Birru v. Barr et al, No. 5:2020cv01285 - Document 20 (N.D. Cal. 2020)

Court Description: Amended Order Granting in Part and Denying in Part 4 Petition for Habeas Corpus; Denying as Moot 5 Motion for Temporary Restraining Order; Superseding 18 Order. Signed by Judge Lucy H. Koh on 4/17/20. (lhklc3, COURT STAFF) (Filed on 4/17/2020)

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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 AYLALIYA ASSEFA BIRRU, Petitioner, 13 v. 14 15 WILLIAM P. BARR, et al., 16 Respondents. Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER1 Re: Dkt. Nos. 4, 5 17 On March 31, 2020, Petitioner Aylaliya Assefa Birru (“Petitioner”) filed a first amended 18 19 petition for writ of habeas corpus under 28 U.S.C. § 2241. See ECF No. 4 (“Pet.”). Petitioner is a 20 native of Ethiopia who is currently detained in Immigration and Customs Enforcement (“ICE”) 21 custody. See Pet. ¶¶ 1, 20; ECF No. 4-3, Ex. A (“Birru Decl.”) ¶ 2. Petitioner argues that her 22 prolonged detention without a bond hearing is unlawful and violates both procedural and 23 substantive due process. Petitioner requests that the Court either (1) order her immediate release; 24 or (2) order Respondents Matthew T. Albence, Wendell Anderson, William P. Barr, Erik Bonnar, 25 and Chad F. Wolf (“Respondents”) to provide Petitioner a “bond hearing at which the Government 26 27 1 28 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER This Order supersedes ECF No. 18, which has been vacated. 1 1 bears the burden of proof by clear and convincing evidence to demonstrate that ongoing detention 2 is justified based on a risk of flight or danger, in light of available alternatives to detention.” Pet. 3 ¶¶ 4, 5, 65. On March 24, 2020, Petitioner also filed an ex parte motion for a temporary restraining United States District Court Northern District of California 4 5 order (“TRO”) seeking immediate release. See ECF No. 5 (“TRO Mot.”). On March 25, 2020, 6 the Court required Respondents to file a response to the motion for a TRO. ECF No. 11. On April 7 1, 2020, Respondents filed an opposition to Petitioner’s request for a TRO.2 ECF No. 14 8 (“Opp’n”). On April 8, 2020, Petitioner filed a Reply. ECF No. 16 (“Reply”). 9 Having considered the briefing and exhibits submitted by the parties, the Court GRANTS 10 in part and DENIES in part Petitioner’s habeas petition and DENIES as moot Petitioner’s motion 11 for a TRO. 12 I. BACKGROUND Petitioner is a 36-year-old native of Ethiopia. Pet. ¶ 20. Petitioner first entered the United 13 14 States on a temporary visa in approximately 1999, in an effort to escape the Eritrean-Ethiopian 15 War. Birru Decl. ¶ 29. In 2009, Petitioner returned to Ethiopia in order to care for her ill mother. 16 Id. ¶ 37. In 2011, Petitioner met Silas D’aloisio, a United States soldier who was stationed in 17 Ethiopia. Id. ¶ 5. Petitioner married D’aloisio in 2012, obtained lawful permanent resident status, 18 and returned to the United States in 2014. Id. ¶ 6. From April 2014 until December 2014, 19 Petitioner alleges that Petitioner suffered a pattern of grave abuse at the hands of D’aloisio, 20 including physical violence and rape. Id. ¶¶ 67–80. On December 14, 2014, Petitioner was arrested for the assault of D’aloisio with a firearm. 21 22 Pet. ¶ 30. Petitioner pleaded no contest and was convicted under California Penal Code § 23 245(a)(2) for assault with a firearm. On September 25, 2015, Petitioner received a sentence of six 24 years, which included a three-year enhancement under California Penal Code § 12022.7(e), for 25 26 27 28 2 Respondents Matthew T. Albence, William P. Barr, Erik Bonnar, and Chad F. Wolf filed the relevant opposition. Opp’n. Respondent Wendell Anderson then joined the opposition. ECF No. 15. 