(HC) Palomar v. Sessions, III et al, No. 1:2017cv00638 - Document 15 (E.D. Cal. 2018)
Court Description: ORDER Granting in Part Respondents' 11 Motion to Dismiss; ORDER Denying in Part Petition for Writ of Habeas Corpus signed by Magistrate Judge Erica P. Grosjean on 02/14/2018. Sixty-Day Deadline. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Case No. 1:17-cv-00638-EPG-HC ARTURO VALENZUELA PALOMAR, Petitioner, 13 ORDER GRANTING IN PART RESPONDENTS’ MOTION TO DISMISS v. 14 ORDER DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS JEFFREY B. SESSIONS III, et al., 15 (ECF No. 11) Respondents. 16 Petitioner is a federal immigration detainee proceeding pro se1 with a petition for writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges his continued detention 19 pending removal proceedings. For the reasons stated herein, the Court grants in part 20 Respondents’ motion to dismiss and denies in part the petition for writ of habeas corpus. 21 I. 22 BACKGROUND Petitioner was taken into the custody of U.S. Immigration and Customs Enforcement 23 2 24 (“ICE”) on June 10, 2016, during a routine criminal alien program at Wasco State Prison. (ECF 3 25 No. 1 at 2). Petitioner alleges that at that time, ICE made a custody determination that Petitioner 26 1 On January 3, 2018, the Court granted attorney Ruben Salazar’s motion to withdraw as Petitioner’s counsel. (ECF 27 No. 14). 2 28 3 Petitioner was serving a one-year sentence for attempted burglary. (ECF No. 1 at 2). Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 was subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). (Id.). Petitioner subsequently 2 was placed in removal proceedings as an alien present in the United States without being 3 admitted or paroled, in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality 4 Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i). (ECF No. 1 at 2). Petitioner’s immigration proceeding 5 remains pending in the San Francisco Immigration Court. (Id. at 3). 6 On November 1, 2016, the immigration judge (“IJ”) conducted a custody redetermination 7 hearing and denied Petitioner’s request for a change in custody status. (ECF No. 1 at 31). On 8 December 5, 2016, the IJ issued a written memorandum denying custody redetermination, 9 finding Petitioner a danger to the community in light of the seriousness of Petitioner’s recent 10 criminal activity. (ECF No. 11-1 at 2–3). Petitioner appealed the decision, and the Board of 11 Immigration Appeals (“BIA”) dismissed the appeal on March 21, 2017. (ECF No. 1 at 34–35). 12 On March 23, 2017, Petitioner received another bond hearing. The IJ again denied Petitioner’s 13 request for a change in custody status. (ECF No. 1 at 37). 14 On May 3, 2017, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 15 1). On July 10, 2017, Respondents filed a motion to dismiss. (ECF No. 11). Petitioner has filed 16 an opposition. (ECF No. 12). The parties have consented to the jurisdiction of the United States 17 Magistrate Judge. (ECF Nos. 9, 10). 18 II. 19 DISCUSSION 20 In the petition, Petitioner appears to raise the following claims for relief: (1) denial of a 21 bond hearing before a neutral decision-maker, in violation of the Due Process Clause; (2) 22 prolonged detention, in violation of the Due Process Clause; and (3) the immigration judge’s 23 abuse of discretion in determining that continued detention was justified given that Petitioner 24 met his burden and demonstrated that he does not pose a danger to the community. (ECF No. 1 at 25 7, 12). Additionally, Petitioner alleges that he is suffering irreparable injury due to his prolonged 26 detention, citing to publications regarding the conditions at the Mesa Verde Detention Facility 27 and its distance from the immigration court. (Id. at 9–10). Petitioner requests for relief include, 28 inter alia, that the Court “issue a declaratory judgment stating that Petitioner is eligible to be 2 1 immediately released on bond,” “issue a declaratory statement that the Immigration Court has 2 abused its discretion,” and “order that Petitioner be released immediately from DHS custody 3 either without bond or with bond in a reasonable amount to be determined by this Court.” (ECF 4 No. 1 at 13). 