Alejandro-Bernabe v. Barr

JOSE LUIS ALEJANDRO-BERNABE, Petitioner, v. WILLIAM P. BARR, et al., Respondent.

CASE NO. C20-1463-RSM-BAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

January 4, 2021

REPORT AND RECOMMENDATION

Petitioner filed a writ of habeas corpus under 42 U.S.C. § 2241 in which he requests the Court order his immediate release from immigration custody. Dkt. 5. The government contends the Court should deny relief and dismiss the habeas petition, because petitioner is lawfully detained. For the reasons below, the Court recommends the petition be DENIED and the case be DISMISSED with prejudice.

Petitioner alleges he has been detained at the Northwest Immigration and Customs Processing Center (NWIPC) since February 20, 2019, is facing deportation based upon his criminal history, and that his removal is pending review in the Bureau of Immigration Appeals (BIA). Petitioner claims his case is governed by 8 U.S.C. § 1226 (a), not § 1226 (c) because the latter provision was intended to apply only to cases involving detention lasting "roughly a month and a half, and because he believes his removal proceedings are final, notwithstanding his pending BIA appeal. Dkt. 5 at 4. As relief, he asks the Court to order him immediately released. Id. at 2.

On December 10, 2020, respondents filed a return and motion to dismiss and supporting declarations. Dkts. 8, 9, 10. Respondents contend petitioner is a native and citizen of Mexico, entered the United States in 1989 and has committed and been convicted of numerous crimes. Respondents submit in June 2018, petitioner pled guilty to: (1) First Degree Rendering Criminal Assistance; (2) Residential Burglary-Domestic Violence; (3) Third Degree Assault-Domestic Violence; (4) Third Degree Assault; (5) Felony Harassment of Another-Threat to Kill; (6) Felony Harassment of Another-Threat to Kill; (7) Second Degree Malicious Mischief; and (8) Unlawful Imprisonment. Dkt. 8 citing Dkt. 9, Bohl Decl., ¶ 4, Ex. B. Respondents aver the state court sentenced petitioner to 29.75 months to be served concurrently for the foregoing criminal offenses. Id. at ¶ 5, Ex. C.

After petitioner completed his criminal sentences, ICE took custody of him on February 19, 2019, and served notice of removability alleging petitioner was removable because he had been convicted of aggravated felony crimes. Petitioner was transferred to NWIPC the next day. A bond hearing was scheduled for March 25, 2019 but the hearing did not occur because petitioner withdrew his request for the hearing. However, in May 2019, petitioner denied the charges he was removable. The parties briefed the issue and appeared before an immigration judge (IJ) in June 2019. At the hearing petitioner conceded he was removeable. He subsequently filed an application to adjust his status and for relief from removal; the IJ denied the request and ordered petitioner to be removed. Petitioner appealed the IJ's denial to the BIA and the appeal is still pending.

Respondent's return and motion to dismiss was noted for January 1, 2020 for the Court'sconsideration. Petitioner has not filed a reply to respondent's motion and the matter is thus ripe for review.

DISCUSSION

Petitioner contends he should be released under 8 U.S.C. § 1226(a), and because his continued detention violates Due Process.

A. Immigration Law Framework

Petitioner contends 8 U.S.C. § 1226(a) governs his case; Respondents disagree arguing 8 U.S.C. § 1226(c) governs the case. As discussed below, respondent is correct that § 1226(c) governs this case. Federal immigration law permits removal of aliens present in this country if they fall "within one or more ... classes of deportable aliens." 8 U.S.C. § 1227(a). Under § 1226(a), the Secretary of Homeland Security is authorized to arrest and hold an alien "pending a decision on whether the alien is to be removed from the United States."

Section 1226(a) also grants the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an IJ, see 8 CFR §§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018). The alien may secure his release if he can convince the officer or IJ he poses no flight risk and no danger to the community. See §§ 1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). Although 8 U.S.C. § 1226(a) generally allows an alien to seek release in this way, the section also contains a provision making release of an alien subject to the exception below that is contained in § 1226(c).

Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It arose from a "concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in largenumbers." Demore v. Kim, 538 U.S. 510, 513 (2003). To address this concern, Congress mandated that aliens who pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole.