2 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 United States District Court Northern District of California 2 infliction of great bodily injury under circumstances involving domestic violence. Id. Petitioner was released from prison on parole on November 27, 2018, and Petitioner was 3 promptly taken into ICE custody on that same day. Id. ¶ 32. On December 4, 2018, the 4 Department of Homeland Security (“DHS”) initiated removal proceedings against Petitioner via 5 notice to appear. ECF No. 4-3, Ex. N (“IJ Decision”). The notice to appear charged Petitioner 6 with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which deems “[a]ny alien who is convicted 7 of an aggravated felony at any time after admission” to be removable. Id.; 8 U.S.C. § 8 1227(a)(2)(A)(iii). In response, Petitioner argued, inter alia, that Petitioner was entitled to Special 9 Rule Cancellation of Removal for Battered Spouses, 8 U.S.C. § 1229b(b)(2), and that Petitioner 10 was eligible for protection under the Convention Against Torture. IJ Decision at 7. On April 19, 11 2019, the Immigration Judge rejected Petitioner’s arguments and ordered that Petitioner “be 12 removed from the United States to Ethiopia on the charge contained in the Notice to Appear.” Id. 13 On October 3, 2019, the Board of Immigration Appeals (“BIA”) upheld the Immigration Judge’s 14 decision and dismissed Petitioner’s appeal. ECF No. 4-3, Ex. O. 15 On October 31, 2019, Petitioner then filed a petition for review in the Ninth Circuit. Birru 16 v. Barr, No. 19-72758, Dkt. 1 (9th Cir. 2019). On November 8, 2019, Petitioner also filed a 17 motion for stay of removal. Id. at Dkt. 6. On February 28, 2020, the Ninth Circuit granted 18 Petitioner’s motion for stay of removal pending the Ninth Circuit’s decision on the petition for 19 review. Id. at Dkt. 10. That appeal remains pending. 20 On November 25, 2019, while Petitioner’s appeal was pending, Petitioner filed a motion 21 for a bond hearing under 8 U.S.C. § 1226(a) with the Immigration Judge. ECF No. 4-3, Ex. J. On 22 December 10, 2019, the Immigration Judge denied Petitioner’s motion because “[t]he court 23 agree[d] with the reasons stated in the opposition to the motion.” Id., Ex. K. On January 7, 2020, 24 Petitioner then filed an appeal of the Immigration Judge’s denial of the bond hearing with the 25 Board of Immigration Appeals. Id. That appeal also remains pending. 26 27 28 On February 20, 2020, Petitioner then filed a petition for writ of habeas corpus in federal 3 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER United States District Court Northern District of California 1 court. ECF No. 1. Specifically, Petitioner argued that both 8 U.S.C. § 1226(a) and the Due 2 Process Clause of the Fifth Amendment entitled her to a bond hearing. Id. ¶¶ 44, 45. Petitioner 3 requested either immediate release or a bond hearing. Id. ¶ 51. On March 21, 2020, Petitioner 4 filed an amended petition for writ of habeas corpus. See Pet. Petitioner’s amended petition for 5 writ of habeas corpus asserted the same two grounds for relief, and added a new substantive due 6 process claim based on Petitioner’s conditions of confinement. On March 24, 2020, Petitioner 7 also filed an ex parte motion for a temporary restraining order (“TRO”) seeking immediate 8 release. See ECF No. 5 (“TRO Mot.”). On March 25, 2020, the Court required Respondents to 9 file a response to the motion for a TRO. ECF No. 11. On April 1, 2020, Respondents filed an 10 opposition to Petitioner’s request for a TRO. ECF No. 14 (“Opp’n”). On April 8, 2020, Petitioner 11 filed a Reply. ECF No. 16 (“Reply”). Petitioner currently remains in ICE detention and has not received a bond hearing. 12 13 II. DISCUSSION As discussed, in the instant habeas petition, Petitioner asserts three different claims for 14 15 relief. First, Petitioner contends that Petitioner is entitled to a bond hearing pursuant to 8 U.S.C. § 16 1226(a). Pet. ¶ 48. Second, Petitioner contends that Petitioner is entitled to a bond hearing 17 because Petitioner has been subject to unconstitutionally prolonged detention under the Fifth 18 Amendment. Id. ¶ 48. Third, and finally, Petitioner, who is 36 years old, states that she suffers 19 from post-traumatic stress disorder (“PTSD”), that people with PTSD “often have weakened 20 immune function,” that her PTSD thus renders her vulnerable to COVID-19, and that thus 21 Petitioner’s conditions of confinement violate the Fifth Amendment. Id. ¶ 61. Respondents argue that Petitioner’s claims for relief fail.3 With respect to Petitioner’s first 22 23 two claims, Respondent contends that Petitioner has failed to exhaust administrative remedies. 