5 In the motion to dismiss, Respondents argue that the petition should be dismissed on the 6 following grounds: (1) lack of jurisdiction to review the immigration judge’s discretionary bond 7 determination pursuant to 8 U.S.C. § 1226(e); (2) failure to exhaust administrative remedies with 8 respect to the March 23, 2017 bond hearing; and (3) any challenge to the initial bond hearing is 9 stale in light of Petitioner’s subsequent bond hearing. (ECF No. 11 at 5, 7). Regardless, 10 Respondents contend that the petition should be denied on the merits as Petitioner has been 11 provided adequate due process. (Id. at 7). 12 A. Immigration Bond Hearings 13 Congress has enacted a complex statutory scheme governing the detention of noncitizens 14 during removal proceedings and following the issuance of a final order of removal. “Where an 15 alien falls within this statutory scheme can affect whether his detention is mandatory or 16 discretionary, as well as the kind of review process available to him if he wishes to contest the 17 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 18 With respect to initial bond determinations, the Ninth Circuit has described the procedure 19 as follows: 20 21 22 23 24 25 26 27 28 When a non-citizen is detained pursuant to § 1226(a), “the [Department of Homeland Security (“DHS”)] district director makes an initial custody determination and may allow the alien’s release on bond.” Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008) (citing 8 C.F.R. § 236.1(d)). “If the alien objects to the director’s bond determination, he may request a bond redetermination hearing before an IJ at any time before the issuance of an administratively final order of removal.” Id. (citing 8 C.F.R. §§ 236.1(d), 1003.19(c)). At this stage, the burden is on the non-citizen to “establish to the satisfaction of the Immigration Judge . . . that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight.” In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). If the DHS officer or IJ determines that the non-citizen does not pose a danger and is likely to appear at future proceedings, then he may release the non-citizen on bond or other conditions of release. 3 See Prieto-Romero, 534 F.3d at 1058; 8 C.F.R. §§ 236.1(d), 1003.19. If the non-citizen disagrees with the IJ’s bond determination or wishes to challenge the amount of bond set by the IJ, he may also “appeal the IJ’s bond decision to the BIA.” PrietoRomero, 534 F.3d at 1058 (citing 8 C.F.R. § 236.1(d)(3)). 1 2 3 4 Hernandez v. Sessions, 872 F.3d 976, 982–83 (9th Cir. 2017) (footnotes omitted). To determine 5 whether the noncitizen has established that he does not present a flight risk or danger to the 6 community, the IJ must consider the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 7 2006). Prieto-Romero, 534 F.3d at 1066. The Ninth Circuit has held that a noncitizen subjected to prolonged detention4 under 8 9 § 1226(a) is entitled to a hearing and individualized determination as to whether continued 10 detention is necessary based on dangerousness or flight risk. Casas-Castrillon v. Dept. of 11 Homeland Sec., 535 F.3d 942, 949–52 (9th Cir. 2008). Additionally, “the government must 12 provide periodic bond hearings every six months so that noncitizens may challenge their 13 continued detention as ‘the period of . . . confinement grows.’” Rodriguez v. Robbins (Rodriguez 5 14 III), 804 F.3d 1060, 1089 (9th Cir. 2015) (quoting Diouf v. Napolitano (Diouf II), 634 F.3d 15 1081, 1091 (9th Cir. 2011)). “At these ‘Rodriguez hearings,’ unlike at the initial bond 16 determination, ‘the government must prove by clear and convincing evidence that an alien is a 17 flight risk or a danger to the community to justify denial of bond.’” Hernandez, 872 F.3d at 983 18 n.8 (quoting Rodriguez III, 804 F.3d at 1087). 19 B. Jurisdiction 20 Relying on 8 U.S.C. § 1226(e), Respondents argue that this Court “lacks jurisdiction over 21 Petitioner’s claim that the immigration judge’s decision to detain him initially was based on an 22 erroneous determination that he is a danger to the community.” (ECF No. 11 at 7). Section 1226(e) provides: 23 The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court 24 25 4 “As a general matter, detention is prolonged when it has lasted six months and is expected to continue more than 26 minimally beyond six months.” Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011). 5 The Supreme Court granted certiorari. Jennings v. Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016). On 27 October 3, 2017, the parties reargued the case. Docket for Case No. 15-1204, Supreme Court of the United States, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/15-1204.html (last visited Jan. 28 29, 2018). Rodriguez III is controlling precedent in the Ninth Circuit until the Supreme Court issues its decision. 