Soto Soto v. Sessions et al, No. 3:2018cv02891 - Document 20 (N.D. Cal. 2018)

Court Description: ORDER Denying Petition for Habeas Corpus. Signed by Judge Edward M. Chen on 7/30/2018. (emcsec, COURT STAFF) (Filed on 7/30/2018)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DELFINA SOTO SOTO, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 18-cv-02891-EMC ORDER DENYING PETITION FOR HABEAS CORPUS v. JEFF SESSIONS, et al., Defendants. 12 13 Petitioner Delfina Soto Soto is an alien currently detained by Immigration and Customs 14 Enforcement (“ICE”), a division of the United States Department of Homeland Security (“DHS”). 15 Pet ¶ 1. She argues that her detention is indefinite in violation of her due process rights. She filed 16 a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking either a new bond 17 hearing for prolonged detention where the government would bear the burden to prove flight risk 18 or danger to the community or, alternatively, immediate release. The government filed a return in 19 opposition; Ms. Soto did not file a traverse. Both parties submitted supplemental briefing as 20 ordered by the Court. The matter came before the Court on June 28, 2018. Thereafter, Ms. Soto 21 filed a supplemental brief which the Court has considered although Ms. Soto failed to seek leave 22 of Court before doing so. See Local Civ. R. 7-3(d) (“Once a reply is filed, no additional 23 memoranda, papers or letters may be filed without prior Court approval[.]”). 24 25 26 27 28 For the reasons below, the Court DENIES Ms. Soto’s requests for both a bond hearing and for immediate release. I. FACTUAL & PROCEDURAL BACKGROUND Under 28 U.S.C. § 2248, “[t]he allegations of a return to the writ of habeas corpus . . . if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence 1 that they are not true.” 28 U.S.C. § 2248. As Ms. Soto did not file a traverse, the government’s 2 factual contentions are taken as true unless contradicted by evidence. 3 Ms. Soto is a Mexican national who entered the United States without inspection on or 4 after December 27, 2012. Pet ¶ 9; Exh. B.1 She has been detained by ICE since November 28, 5 2017. Pet ¶ 9. Ms. Soto is detained pursuant to 8 U.S.C. § 1226(a), which provides that “[o]n a 6 warrant issued by the Attorney General, an alien may be arrested and detained pending a decision 7 on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a) (codifying 8 Immigration and Nationality Act (INA) § 236(a)). 9 There is a warrant for Ms. Soto for aggravated kidnapping issued by a trial court in Michoacán, Mexico. Exh. C. An INTERPOL Red Notice (request to locate and provisionally 11 United States District Court Northern District of California 10 arrest an individual pending extradition) was issued for Ms. Soto on November 12, 2015 and last 12 updated on January 26, 2018. Exh. D. The Red Notice indicates the kidnapping resulted in the 13 death of a five-year-old minor. Id. Ms. Soto alleges that she was tortured during the interrogation 14 that prompted the Mexican arrest warrant. Exh. N. Ms. Soto was afforded an initial bond hearing on March 7, 2018. Exhs. K-L. The hearing 15 16 was originally set for Dec 19, 2017, but was continued, twice at Ms. Soto’s request (once for 17 attorney preparation and once to obtain Ms. Soto’s Mexican criminal case documents though these 18 were never presented to the immigration judge), once sua sponte by the court, and once to obtain a 19 Purépecha interpreter, as Purépecha is Ms. Soto’s best language. Exhs. K-L; Morris Dec. ¶ 12. 20 The immigration judge (IJ) denied Ms. Soto’s bond request on March 7 because the IJ found her 21 to be a danger to the community and a flight risk. Exh. L; Morris Dec. ¶ 13. Ms. Soto had until 22 April 6, 2018 to appeal the decision to the Board of Immigration Appeals (BIA) but did not do so. 23 Morris Dec. ¶ 13; Exh. L; see also 8 CFR § 1003.38(b) (providing 30 calendar days to file an 24 appeal of an IJ’s decision with the BIA). Ms. Soto filed a habeas corpus petition with this Court 25 on May 17, 2018. Ms. Soto’s habeas petition does not disclose this March 7, 2018 bond hearing.2 26 1 27 Unless otherwise noted, all exhibits cited are attached to the Declaration of Eben J. Morris, Docket No. 12. 