24 25 26 27 28 While Respondents style their opposition as an opposition to Petitioner’s motion for a TRO, Respondents devote almost all of their brief to arguing that Petitioner is in fact “lawfully detained.” Opp’n at 7–23. Accordingly, the Court construes Respondent’s filing as an opposition to the petition itself. 4 3 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 Opp’n at 13–15. Respondent also argues that even if Petitioner did exhaust administrative 2 remedies, Petitioner would still not be entitled to a bond hearing under either 8 U.S.C. § 1226(a) 3 or the Fifth Amendment in light of the operative case law. Id. at 15–23. Finally, Respondent 4 argues that Petitioner lacks standing to bring the Fifth Amendment conditions of confinement 5 claim, and that Petitioner’s conditions of confinement do not violate the Fifth Amendment in any 6 event. Id. at 7–15. United States District Court Northern District of California 7 The Court concludes that Petitioner is entitled to a bond hearing under 8 U.S.C. § 1226(a). 8 Accordingly, the Court need not reach Petitioner’s second and third claims for relief. The Court 9 begins by addressing Respondents’ argument that Petitioner has failed to exhaust administrative 10 remedies with respect to this claim. The Court then determines whether 8 U.S.C. § 1226(a) 11 necessitates that Petitioner receive a bond hearing. 12 13 A. Administrative Exhaustion Respondents claim that Petitioner’s first and second claims for relief necessarily fail 14 because “Petitioner did not exhaust her administrative remedies with respect to these claims.” 15 Opp’n at 13. Specifically, Respondents point to the fact that Petitioner has appealed the 16 Immigration Judge’s denial of a bond hearing to the BIA, and this appeal is currently pending. Id. 17 at 14. Petitioner argues that the exhaustion requirement is prudential in nature and that it should 18 be waived in the instant case because Petitioner would suffer irreparable harm if Petitioner were 19 forced to exhaust administrative remedies. Pet. ¶¶ 10–13. The Court agrees with Petitioner. 20 Petitions for habeas corpus may be subject to a prudential administrative exhaustion 21 requirement, which is non-jurisdictional in nature. Hernandez v. Sessions, 872 F.3d 976, 988 (9th 22 Cir. 2017). Prudential exhaustion may be required when: 23 24 25 26 27 28 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. 5 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 Id. (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). The Court “may require” 2 prudential exhaustion if the three Puga factors weigh in favor of the application of such a 3 requirement. See Hernandez, 872 F.3d at 988 (outlining requirements). However, a court may 4 also waive the requirement if “administrative remedies are inadequate or not efficacious, pursuit of 5 administrative remedies would be a futile gesture, irreparable injury will result, or the 6 administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 7 2004). 8 United States District Court Northern District of California 9 Here, prudential exhaustion is not required because the three Puga factors do not weigh in favor of a prudential exhaustion requirement. With respect to the first factor, Petitioner’s 10 arguments do not require any administrative record from the BIA. Instead, Petitioner’s claims 11 raise purely legal questions: namely, whether Petitioner is entitled to a bond hearing under either 8 12 U.S.C. § 1226(a) or the Fifth Amendment, and whether Petitioner’s conditions of confinement are 13 unconstitutional. See Hernandez, 872 F.3d at 989 (“[A]n administrative appellate record is not 14 necessary to resolve the purely legal questions presented by Plaintiffs’ challenge to the 15 government's policy of refusing to require ICE and IJs to consider financial circumstances and 16 alternative conditions of release in bond determinations.”); see also Jimenez v. Wolf, No. 19-CV- 17 07996-NC, 2020 WL 1082648, at *2 (N.D. Cal. Mar. 6, 2020) (determining that prudential 18 administrative exhaustion does not bar habeas petition in part because “[a]ll that remains is [a] 19 legal question”). 