
12 Court of Appeals. (…an alien may be arrested and detained pending a decision on whether the
13 alien is to be removed from the United States.) (emphasis added). Therefore, Petitioner is
14 detained under § 1226(a) until he enters his removal period, which would occur only after the
15 Court of Appeals rejects his final petition for review. Casas–Castrillon, 535 F.3d at 948. Statutes
16 governing removal and detention of immigrants are usually not a notable example of
17 intelligibility, but in this case it is clear that Petitioner’s detention is permissible, not mandatory.
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Having determined that the government’s authority to detain Petitioner falls under §
19 1226(a), the Court now turns to the question of whether Petitioner is entitled to habeas corpus
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This Court decided to waive the exhaustion requirement after analyzing the elements courts
21 consider when determining the need for prudential exhaustion as described in Puga v. Chertoff,
488 F.3d 812, 815 (9th Cir.2007). The Court finds that (1) the BIA record and expertise on this
22 issue is not necessary to generate a proper record and reach a proper decision, (2) this waiver will
not encourage future habeas petitioners to attempt to bypass administrative review due to the
23 specificity of the question presented, and (3) a review of this issue by the BIA would not
preclude the need for judicial review.
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 4
1 relief. Petitioner contends that his due process rights were violated and moves the Court to order
2 the IJ to conduct “a bond hearing where individual factors are considered”. Dkt. # 7 at 1. In
3 response, the government argues that “[b]ecause petitioner was given a Casas bond hearing,
4 before a neutral arbitrator, the requirements of due process have been met and the case is moot.”
5 Dkt. # 11 at 5. While Petitioner did receive a Casas bond hearing before an Immigration Judge
6 on May 8, 2012, the mere fact that the hearing took place does not compel a finding that it
7 complied with due process requirements.
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It is well established that the Fifth Amendment entitles immigrants to due process of law
9 in removal proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993) (internal citation omitted).
10 The Ninth Circuit Court of Appeals has held that immigrants facing prolonged detention are
11 entitled to a bond hearing to establish whether their release would pose a danger to the
12 community or a flight risk. Casas–Castrillon, 535 F.3d at 944. In Singh, 638 F.3d 1196, the
13 Court established certain procedures that must be followed in those hearings to comport with due
14 process: (1) the Immigration Judge must place the burden of proof on the government; (2) the
15 government must prove by clear and convincing evidence that continued detention is justified;
16 (3) the immigrant’s criminal history alone may be insufficient to meet the dangerousness
17 standard that must be met to deny bond and justify detention; and (4) the government must
18 provide contemporaneous records of Casas hearings. The Court will now address each of those
19 elements.
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1. Burden of proof
“The burden of establishing whether detention is justified falls on the government.”
22 Singh, 638 F.3d at 1203; Casas–Castrillon, 535 F.3d at 951 (“[A]n alien is entitled to release on
23 bond unless the ‘government establishes that he is a flight risk or will be a danger to the
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 5
1 community.’ ” (quoting Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir.2005)). Here, the
2 government filed a non-opposition motion for a Casas bond hearing arguing that the Petitioner
3 “poses a significant danger to the community and poses a significant risk of flight.” AR L252.
4 This Court was not provided with a transcript of the Casas hearing that took place on May 8,
5 2012. Instead, the only Immigration Court record of the Casas hearing the Court was provided is
6 the Custody Order of the Immigration Judge stating that the request for a change in custody
7 status be denied and bond remain at “no bond”.3 AR L240. Due to the lack of a real-time record
8 of the hearing, it is impossible to access whether the IJ properly placed the burden of proof on
9 the government.