28 2 Petitioner’s counsel is warned that he has a duty of candor to the Court. See Local Civ. R. 112 1 Since the filing of her petition with this Court, Ms. Soto’s removal proceedings have been 2 terminated. In particular, at a master calendar hearing on March 22, 2018, Ms. Soto conceded all 3 factual allegations and the charge of inadmissibility. Morris Dec. ¶ 14. She requested relief from 4 removal and protection under the Convention Against Torture; a merits hearing was scheduled. 5 Id.; Exh. N. On May 31, 2018, the IJ terminated Ms. Soto’s removal proceedings without 6 prejudice because Ms. Soto could not be provided an interpreter in her best language (Purépecha), 7 and to conduct the hearing without an interpreter would violate her due process rights. Exh. N at 2 8 (citing Perez-Lastor v. I.N.S., 208 F.3d 773 (9th Cir. 2000)). The government represents that ICE 9 has since appealed this decision to the BIA. 10 The government concedes that termination of Ms. Soto’s proceedings makes her eligible to United States District Court Northern District of California 11 seek a bond redetermination before the IJ due to materially changed circumstances per 8 C.F.R. 12 §1003.19(e), and that it would not oppose such a request but would oppose Ms. Soto’s release on 13 bond. Docket No. 15; Docket No. 17, Hr’g, June 28, 2018. Ms. Soto has not sought a 14 redetermination and instead requests the Court order a new bond hearing where the government 15 (rather than Ms. Soto) bears the burden to show Ms. Soto is a flight risk or a danger to the 16 community. Ms. Soto currently remains in detention pursuant to § 1226(a). Docket No. 15. 17 II. DISCUSSION 18 Defendants argue that Ms. Soto must exhaust her administrative remedies before seeking 19 relief in this Court. Alternatively, Defendants argue that Ms. Soto’s due process rights have not 20 been violated because only three months have passed since her last bond hearing. For the reasons 21 explained below, Ms. Soto need not exhaust her administrative remedies as the process available 22 would be futile. Nevertheless, due process does not require that she be provided another bond 23 hearing at this time. She is not facing indefinite detention, there is no statutory basis for automatic 24 § 1226(a) bond hearings after six months, and due process does not, at this time and on these facts, 25 26 27 28 4(a) (attorneys admitted to this Court must comply with the State Bar of California’s standards of professional conduct and “[p]ractice with the honesty, care, and decorum required for the fair and efficient administration of justice”); Cal. Rules of Prof. Conduct, Rule 5-200(B) (“In presenting a matter to a tribunal, a member . . . [s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law[.]”); Cal. Bus. & Prof. Code § 6068(d). 3 1 require more procedural protections than she has already been provided. It follows that Ms. Soto 2 is not entitled to immediate release, either. 3 A. Ms. Soto’s Failure to Exhaust Administrative Remedies is Waived for Futility “When a petitioner does not exhaust administrative remedies, a district court ordinarily 4 5 should either dismiss the petition without prejudice or stay the proceedings until the petitioner has 6 exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 7 (9th Cir. 2011). Administrative exhaustion by those seeking relief under § 2241 is a prudential, 8 not jurisdictional, prerequisite in the Ninth Circuit, and can thus be waived. Trinidad v. Sessions, 9 No. 3:17-CV-06877-JD, WL 2010618, at *1 (N.D. Cal. Apr. 30, 2018). Futility is one of the grounds for waiver. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004). An action is futile if 11 United States District Court Northern District of California 10 the BIA’s view is “already set” or the outcome is “very likely.” El Rescate Legal Servs., Inc. v. 12 Exec. Office of Immigration Review, 959 F.2d 742, 747-48 (9th Cir. 1991) (holding petitioner need 13 not exhaust administrative remedies to challenge a translation policy which the BIA had 14 announced and reaffirmed). Here, Ms. Soto’s available administrative remedy is futile. Although she can seek a bond 15 16 redetermination per 8 C.F.R. § 1003.19(e), Ms. Soto will bear the burden as in her initial bond 17 hearing to prove “by clear and convincing evidence” both “that release would not pose a danger to 18 other persons or to property” and that she “is likely to appear for any scheduled proceeding or 19 interview.” 