20 With respect to the second factor, “waiver of the prudential exhaustion requirement will 21 not ‘encourage the deliberate bypass of the administrative scheme’ in future cases, because, once 22 the questions presented here are decided, they ‘should cease to arise.’” Hernandez, 872 F.3d at 23 989. Indeed, the Court joins a growing consensus of federal courts on the question presented here, 24 which will likely obviate the need for similar petitions in the future. See Avilez v. Barr, No. 19- 25 CV-08296-CRB, 2020 WL 1704456, at *3 (N.D. Cal. Apr. 8, 2020) (examining interplay of 8 26 U.S.C. § 1226(a) and 8 U.S.C. § 1226(c)). 27 28 6 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 2 “likely to allow” the agency’s correction of its mistake in the instant case. On the contrary, 3 Respondents appear to have recently denied a bond hearing in the same circumstances presented 4 here. In that case, another court in the Northern District of California similarly intervened to grant 5 a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Avilez, 2020 WL 1704456, at *3 6 (granting petition for habeas corpus because “[petitioner’s] detention is authorized under § 7 1226(a), which requires a bond hearing”). 8 9 United States District Court Northern District of California Finally, with respect to the third factor, there is no evidence that administrative review is Further, even if the Puga factors did weigh in favor of prudential exhaustion here, the Court would still waive the requirement. This is so because in light of Petitioner’s lengthy 10 detention, the Court concludes that the application of the prudential exhaustion requirement would 11 result in irreparable injury to the Petitioner in the instant case. See Laing, 370 F.3d at 1000 12 (outlining exceptions to prudential exhaustion). 13 Petitioner has been detained in ICE custody since November 2018. Pet. ¶ 32. Petitioner’s 14 petition for review has been pending before the Ninth Circuit since October 2019. Id. ¶ 49. Yet 15 Petitioner has not received a bond hearing over this entire span. Although Petitioner has an appeal 16 pending before the BIA as to the Immigration Judge’s denial of a bond hearing, the BIA has not 17 yet issued a briefing schedule on that appeal. Id. ¶ 11. There is therefore no indication of when 18 the BIA will ultimately make a decision on that issue. For their part, Respondents merely indicate 19 that “while there is no deadline by which the BIA must decide the appeal, appeals from detained 20 individuals are given priority.” Opp’n at 14. In light of the length of Petitioner’s detention and 21 the uncertainty with respect to any future BIA resolution of the bond hearing issue, waiver of 22 administrative exhaustion would be appropriate even if the three Puga factors did weigh in favor 23 of prudential exhaustion. See, e.g., Jimenez, 2020 WL 1082648, at *3 (waiving administrative 24 exhaustion because petitioner “has been detained for almost one and a half years” and petitioner 25 therefore “continues to suffer harm from his continued detention that cannot be repaired”); Cortez 26 v. Sessions, 318 F.Supp.3d 1134, 1139 (N.D. Cal. 2018) (“The court finds that [petitioner] suffers 27 28 7 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 potentially irreparable harm every day that he remains in custody without a hearing, which could 2 ultimately result in his release from detention.” (internal quotation marks omitted)). 3 In light of the foregoing, the Court concludes that Petitioner’s first and second claims for 4 relief are not barred by the prudential doctrine of administrative exhaustion. The Court therefore 5 proceeds to consider Petitioner’s first claim for relief. 6 7 In order to assess Petitioner’s first claim for relief, the Court first provides a brief 8 background of the applicable statutory provisions that govern detention in the instant case. The 9 Court then assesses Petitioner’s argument that Petitioner is entitled to a bond hearing under 8 10 United States District Court Northern District of California B. Petitioner Is Entitled to a Bond Hearing Under 8 U.S.C. § 1226(a) U.S.C. § 1226(a). 