4 1 2 may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. 3 8 U.S.C. § 1226(e). The Ninth Circuit has held that “[a]lthough § 1226(e) restricts jurisdiction in 4 the federal courts in some respects, it does not limit habeas jurisdiction over constitutional claims 5 or questions of law.” Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). Therefore, while 6 “the Attorney General’s ‘discretionary judgment . . . shall not be subject to review,’ claims that 7 the discretionary process itself was constitutionally flawed are ‘cognizable in federal court on 8 habeas because they fit comfortably within the scope of § 2241.’” Id. (quoting Gutierrez-Chavez 9 v. INS, 298 F.3d 824, 829 (9th Cir. 2002)). 10 To the extent Petitioner asks this Court to reverse the IJ’s denial of release on bond and 11 find that Petitioner is eligible to be released on bond, the Court lacks jurisdiction and dismissal is 12 warranted. See 8 U.S.C. § 1226(e); Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001) 13 (“[A] petitioner may not create the jurisdiction that Congress chose to remove simply by 14 cloaking an abuse of discretion argument in constitutional garb.”). Accordingly, the Court will 15 grant Respondents’ motion to dismiss with respect to Petitioner’s claim that the IJ abused his 16 discretion in determining that continued detention was justified and denying bond. 17 However, claims that the discretionary process itself was constitutionally flawed are 18 cognizable in federal habeas corpus, Singh, 638 F.3d at 1202, and dismissal is not warranted 19 with respect to those claims. Accordingly, the Court has jurisdiction over Petitioner’s claims that 20 denial of a bond hearing before a neutral decision-maker and his prolonged detention violate due 21 process, and addresses these issues on the merits below. 22 C. Exhaustion 23 Respondents argue that the petition should be dismissed because Petitioner failed to 24 exhaust administrative remedies with respect to his March 23, 2017 bond hearing. (ECF No. 11 25 at 5). “As a prudential matter, courts require that habeas petitioners exhaust all available judicial 26 and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 F.3d 27 1042, 1045 (9th Cir. 2012) (citations omitted). The exhaustion requirement is subject to waiver 28 in § 2241 proceedings if pursuing available remedies would be futile. Id. 5 1 Here, Petitioner has exhausted his administrative remedies with respect to the November 2 1, 2016 initial bond hearing. (ECF No. 1 at 34–35). In the opposition to the motion to dismiss, 3 Petitioner clarifies that he is not challenging his most recent Rodriguez bond hearing, which 4 occurred on March 23, 2017. (ECF No. 12 at 4). Accordingly, the Court finds that dismissal is 5 not warranted on exhaustion grounds. 6 D. Mootness 7 Respondents argue that the petition should be dismissed because any challenge to the 8 initial bond hearing is stale in light of Petitioner’s subsequent Rodriguez bond hearing. (ECF No. 9 11 at 6–7). The jurisdiction of federal courts is limited to “actual, ongoing cases or 10 controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). “This case-or11 controversy requirement subsists through all stages of federal judicial proceedings,” which 12 “means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an 13 actual injury traceable to the defendant and likely to be redressed by a favorable judicial 14 decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 477). 15 One exception to the mootness doctrine is “a special category of disputes that are 16 ‘capable of repetition’ while ‘evading review.’” Turner v. Rogers, 564 U.S. 431, 439 (2011) 17 (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). This exception 18 applies when “(1) the challenged action [is] in its duration too short to be fully litigated prior to 19 its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining 20 party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 21 (1975) (per curiam). “The capable of repetition, yet evading review exception has been applied 22 to permit appellate review of constitutional or statutory challenges to pretrial and other initial 23 proceedings despite the regular progression of further proceedings making it ‘no longer possible 24 to remedy the particular grievance giving rise to the litigation.’” Sherman v. U.S. Parole 25 Comm’n, 502 F.3d 869, 872 (9th Cir. 2007) (quoting United States v. Howard, 480 F.3d 1005, 26 1009 (9th Cir. 2007)). 