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2. Standard of proof
Given the substantial liberty interest at stake, the government must prove by clear and
12 convincing evidence that an immigrant is a flight risk or a danger to the community to justify
13 denial of bond at a Casas hearing. Singh, 638 F.3d at 1203. Once again, the Court cannot review
14 the Immigration Judge’s findings regarding Petitioner’s dangerousness and flight risk, as the
15 Court was not provided with a real-time record of the Casas hearing. Even though the
16 government in its motion asserts that Petitioner is a flight risk and dangerous to the community,
17 it does not appear from the available record that the government presented any evidence to that
18 effect at the Casas hearing. As to the probable argument that Petitioner is a flight risk because he
19 has been ordered removed by a final, administrative order, that alone does not constitute clear
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The Court was provided with a one page form called Custody Order of the Immigration
Judge, dated May 8, 2012, and signed by IJ Thomas J. Mulligan. The IJ checked the box
23 ordering that Petitioner’s request for a change in custody be denied and handwrote that bond
should remain at “no bond.” No analysis or other information as to how the IJ arrived at such
24 determination was provided.
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 6
1 and convincing evidence that Petitioner presented a flight risk justifying denial of bond. Id. at
2 1205.
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3. Dangerousness standard
The purpose of an individualized Casas bond hearing is to ensure that the government's
5 interest in detaining the immigrant and protecting the community from danger is actually served
6 by detention. Id at 1206. Because not all criminal convictions necessarily rise to the level of
7 dangerousness needed to justify detention, immigration judges should consider the immigrant’s
8 criminal record in depth, including extensiveness, seriousness, and recency of such activity when
9 assessing dangerousness. Id at 1206. Cf. Foucha, 504 U.S. 71, 82–83 (requiring a showing of
10 dangerousness beyond that “of any convicted criminal” to justify civil detention of the criminally
11 insane). Criminal history alone does not always justify detention; after all, every criminal
12 immigrant who receives a Casas hearing has in all likelihood been convicted of a crime giving
13 rise to the removal order. Singh, 638 F.3d at 1206.
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Here, Petitioner allegedly brandished a knife during a fight (AR L231) and pled guilty to
15 the charge of assault in the second degree while maintaining his innocence. As he puts it, “I am
16 not admitting that I committed this offense, however, there is a substantial likelihood that I
17 would be convicted and face a more serious sentence. I want to take advantage of the [S]tate’s
18 offer and enter a plea of guilty.” AR L34. Petitioner is twenty years old and has no other criminal
19 history other than the offense that triggered the present immigration case. AR L242.
20 Consequently, without a contemporaneous record of the Casas hearing, there are not enough
21 facts to support the IJ’s conclusion that Petitioner is a flight risk and a danger to the community
22 under Singh.
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4. Records
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 7
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Finding that post hoc memorandum following a bond determination hearing is
2 inadequate, the Ninth Circuit Court of Appeals held that due process requires a contemporaneous
3 record of such hearings, which could, for example, be satisfied by transcript or oral recording.
4 Singh, 638 F.3d at 1208-09. Based on Petitioner’s A file and the record provided in this case,
5 there is no transcript, or other adequate substitute, of Petitioner’s Casas hearing that would
6 provide for meaningful review. Absent such record, this Court finds that Petitioner was denied
7 his due process rights as established in Singh.
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V.
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CONCLUSION
Accordingly, the Court, having reviewed Petitioner’s writ of habeas corpus (Dkt. # 7),
10 Respondent’s motion to dismiss (Dkt. # 11), the Report and Recommendation of the Honorable
11 James P. Donohue, United States Magistrate Judge, (Dkt. # 14) and the remaining record, does
12 hereby find and ORDER:
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1.
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The Report and Recommendation from United States Magistrate Judge James P.
Donohue is DECLINED.
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2.
Petitioner’s Writ of Habeas Corpus (Dkt. # 7) is GRANTED unless within 30
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days of this Order, (1) Petitioner is provided with a new Casas hearing applying
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the standards set forth in this Order under Singh, 638 F.3d 1196 or (2)
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Respondents can establish that the Casas hearing that took place on May 8, 2012
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complied with such standards by providing the Court with contemporaneous
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record of the hearing.
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3.
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Respondent’s Motion to Dismiss (Dkt. # 11) is DENIED.
//
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 8
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4.
The Clerk shall send copies of this Order to Petitioner and to the Honorable James
P. Donohue.
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DATED this 9th day of November 2012.
A
RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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ORDER DECLINING TO ADOPT MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND
GRANTING WRIT OF HABEAS CORPUS PETITION - 9
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