11 1. Statutory Background 12 Several different provisions of the Immigration and Nationality Act confer the government 13 the authority to detain noncitizens during immigration proceedings. See 8 U.S.C. §§ 1225(b), 14 1226(a), 1226(c), 1231(a). The applicable “statutes apply at different stages of an alien’s 15 detention.” Diouf v. Mukasey, 542 F.3d 1222, 1228 (9th Cir. 2008). Moreover, “[w]here an alien 16 falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as 17 well as the kind of review process available to him if he wishes to contest the necessity of his 18 detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 19 In the instant case, there is no dispute that Petitioner was initially detained pursuant to 8 20 U.S.C. § 1226(c). See Pet. ¶ 19 (noting that Petitioner’s “initial detention was authorized pursuant 21 of 8 U.S.C. §1226(c)”); Opp’n at 15 (arguing that “Petitioner’s felony conviction subjects her to 22 mandatory detention under Section 1226(c)”). Pursuant to 8 U.S.C. § 1226(c), “[t]he Attorney 23 General shall take into custody any alien who . . . is deportable by reason of having committed any 24 offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.” 8 U.S.C. § 25 1226(c)(1) (emphasis added). As noted, Petitioner was convicted of assault with a firearm under 26 California Penal Code § 245(a)(2), which constitutes an “aggravated felony” under 8 U.S.C. § 27 28 8 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 1227(a)(2)(A)(iii). See, e.g., IJ Decision at 2 (“The respondent did not meaningfully dispute that 2 her conviction for assault with a firearm is an aggravated felony.”). United States District Court Northern District of California 3 Under 8 U.S.C. § 1226(c), the government may release a noncitizen detained under the 4 provision only for witness protection purposes. See 8 U.S.C. § 1226(c)(2) (explaining that release 5 from custody is authorized only when “release of the alien from custody is necessary to provide 6 protection to a witness, a potential witness, a person cooperating with an investigation into major 7 criminal activity, or an immediate family member or close associate of a witness, potential 8 witness, or person cooperating with such an investigation”). In light of the mandatory language of 9 the detention provision and the limitation on release, noncitizens who are detained pursuant to 8 10 U.S.C. § 1226(c) generally do not have “a chance to apply for release on bond or parole.” Nielsen 11 v. Preap, 139 S. Ct. 954, 960 (2019); see also Avilez, 2020 WL 1704456, at *2 (“But under § 12 1226(c) the Attorney General must detain a noncitizen who has committed certain crimes until the 13 conclusion of removal proceedings.” (internal quotation marks omitted)). 14 The second detention provision relevant to the instant case is 8 U.S.C. § 1226(a). Unlike 8 15 U.S.C. § 1226(c), the government has discretion to determine whether to detain a noncitizen under 16 8 U.S.C. § 1226(a). Indeed, 8 U.S.C. § 1226(a) dictates that “an alien may be arrested and 17 detained pending a decision on whether the alien is to be removed from the United States.” 8 18 U.S.C. § 1226(a) (emphasis added). However, in the event that the government does elect to 19 detain a noncitizen pursuant to 8 U.S.C. § 1226(a), 8 U.S.C. § 1226(a) requires a bond hearing at 20 the outset of detention. See Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 951 (9th 21 Cir. 2008) (“[W]e hold that § 1226(a) must be construed as requiring the Attorney General to 22 provide the alien with such a [bond] hearing.”); accord Jennings v. Rodriguez, 138 S. Ct. 830, 847 23 (2018) (“Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at 24 the outset of detention.”). Hence, to the extent that Petitioner is detained pursuant to 8 U.S.C. § 25 1226(a), the parties both appear to agree that Petitioner is entitled to a bond hearing. Pet. ¶ 46 26 (noting that “8 U.S.C § 1226(a), [] allows for bond hearings”); Opp’n at 15 (arguing that Petitioner 27 28 9 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 is not entitled to “a Section 1226(a) bond hearing” because “Petitioner remains detained under 2 Section 1226(c)”). United States District Court Northern District of California 3 The question that the Court must resolve for the purposes of the instant petition is whether 4 Petitioner is detained pursuant to 8 U.S.C. § 1226(a) or 8 U.S.C. § 1226(c). If Petitioner is 5 detained pursuant to 8 U.S.C. § 1226(a), then as discussed infra, Petitioner is statutorily entitled to 6 a bond hearing. If Petitioner is detained pursuant to 8 U.S.C. § 1226(c), then the Court must reach 7 Petitioner’s constitutional arguments to determine whether a bond hearing is nonetheless 8 necessary. The Court concludes that Petitioner is detained pursuant to 8 U.S.C. § 1226(a) and that 9 a bond hearing is therefore required. 