27 The Ninth Circuit has held that “the government must provide periodic bond hearings 28 every six months so that noncitizens may challenge their continued detention as the period of . . . 6 1 confinement grows.” Rodriguez III, 804 F.3d at 1089 (internal quotation marks and citation 2 omitted). Therefore, Petitioner’s detention that was authorized by the initial bond hearing is in its 3 duration too short to be fully litigated before the government “takes further action providing 4 superceding authority for the detention.” Sherman, 502 F.3d at 872 (applying capable of 5 repetition yet evading review exception to parolee’s challenge to initial detention pursuant to 6 parole violator warrant that was later authorized pursuant to preliminary hearing and revocation 7 hearing). 8 Additionally, there is a reasonable expectation that the same complaining party will be 9 subjected to the same action again. Petitioner has been detained since June 2016; as of the filing 10 of the instant petition, Petitioner has had two bond hearings and has not been released. Pursuant 11 to Rodriguez III, Petitioner is entitled to a bond hearing every six months. As Petitioner will be 12 subjected to bond hearings every six months while he remains detained pending completion of 13 his removal proceedings, the instant petition is not moot because the underlying dispute is 14 capable of repetition, yet evading review. 15 Accordingly, dismissal is not warranted on mootness grounds and the Court will proceed 16 to address Petitioner’s claims with respect to the November 1, 2016 initial bond hearing. 17 E. Due Process 18 1. Neutral Decision Maker 19 Petitioner asserts that he “is entitled to a bond hearing before a neutral decision-maker 20 other than a DHS official” and contests “DHS’s refusal to provide a hearing before a neutral 21 judge.” (ECF No. 1 at 7 ¶¶ 22, 23). On November 1, 2016, Petitioner appeared before an IJ for a 22 bond hearing. (ECF No. 1 at 31). Petitioner provides no factual allegations to support his 23 assertion that the IJ was not neutral. To the extent Petitioner argues that no immigration judge 24 can be a neutral decision maker, the Court finds such argument to be unpersuasive. See Casas, 25 535 F.3d at 950 (referencing an immigration judge as a neutral decision maker). Accordingly, 26 Petitioner is not entitled to habeas relief on this ground. 27 2. Prolonged Detention 28 Relying on Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 7 1 (2003), Petitioner asserts that his prolonged detention is unconstitutional. (ECF No. 1 at 8). 2 Zadvydas involved a challenge to prolonged detention under § 1231(a)(6) by noncitizens who 3 “had been ordered removed by the government and all administrative and judicial review was 4 exhausted, but their removal could not be effectuated because their designated countries either 5 refused to accept them or the United States lacked a repatriation treaty with the receiving 6 country.” Prieto-Romero, 534 F.3d at 1062 (citing Zadvydas, 533 U.S. at 684–86). The Supreme 7 Court held that § 1231(a)(6) does not authorize indefinite detention and “limits an alien’s post8 removal-period detention to a period reasonably necessary to bring about that alien’s removal 9 from the United States.” Zadvydas, 533 U.S. at 689. Thus, after a presumptively reasonable 10 detention period of six months, a noncitizen was entitled to release if “it has been determined 11 that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. at 701. 12 Petitioner’s case is distinguishable from Zadvydas because Petitioner’s detention is 13 authorized by § 1226(a) rather than § 1231(a)(6). Additionally, unlike the petitioners in 14 Zadvydas, Petitioner “is not stuck in a ‘removable-but-unremovable limbo’” and Petitioner does 15 not allege that his receiving country lacks a repatriation treaty with the United States or will 16 refuse to accept him in the event Petitioner is unsuccessful in challenging the removal 17 proceedings. Prieto-Romero, 534 F.3d at 1063. Petitioner’s “detention lacks a certain end date, 18 but this uncertainty alone does not render his detention indefinite in the sense the Supreme Court 19 found constitutionally problematic in Zadvydas.” Id. 20 Demore concerned § 1226(c), which proscribes mandatory detention for noncitizens 21 convicted of certain crimes. Demore, 538 U.S. at 513. In Demore, the Supreme Court upheld its 22 “longstanding view that the