Section 1226(c) consists of two paragraphs, one regarding taking an alien into "[c]ustody" and the other regarding the alien's subsequent "[r]elease." The paragraph on custody sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides the Secretary of Homeland Security must take any alien falling into one of these categories "into custody" "when the alien is released" from criminal custody.

Petitioner does not argue that his felony convictions are not aggravated felonies and that he should not have been brought into immigration custody under 8 U.S.C § 1226(c). Rather, he argues that his immigration detention has now moved from § 1226(c) to § 1226(a) under Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). Dkt 5 at 3-4. Respondent correctly points out the shift from § 1226(a) to § 1226(c) occurs only after an alien's removal proceedings have concluded or are final. See Casas-Castrillon, 535 F.3d at 948 ("Once Casas' proceedings before the BIA were complete, the Attorney General's authority to detain him under § 1226(c) ended and that authority shifted instead to § 1226(a)."). Hence Casas-Castrillon does not support petitioner's argument because petitioner's removal is not final; in fact, petitioner himself avers that the determination regarding his removal is still pending before the BIA. Accordingly, petitioner is mandatorily detained under 8 U.S.C § 1226(c).

B. Due Process

Petitioner also contends his continued detention is "excessive" because he has been confined for "583 days." Dkt. 5 at 6. Respondent contends petitioner's continued detention doesnot violate due process under the test articulated in Mathews v. Eldridge, 424 U.S. 319, 334 (1976). Dkt. 8 at 5. Under the Mathews test, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Id., at 333 (internal quotation marks omitted). This calls for an analysis of (1) private interests, (2) governmental interests, and (3) the probable value of additional procedural safeguards. Id., at 334-35.

In cases involving § 1226(c), judges in this District have utilized the test articulated in Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 5968089, at *6 (W.D. Wash. May 23, 2019), R. & R. adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019). Under the Martinez test the Court considers the following factors:

(1) the total length of detention to date; (2) the likely duration of future detention; (3) whether the detention will exceed the time the petitioner spent in prison for the crime that made him [or her] removable; (4) the nature of the crimes the petitioner committed; (5) the conditions of detention; (6) delays in the removal proceedings caused by the petitioner; (7) delays in the removal proceedings caused by the government; and (8) the likelihood that the removal proceedings will result in a final order of removal.

Id. at 9 (citing, inter alia, Cabral v. Decker, 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018)). The Martinez factors are derived from the Supreme Court's decisions in Demore v. Kim, 538 U.S. 510 (2003), and Zadvydas v. Davis, 533 U.S. 678 (2001), and other circuit court cases holding, as a matter of constitutional avoidance, § 1226(c) implicitly authorizes detention for only a reasonable amount of time. See Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016), vacated in light of Jennings, 2018 WL 4000993 (1st Cir. May 11, 2018); Diop v. ICE/Homeland Sec., 656 F.3d 221, 222-23 (3d Cir. 2011), abrogated by Jennings, 138 S. Ct. 830; Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir. 2003), abrogated by Jennings, 138 S. Ct. 830); Sopo v. U.S. Att'y Gen., 825 F.3d 1199 (11th Cir. 2016), vacated as moot, 890 F.3d 952 (11th Cir. 2018).

Consistent with the decisions of other judges in this District, the Court applies the Martinez factors to address petitioner's request for a bond hearing.

1. Length of Detention to Date

The length of detention is the most important factor. E.g., Martinez, 2019 WL 5968089, at *9; Sajous, 2018 WL 2357266, at *10 (citing Zadvydas, Sopo, and Diop). The longer mandatory detention continues beyond the "brief" period authorized in Demore, the harder it is to justify. See, e.g., Martinez, 2019 WL 5968089, at *9 (nearly 13-month detention weighed in favor of granting a bond hearing); Liban M.J. v. Sec'y of Dep't of Homeland Sec., 367 F. Supp. 3d 959, 963-64 (D. Minn. 2019) ("Although there is no bright-line rule for what constitutes a reasonable length of detention, Petitioner's [12-month] detention has lasted beyond the 'brief period assumed in Demore."); Sajous, 2018 WL 2357266, at *10 ("[D]etention that has lasted longer than six months is more likely to be 'unreasonable', and thus contrary to due process, than detention of less than six months."). Petitioner has been held in ICE custody...