10 2. Petitioner Is Detained Under 8 U.S.C. § 1226(a) 11 The parties dispute the statutory authority for Petitioner’s current detention. According to 12 Petitioner, because the BIA dismissed Petitioner’s appeal of the removal order, and because 13 Petitioner’s petition for review is pending before the Ninth Circuit, detention authority has shifted 14 to 8 U.S.C. § 1226(a). Pet. ¶ 48. Respondents argue that “Petitioner remains detained under 15 Section 1226(c) and is not entitled to a Section 1226(a) bond hearing.” Opp’n at 15. Petitioner is 16 correct. Petitioner is currently detained pursuant to 8 U.S.C. § 1226(a) and is thus entitled to a 17 bond hearing. 18 In Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008), the Ninth 19 Circuit examined a squarely analogous situation. Indeed, in Casas-Castrillon, the Ninth Circuit 20 explained that 8 U.S.C. § 1226(c) only authorizes detention of a noncitizen until the BIA issues a 21 final removal order. 535 F.3d at 948 (explaining that “[o]nce [the petitioner’s] proceedings before 22 the BIA were complete, the Attorney General’s authority to detain him under § 1226(c) ended”). 23 Once the BIA issues a final removal order and the petitioner seeks judicial review of the removal, 24 then the detention authority “shift[s] instead to § 1226(a).” Id. Moreover, the Ninth Circuit held 25 that the petitioner is statutorily entitled to a bond hearing once the detention authority shifts. Id. at 26 951 (“Because the prolonged detention of an alien without an individualized determination of his 27 28 10 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 dangerousness or flight risk would be ‘constitutionally doubtful,’ . . . § 1226(a) must be construed 2 as requiring the Attorney General to provide the alien with such a [bond] hearing.”). 3 4 1226(c) to 8 U.S.C. § 1226(a) because Petitioner has been subject to a final removal order and 5 because Petitioner currently seeks judicial review of that removal. Id. (explaining that when a 6 noncitizen is first detained under 8 U.S.C. § 1226(c), after the “administrative proceedings are 7 complete” the noncitizen is “detained under the Attorney General’s broader grant of discretionary 8 authority under § 1226(a)”). Casas-Castrillon also dictates that under 8 U.S.C. § 1226(a), 9 Petitioner is automatically entitled to a bond hearing. Id. (“[W]e hold that § 1226(a) must be 10 11 United States District Court Northern District of California Casas-Castrillon dictates that the authority to detain Petitioner has shifted from 8 U.S.C. § construed as requiring the Attorney General to provide the alien with such a hearing.”). Respondents do not contest any of the foregoing. Instead, Respondents claim that Casas- 12 Castrillon is no longer good law in light of the United States Supreme Court’s decision in 13 Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The Court disagrees. 14 As an initial matter, and as Respondents recognize, Casas-Castrillon is inapplicable only 15 to the extent that it is “clearly irreconcilable” with the United States Supreme Court’s intervening 16 decision in Jennings. See, e.g., Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) 17 (explaining that Ninth Circuit authority has only been “effectively overruled” when the authority 18 is “clearly irreconcilable” with intervening higher authority). The Ninth Circuit has repeatedly 19 stressed that “[t]he ‘clearly irreconcilable’ requirement is ‘a high standard.’” United States v. 20 Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs. 21 LLC, 728 F.3d 975, 979 (9th Cir. 2013)). Thus, if the Court can apply Ninth Circuit precedent 22 “consistently with that of the higher authority, we must do so.” Fed. Trade Comm’n v. Consumer 23 Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019). 