Government may constitutionally detain deportable aliens during the 23 limited period necessary for their removal proceedings.” Id. at 526. The Supreme Court 24 distinguished Zadvydas by emphasizing that mandatory detention under § 1226(c) has “a definite 25 termination point” and “in the majority of cases it lasts for less than the 90 days . . . considered 26 presumptively valid in Zadvydas.” Id. at 529. Citing Demore, Petitioner asserts that “case law 27 indicates that mandatory detention which lasts more than a period of 6 months is 28 unconstitutional.” (ECF No. 1 at 8 ¶ 30) (emphasis deleted). Prolonged detention is not per se 8 1 unconstitutional. Rather, after Zadvydas and Demore, the Ninth Circuit has recognized that 2 “prolonged detention without adequate procedural protections would raise serious constitutional 3 concerns.” Casas, 535 F.3d at 950 (emphasis added). Here, Petitioner received the process he was due: an individualized determination by an 4 5 IJ who identified the correct legal standard and looked at the Guerra factors in determining 6 whether Petitioner posed a danger or flight risk. (ECF No. 11-1 at 2–3). Petitioner asserts that the 7 IJ wrongfully interpreted and applied the statute. (ECF No. 1 at 7 ¶ 21; ECF No. 12 at 5). 8 However, Petitioner does not specify in what way the IJ committed legal error. Rather, Petitioner 9 merely asserts that the “refusal to establish a bond is unjustified, unreasonable, and contrary to 10 law.” (Id.). As Petitioner has received adequate procedural protections, Petitioner is not entitled 11 to habeas relief with respect to his prolonged detention and the November 1, 2016 initial bond 12 hearing. 13 F. Mesa Verde Detention Facility 14 In the opposition to the motion to dismiss, Petitioner asserts that the petition raises claims 15 relating to the conditions at the Mesa Verde Detention Facility and its distance from the 16 immigration courts. (ECF No. 12 at 6–7). As these issues were not addressed in Respondents’ 17 motion to dismiss, the Court will order that Respondents file a response with respect to these 18 issues. 19 III. 20 ORDER 21 Accordingly, the Court HEREBY ORDERS that: 22 1. The motion to dismiss (ECF No. 11) is GRANTED IN PART with respect to Petitioner’s 23 claim that the IJ abused his discretion in determining that continued detention was 24 justified and denying bond. 25 26 2. The petition for writ of habeas corpus is DENIED IN PART with respect to Petitioner’s claims regarding his prolonged detention and the November 1, 2016 initial bond hearing. 27 3. Within SIXTY (60) days of the date of service of this order, Respondents SHALL FILE 28 a RESPONSE to the issues regarding the Mesa Verde Detention Facility. See Rule 4, 9 1 Rules Governing Section 2254 Cases;6 Cluchette v. Rushen, 770 F.2d 1469, 1473–74 (9th 2 Cir. 1985) (court has discretion to fix time for filing a response). A Response can be 3 made by filing one of the following: 4 A. AN ANSWER addressing the merits of the remaining issues. Any argument 5 by Respondents that Petitioner has procedurally defaulted the claims SHALL 6 BE MADE in the ANSWER, but must also address the merits of the claims 7 asserted. B. A MOTION TO DISMISS the remaining issues. 8 9 4. Within SIXTY (60) days after service of this order, Respondents SHALL FILE any and 10 all transcripts or other documents necessary for the resolution of the remaining issues. 11 See Rule 5(c), Rules Governing Section 2254 Cases. 12 5. If Respondents file an Answer, Petitioner MAY FILE a Traverse within THIRTY (30) 13 days of the date of service of Respondents’ Answer. If no Traverse is filed, the Petition 14 and Answer are deemed submitted at the expiration of the thirty days. 15 6. If Respondents file a Motion to Dismiss, Petitioner SHALL FILE an Opposition or 16 Statement of Non-Opposition within TWENTY-ONE (21) days of the date of service of 17 Respondents’ Motion. Any Reply to an Opposition to the Motion to Dismiss SHALL be 18 filed within SEVEN (7) days after the opposition is served. The Motion to Dismiss will 19 be deemed submitted TWENTY-EIGHT (28) days after the service of the Motion or 20 when the Reply is filed, whichever comes first. See Local Rule 230(l). 21 22 IT IS SO ORDERED. 23 Dated: February 14, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6 The Rules Governing Section 2254 Cases apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered by” 28 U.S.C. § 2254.). 10
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