8 C.F.R. § 1003.19(h)(3). Bond was denied at the first hearing because Ms. Soto was 20 not able to meet this burden. Exh. L. As she would bear the same burden at a § 1003.19(e) 21 redetermination and no relevant circumstances have changed, it is “very likely” that Ms. Soto will 22 again be denied bond. The fact that the removal proceedings have been terminated without 23 prejudice is not likely to change that calculus. Administrative exhaustion would thus be futile. 24 The Court will consider the merits of Ms. Soto’s claim for a bond hearing. 25 B. 26 27 28 Ms. Soto is Not Entitled to a Bond Hearing at this Time Ms. Soto argues that her continued detention without a bond hearing violates her procedural due process rights. Pet ¶ 21. Previously, the Ninth Circuit held in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) 4 that 8 U.S.C. § 1226(a) had to be construed to require automatically provided bond hearings after 2 six months in detention, in order to avoid potential due process problems under the doctrine of 3 constitutional avoidance. In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court 4 reversed the Ninth Circuit’s holding as a mis-application of the canon of constitutional avoidance. 5 The Supreme Court explained that “[n]othing in § 1226(a)’s text . . . even remotely supports the 6 imposition of” periodic bond hearings where the government bears the burden. Id. at 847. The 7 Court did not decide in the absence of a statutory mandate whether the Constitution requires such 8 periodic hearings. That question is currently pending before the Ninth Circuit.3 Because 9 Petitioner has not identified any binding Ninth Circuit or Supreme Court case-law that establishes 10 Petitioner’s categorical right to a periodic bond hearing, the Court must conduct an individualized 11 United States District Court Northern District of California 1 due process analysis pursuant to the conventional Mathews v. Eldridge 424 U.S. 319 (1976) 12 factors. “Due process is flexible and calls for such procedural protections as the particular situation 13 14 demands.” Id. at 334. The three-part test articulated in Mathews requires considering (1) the 15 private interest affected, (2) the government’s interest, and (3) the value added by alternative 16 procedural safeguards to what has already been provided in the particular situation before the 17 court. See id. at 334-35. Petitioner’s Private Interest 18 1. 19 Ms. Soto’s freedom from detention is at stake. Rodriguez, 804 F.3d at 1066. This is an 20 important interest which “lies at the heart of the liberty that [the Due Process] Clause protects” but 21 it is not at its apex in these circumstances, as Ms. Soto has been detained for only slightly over six 22 months total, and for only slightly over three months since her last bond hearing. Id. There is a 23 strong interest against indefinite detention but, that is not currently a concern as Ms. Soto is still 24 working through the appropriate process. 25 3 26 27 28 See Rodriguez v. Jennings, 887 F.3d 954 (9th Cir. 2018). However, briefing in Jennings will not conclude until the end of July, with oral argument to be scheduled after briefing. Id. at 956. The Court will not stay this case pending that decision because a lengthy stay is not warranted when a petitioner may be harmed by prolonged and unlawful detention. See Yong v. I.N.S., 208 F.3d 116, 1120 (9th Cir. 2000) (holding that the District Court abused its authority in staying a § 2241 immigration detention habeas petition pending a relevant Ninth Circuit decision). 