24 In Jennings, the United States Supreme Court overruled various aspects of the Ninth 25 Circuit’s interpretation of the Immigration and Nationality Act’s detention provisions. As relevant 26 for the purposes of the instant case, the United States Supreme Court examined the Ninth Circuit’s 27 28 11 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 interpretation of 8 U.S.C. § 1226(c) and 8 U.S.C. § 1226(a). Jennings, 138 S. Ct. at 846–48. As 2 to 8 U.S.C. § 1226(c), the United States Supreme Court held that so long as 8 U.S.C. § 1226(c) 3 applies, a noncitizen may be released “‘only if the Attorney General decides’ both that doing so is 4 necessary for witness-protection purposes and that the alien will not pose a danger or flight risk.” 5 Id. at 846 (quoting 8 U.S.C. § 1226(c)(2)). The United States Supreme Court also held that 8 6 U.S.C. § 1226(c) does not “include an implicit 6–month time limit on the length of mandatory 7 detention.” Id. Similarly, as to 8 U.S.C. § 1226(a), the United States Supreme Court similarly 8 rejected the proposition that the statute itself requires “periodic bond hearings every six months in 9 which the Attorney General must prove by clear and convincing evidence that the alien’s 10 United States District Court Northern District of California 11 continued detention is necessary.” Id. at 847. The Ninth Circuit has already explained that Jennings left Casas-Castrillon’s conclusion 12 that bond hearings are statutorily mandated by 8 U.S.C. § 1226(a) untouched. See Aleman 13 Gonzalez v. Barr, -- F.3d --, 2020 WL 1684034, at *20 (9th Cir. Apr. 7, 2020) (explaining that 14 “[b]y its terms, Jennings invalidates that aspect of our case law construing § 1226(a) [i.e., the six- 15 month bond hearing requirement subject to clear and convincing evidence], but does not go 16 further.”); see also id. at *17 (“The Court’s rejection of our court’s imposition of a six-month 17 bond hearing requirement for aliens detained pursuant to § 1226(a) beyond the regulations’ 18 provision of a single bond hearing at the outset of detention is not the same as rejecting a 19 construction of § 1226(a) to authorize or require bond hearings at all.”). 20 Hence, the sole question before the Court is the impact of Jennings on Casas-Castrillon’s 21 holding that detention authority shifts from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1226(a) when a 22 petitioner is subject to a final removal order and seeks judicial review of that removal order. 23 Respondents point to language in Jennings in which the United States Supreme Court held that 24 “together with § 1226(a), § 1226(c) makes clear that detention of aliens within its scope must 25 continue ‘pending a decision on whether the alien is to be removed from the United States.’” 138 26 S. Ct. at 846 (citing 8 U.S.C. § 1226(a)). According to Respondents, “this categorical language” is 27 28 12 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 United States District Court Northern District of California 2 impossible to reconcile with Casas-Castrillon. Opp’n at 16–17. The Court disagrees. First of all, the United States Supreme Court repeatedly emphasized 3 that 28 U.S.C. § 1226(c) mandates detention only as to “aliens within its scope.” 138 S. Ct. at 846 4 (emphasis added); see also id. at 847 (“We hold that § 1226(c) mandates detention of any alien 5 falling within its scope and that detention may end prior to the conclusion of removal proceedings 6 ‘only if’ the alien is released for witness-protection purposes.” (emphasis added)). The Casas- 7 Castrillon court held that petitioners who are subject to a final removal order and then seek 8 judicial review of that removal order are no longer within the scope of 28 U.S.C. § 1226(c). See 9 Casas-Castrillon, 535 F.3d at 951 (“[Section] 1226(c) does not authorize prolonged mandatory 10 detention after an alien’s administrative proceedings are complete. Rather, these aliens are 11 detained under the Attorney General’s broader grant of discretionary authority under § 1226(a).”). 