Haughton v. Crawford

221 F.Supp.3d 712

Myron Anthony HAUGHTON, Petitioner,

v.Jeffrey CRAWFORD, et al., Respondents.

1:16-CV-634(LMB/IDD)

United States District Court, E.D. Virginia, Alexandria Division.

Filed October 28, 2016

Alfred Lincoln Robertson, Jr., Robertson Law Office, PLLC, Alexandria, VA, for Petitioner.

Lauren A. Wetzler, United States Attorney Office, Alexandria, VA, for Respondents.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is respondents' Motion to Alter or Amend the Judgment [Dkt. No. 17], in which the respondents petition the Court to reconsider the bond procedures established by the Memorandum Opinion [Dkt. No. 12] and Order [Dkt. No. 13] of October 7, 2016 and instead require an immigration officer to make a bond determination in accordance with the procedures established in 8 C.F.R. § 236.1, which places the burden of proof on the alien and provides that, to the extent the petitioner is dissatisfied with that determination, he may appeal to an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA).

This civil action arises out of a habeas petition filed by petitioner Myron Anthony Haughton, who has been held in pre-removal detention for over a year. He has been detained since October 2015 and is subject to mandatory pre-removal detention pursuant to 8 U.S.C. § 1226(c), which applies to certain categories of criminal aliens, due to a series of burglary convictions earned while he was a teenager. Compl., [Dkt. No. 1] ¶ 1. In May 2016, an IJ waived petitioner's criminal convictions based on a finding of "exceptional and extremely unusual" hardship to his wife and two children—all U.S. citizens—and granted him permanent residency. Id. The government timely appealed the IJ's decision to the BIA. Id. Haughton subsequently petitioned for a writ of habeas corpus, arguing that due process entitles him to an individualized bond hearing. Id. ¶ 2.

In a Memorandum Opinion dated October 7, 2016, this Court held that "the serious constitutional concerns raised by prolonged detention require implying a reasonable time limitation in § 1226(c)" and concluded that petitioner's detention had become unreasonable. [Dkt. No. 12] at 13, 18. Drawing on this conclusion, the Court ordered the government to provide petitioner with an individualized bond hearing within 30 days. [Dkt. No. 13]. With respect to the procedural framework for the hearing, the Court found that "neither the government nor the petitioner has made any argument about either the burden or standard of proof." [Dkt. No. 12] at 22. Therefore, "in the interest of uniformity," the Court adopted "the framework established by the Second, Third, and Ninth Circuits," which the Court erroneously described as the only courts of appeals to explicitly address these issues, and held that "the government must release the petitioner unless it can establish by clear and convincing evidence that he poses a risk of flight or a risk of danger to the community." Id. at 22.

As explained in the respondents' motion for reconsideration, contrary to the Court's statement in the Memorandum Opinion, respondents did briefly address the procedural framework for the bond hearing, admittedly in a two-sentence footnote on the signature page of their Motion for Summary Judgment, citing to the Eleventh Circuit decision in Sopo v. U.S. Attorney Gen. , 825 F.3d 1199, 1219–20 (11th Cir. 2016), see [Dkt. No. 4] at 26 n. 11. Because the Eleventh Circuit's discussion of the appropriate standard had not been fully briefed, the Court granted the parties' request to submit additional briefing on this question. Order of Oct. 17, 2016, [Dkt. No. 16]. The issue has now been fully briefed and, after considering the arguments advanced by the parties, this Court declines the respondents' request that it reconsider the procedural framework set forth in the Memorandum Opinion.