5 1 In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court held that detention of 2 an alien beyond six months after removal has been ordered and which appears indefinite because 3 removal is not reasonably foreseeable “would raise serious constitutional concerns.” Ms. Soto’s 4 situation is not analogous to that in Zadvydas. Although it is true that her removal proceedings 5 have been terminated and their future is uncertain, her detention does not appear to be potentially 6 indefinite at this time. Ms. Soto is being held under the authority of 8 U.S.C. § 1226(a) “pending 7 a decision” on her removal, and there continues to be movement in her case. ICE has timely 8 appealed the termination of her removal proceedings to the BIA and a decision on whether 9 proceedings will be re-instituted is reasonably foreseeable. Docket No. 17, Hr’g, June 28, 2018. Though Ms. Soto argued in supplemental briefing that the BIA’s stated goal for completing an 11 United States District Court Northern District of California 10 appeal is 150 days, the same report indicates that the average duration is actually “105 days (3½ 12 months)” for detained aliens, as measured “from the day the notice of appeal was filed to the day 13 the BIA’s decision was issued.” Docket No. 18, Exh. 1 at 43. Thus, there is no specter of 14 indefinite detention.4 15 2. Government Interest 16 The government’s interest in detaining Ms. Soto is twofold. First, the government has an 17 interest in assuring that Ms. Soto will not flee and will appear if ultimately ordered removed. See 18 8 C.F.R. § 236.1(c)(8) (allowing release from detention if the non-citizen “is likely to appear for 19 any further proceeding.”); see also Zadvydas, 533 U.S. 690 (noting preventing flight is a 20 justification for detention but is weakened where removal is unlikely). Second, the government 21 has an interest in protecting the public from Ms. Soto if she poses a danger to the community. See 22 8 C.F.R. § 236.1(c)(8) (allowing release from detention if the non-citizen “would not pose a 23 danger to property or persons.”); see also Zadvydas, 533 U.S. 691 (“[the Court] ha[s] upheld 24 preventive detention based on dangerousness only when limited to specially dangerous individuals 25 and subject to strong procedural protections.”). The government has argued that Ms. Soto’s outstanding warrant in Mexico for aggravated 26 27 4 28 This opinion does not preclude Ms. Soto from filing another petition if her detention in fact becomes prolonged or indefinite at a later time. 6 1 kidnapping which resulted in the death of a minor supports her detention without bond. Exhs. C- 2 D. These are legitimate government interests, see Zadvydas, 533 U.S. 690 (summarizing that 3 some justifications can outweigh an individual’s interest in avoiding physical restraint in narrow, 4 nonpunitive circumstances), although the Court expresses no view on the bona fides of the claim 5 of danger, as that issue is not before the Court. 3. 7 It is useful to recount the procedural protections of which Ms. Soto has already availed 8 herself or which were available to her. Three months ago, in March 2018, she received a bond 9 redetermination hearing before an IJ which included numerous procedural protections. Ms. Soto 10 had the right to request the IJ subpoena witnesses and evidence and to submit her own documents 11 United States District Court Northern District of California 6 into evidence. 8 C.F.R. §§ 1003.35, 31. It is not clear whether Ms. Soto attempted to take 12 advantage of these protections in order to, e.g., undermine the credibility of the Mexican warrant 13 or introduce other evidence why she posed no flight risk or danger to the community. She 14 presented no evidence about the record of the bond hearing to this Court. Ms. Soto was also 15 represented by an attorney at that proceeding. See 8 C.F.R. §§ 1003.16-17; Exhs. B, H, J. 16 Additionally, Ms. Soto had the right to appeal the IJ’s adverse bond determination to the BIA, but 17 did not do so. 8 C.F.R. § 1003.38; Morris Dec. ¶ 13; Exh. L. Although Ms. Soto’s bond 18 redetermination was not held until 3 months after her initial detention due to four continuances, 19 she sought two of those continuances and a third was for the purpose of seeking an interpreter for 20 her. Exhs. K-L; Morris Dec. ¶ 12. 21 22 23 The Value of Additional Safeguards Ms. Soto does not argue that the bond hearing she received was improperly conducted. Indeed, she did not even disclose that she had already received that hearing in her habeas petition. The only substantive difference between the hearing Ms. Soto received three months ago 24 and the hearing she seeks now is a shift in the burden of proof from her to the Government. 