12 The United States Supreme Court said nothing about that conclusion. Thus, Casas-Castrillon and 13 Jennings can be readily harmonized insofar as: (1) Casas-Castrillon narrowed the scope of 14 noncitizens who are subject to detention under 8 U.S.C. § 1226(c); and (2) Jennings then 15 explained the statutory consequences for the noncitizens who continue to fall within the scope of 8 16 U.S.C. § 1226(c). 17 Further, the United States Supreme Court’s discussion of the interplay between 8 U.S.C. § 18 1226(c) and 8 U.S.C. § 1226(a) is ambiguous. Indeed, in Jennings, the United States Supreme 19 Court held that “together with § 1226(a), § 1226(c) makes clear that detention of aliens within its 20 scope must continue ‘pending a decision on whether the alien is to be removed from the United 21 States.’” 138 S. Ct. at 846 (citing 8 U.S.C. § 1226(a)). The United States Supreme Court’s use of 22 the phrase “together with § 1226(a), § 1226(c),” could reasonably “mean that the two statutory 23 sections work together to ensure that a noncitizen remains in custody pending judicial review of a 24 final order of removal, because § 1226(c) applies before the order of removal becomes final, and § 25 1226(a) applies after the order of removal becomes final.” Avilez, 2020 WL 1704456, at *3. In 26 Avilez v. Barr, 2020 WL 1704456 (N.D. Cal. Apr. 8, 2020), another district court in the Northern 27 28 13 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER United States District Court Northern District of California 1 District of California recently came to this very conclusion when it considered and rejected an 2 argument identical to the one Respondents make here. Id. 3 Accordingly, the Court cannot conclude that Casas-Castrillon’s holding that detention 4 authority shifts from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1226(a) when a petitioner is subject to a 5 final removal order and seeks judicial review of that removal order is “clearly irreconcilable” with 6 Jennings. See id. at *3 (“Because there is a reasonable interpretation of Jennings that leaves 7 Casas intact, the Court remains bound by the Ninth Circuit’s decision in Casas.”); accord Aleman 8 Gonzalez, 2020 WL 1684034, at *20 (“Casas-Castrillon did not construe § 1226(a) in the manner 9 that the [United States Supreme] Court rejected in Jennings.”). Because this aspect of Casas- 10 Castrillon’s holding remains binding, Petitioner’s detention is governed by 8 U.S.C. § 1226(a). 11 Moreover, under 8 U.S.C. § 1226(a), Petitioner is automatically entitled to a bond hearing. See 12 Casas-Castrillon, 535 F.3d at 951 (“[W]e hold that § 1226(a) must be construed as requiring the 13 Attorney General to provide the alien with such a [bond] hearing.”). 14 III. CONCLUSION 15 For the foregoing reasons, the Court finds that Petitioner is entitled a bond hearing. 16 However, because the Court lacks sufficient basis to rule on whether Petitioner is a flight risk or a 17 danger to the community, the Court does not find that Petitioner is entitled to immediate release 18 from ICE custody. Thus, the Court GRANTS in part and DENIES in part Petitioner’s petition for 19 writ of habeas corpus under 28 U.S.C. § 2241 and DENIES as moot Petitioner’s TRO motion. 20 Within 30 days of this order, Respondents must provide Petitioner with a bond hearing before an 21 Immigration Judge who has the power to grant Petitioner’s release on bond if Respondents fail to 22 establish “by clear and convincing evidence that [Petitioner] is a flight risk or a danger to the 23 community.” Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011); see also Aleman Gonzalez, 24 2020 WL 1684034, at *16 (explaining that Jennings did not “undercut our constitutional due 25 process holding in Singh” with respect to “clear and convincing evidence” standard). 26 27 28 14 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER 1 IT IS SO ORDERED. 2 Dated: April 17, 2020 3 4 ______________________________________ LUCY H. KOH United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Case No. 20-CV-01285-LHK AMENDED ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR HABEAS CORPUS; DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER

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