Requiring the government to both bear the burden of proof and prove its case by clear and convincing evidence is consistent with the demands of due process. As the Supreme Court has explained, "due process places a heightened burden of proof on the [government]" in civil proceedings where an individual's liberty interests are threatened. See Cooper v. Oklahoma , 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). "Freedom from imprisonment" lies "at the heart of the liberty interest" protected by the Due Process Clause. Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In keeping with this principle, "government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." Id. (internal citations omitted). But, even in this narrow subset of circumstances where detention is permissible, the government is generally required to satisfy the burden of establishing that detention is merited in an individual case. For example, in both pretrial detention, United States v. Salerno , 481 U.S. 739, 751, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), and civil commitment, Addington v. Texas , 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the government must establish the necessity of detention by clear and convincing evidence. According to the Supreme Court, this procedural framework "strikes a fair balance between the rights of the individual and the legitimate concerns of the state." Id. at 431, 99 S.Ct. 1804. Stated differently, "due process requires ‘adequate procedural protections' to ensure that the government's asserted justification for physical confinement ‘outweighs the individual's constitutionally protected interest in avoiding physical restraint.’ " Casas – Castrillon v. Dep't of Homeland Sec. , 535 F.3d 942, 950 (9th Cir. 2008) (quoting Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 ). As the constitutional encroachment increases, so too must the attendant procedural protections.

In petitioner's case, the Court has already concluded that the duration of his year-long detention has become unreasonable and ongoing detention without a bond hearing infringes his right to due process. In light of this ongoing infringement, the balance between individual and government interests requires that the burden of justifying petitioner's continued detention falls upon the government. See Mathews v. Eldridge , 424 U.S. 319, 334–35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (explaining that the dictates of due process depend on the private interests affected, the risk of erroneous deprivation of those interests, and the government's interests).

In addition to conforming to the framework adopted by the Second, Third, and Ninth Circuits, Lora v. Shanahan , 804 F.3d 601, 605 (2d Cir. 2015) ("[A] detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community."); Diop v. I CE /Homeland Sec. , 656 F.3d 221, 226 (3d Cir. 2011) ("[T]he Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute."); Singh v. Holder , 638 F.3d 1196, 1203 (9th Cir. 2011) ("[T]he government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond ...."), this approach is consistent with the Fourth Circuit's analysis in an analogous context. See United States v. Comstock , 627 F.3d 513 (4th Cir. 2010). In Comstock , the court was asked to determine whether 18 U.S.C. § 4248, a civil commitment statute applicable to sex offenders which requires the government to prove by "clear and convincing evidence that the certified person has engaged or attempted to engage in sexually violent conduct or child molestation and is sexually dangerous to others," affords adequate procedural protections. Id. at 515 (internal citation omitted). The court concluded that, because the government bore the burden of demonstrating by clear and convincing evidence that individualized detention fulfills the commitment statute's purpose, the provision was constitutional. Id. at 524–25. In reaching this conclusion, the Fourth Circuit emphasized that the Supreme Court "has never retreated" from its long history of mandating a similar proof scheme in civil commitment proceedings. Id. at 524 (collecting cases).

Pre-removal detention is a form of civil, not criminal detention. Therefore applying the traditional burden and quantum of proof to petitioner's bond hearing is appropriate. This standard is also consistent with what appears to be the only other case in the Fourth Circuit to address this question. See Jarpa v. Mumford , No. CV PX 16–2649, 211 F.Supp.3d 706, 2016 WL 5661659 (D. Md. Sept. 30, 2016). There, the court concluded that § 1226(c) contains an implicit reasonable time limitation and ordered that the petitioner be afforded an individualized bond hearing where the burden is on the government to demonstrate by clear and convincing evidence that petitioner was either a flight risk or a danger to the community. This procedural framework was adopted based on the court's conclusion that, in "the context of civil commitment proceedings, the Supreme Court time and again has rejected laws that place on the individual the burden of protecting his or her fundamental rights." Id. at 721, 2016 WL 5661659 at *12. The court also placed great weight on its conclusion that the petitioner "had already been deprived of a liberty interest under circumstances which violate his right to due process." Id. at 722, 2016 WL 5661659 at *13.

The respondents' primary argument is that petitioner's bond hearing should conform to the procedural framework set forth in 8 C.F.R. §§ 236.1(c)(8), (d)(1), (d)(3), which provides that an...