25 Although in the abstract this could benefit Ms. Soto, she has not submitted any information about 26 the record of her first bond redetermination to suggest that, on the facts of her case, the shift would 27 make any difference to the outcome. Cf. Mathews, 424 U.S. 319, 343-45 (1976) (holding that 28 evidentiary hearings are not required prior to the termination of disability benefits as they would 7 1 add little value); C. R. v. Seattle Pub. Sch., 693 F. App'x 505, 507 (9th Cir. 2017) (finding due 2 process did not require additional procedure of cross examination where this would add little value 3 for petitioner in administrative school hearing); Sachs v. City of Detroit, 257 F. Supp. 2d 903 4 (E.D. Mich. 2003) (denying plaintiff was entitled to additional procedures prior to city’s 5 demolition of structures where these procedures would serve little value). It is unclear, for 6 example, if the government relied only on an international warrant (hearsay) to demonstrate 7 danger to the community, and whether Ms. Soto offered any testimony under oath to challenge the 8 warrant which was unrebutted. Thus, while as a theoretical matter a shifted burden could assist an 9 immigration detainee, Ms. Soto has failed to make any showing that she would benefit as a practical matter in the circumstances of her case. Cf. United States v. Peralta-Sanchez, 847 F.3d 11 United States District Court Northern District of California 10 1124, 1136 (9th Cir.) (holding that providing detainees a right to counsel in expedited removal 12 hearings was not required as it would not add value especially weighed against the cost and the 13 government’s interest) opinion withdrawn on grant of reh'g, 868 F.3d 852 (9th Cir. 2017), and on 14 reh'g, 705 F. App'x 542 (9th Cir. 2017), cert. denied sub nom. Sanchez v. United States, 138 S. Ct. 15 702, 199 L. Ed. 2d 575 (2018). 16 Furthermore, the due process concerns animating the Ninth Circuit’s interpretation of 17 Section 1226(a) which required the Government to offer automatic, periodic hearings where it 18 bore the burden are not present here. The Ninth Circuit noted detainees typically “proceed pro se, 19 have limited access to legal resources” and “are not aware of their right to a bond hearing and are 20 poorly equipped to request one.” Rodriguez v. Robbins, 804 F.3d 1060, 1085 (9th Cir. 2015). In 21 contrast, Ms. Soto is represented by counsel both in her immigration proceedings and in this 22 petition, and is aware of her ability to seek a bond redetermination per § 1003.19(e) should 23 changed circumstances warrant one, and to bring a habeas petition before this Court. Ms. Soto 24 was well-equipped to take advantage of the due process she was afforded. 25 In sum, Ms. Soto has not demonstrated how a new bond hearing with a shifted burden of 26 proof would add substantial value to her right to a fair and accurate adjudication. She appears to 27 have made little attempt to utilize the due process protections already available to her: it is not 28 clear what arguments or evidence if any she presented at her initial bond redetermination hearing, 8 1 and she did not attempt to appeal the denial of bond. Weighing Ms. Soto’s interest, the 2 government’s interest, and the value a new bond hearing would add to the procedural protections 3 already provided, the Court concludes that due process does not entitle Ms. Soto to a new bond 4 hearing at this time. 5 C. 6 Ms. Soto is Not Entitled to Immediate Release In the alternative, Ms. Soto argues that her continued detention itself violates her 7 procedural due process rights, and as relief seeks immediate release from detention. As explained 8 in the previous section, Ms. Soto’s due process interests are not strong enough to require a second 9 bond hearing at this time. It follows that her interests are not strong enough to require her 10 immediate release, either. This request is DENIED. United States District Court Northern District of California 11 12 13 14 15 III. CONCLUSION The Court DENIES Ms. Soto’s request for a new bond hearing and DENIES her request for immediate release. This order disposes of Docket No. 1. The Clerk of the Court is directed to enter judgment for Defendants and to close the case. 16 17 IT IS SO ORDERED. 18 19 Dated: July 30, 2018 20 21 22 ______________________________________ EDWARD M. CHEN United States District Judge 23 24 25 26 27 28 9