Hulke v. Schmidt

572 F.Supp.3d 593

Miguel Espinoza HULKE, Petitioner,

v.Sheriff Dale J. SCHMIDT and Henry Lucero, Defendants.

Case No. 21-CV-845-JPS

United States District Court, E.D. Wisconsin.

Signed November 19, 2021

Mark M. Fleming, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Michael A. Carter, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, for Defendants.

ORDER

J. P. Stadtmueller, United States District Judge

This case presents a novel issue in this Circuit. The question is whether Miguel Espinoza Hulke ("Hulke"), who is not a citizen of the United States and who has been held in jail for nearly two years pending the outcome of his appealed applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), is constitutionally entitled to a second bond hearing pursuant to 8 U.S.C. § 1226(a). Hulke brings this petition for habeas relief pursuant to 28 U.S.C. § 2241. The Government contends that Hulke, who received a bond hearing earlier in the proceedings, has received all the process that he is due. Hulke argues that the burden of proof imposed during the original bond hearing was improperly placed on him and, in the alternative, that he has been detained for so long that a second bond hearing is constitutionally due.

For the reasons explained below, the Court will grant Hulke's habeas petition and deny the Government's motion to dismiss. Hulke shall receive a second bond hearing, which will occur before the assigned immigration judge. See 8 U.S.C. § 1226(a), (e) (conferring authority for immigration detention to the administrative branch and limiting judicial review). At that hearing, "due process requires the [G]overnment to either (1) prove by clear and convincing evidence that [Hulke] poses a danger to the community or (2) prove by a preponderance of the evidence that [he] poses a flight risk." Hernandez-Lara v. Lyons , 10 F 4th 19, 41 (1st Cir. 2021).

1. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Hulke, a Peruvian citizen, has been subject to removal proceedings for the past seven years. (Docket #1 ¶ 25). According to his habeas petition, Hulke suffered persecution for his sexual orientation in Peru. When he was fourteen years old, he came to the United States to visit his sister, who had been adopted by an American family. The American family wished to adopt Hulke as well, but a translation error at the Peruvian embassy led the family to believe that they could not adopt him until he turned eighteen. On his eighteenth birthday, when the American family attempted to adopt Hulke, they were informed that he was too old to obtain citizenship through the adoption.

Although Hulke is able to live as an openly gay man in the United States, he struggles with his past trauma and lack of immigration status. In 2012, after Hulke was convicted of driving under the influence ("DUI"), the Department of Homeland Security ("DHS") placed Hulke in removal proceedings. After a brief detention in DHS custody, Hulke was released on bond to fight his case in immigration court. Hulke's asylum, withholding of removal, and CAT claims are currently on appeal before the Seventh Circuit, which granted a stay of Hulke's removal pending the outcome of his case. (Id. ¶¶ 23, 24).

In 2019, due to a variety of factors, Hulke suffered an alcohol relapse and was arrested for another DUI—his first in six years. He served a six-month sentence for the conviction. After he completed his sentence, Hulke was transferred to Immigration and Customs Enforcement ("ICE") custody on December 3, 2019. He has been incarcerated at Dodge County Detention Facility ever since.

At a bond hearing in the spring of 2020, Hulke's previous immigration attorney—whose alleged failings are the subject of Hulke's appeal before the Seventh Circuit—neglected to secure Hulke's adoptive parents’ testimony in support of whether he poses a flight risk. Presently, Hulke brings a habeas petition on the grounds that (1) the immigration judge (the "IJ") applied an incorrect legal standard in determining whether Hulke should be detained, and (2) at this juncture, after over twenty-three months of detention, Hulke has been held for an unconstitutional amount of time and deserves a second bond hearing. The Court will address each argument in turn.

2. ANALYSIS

2.1 Burden of Proof at Bond Hearings for Noncitizens Detained Pursuant to § 1226(a)(1)

Hulke is being detained pursuant to 8 U.S.C. § 1226(a)(1), which permits—but does not require—the detention of noncitizens facing removal. It states, in relevant part,

[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on-- [either bond or conditional parole]

In other words, § 1226(a)(1) grants the executive branch discretion to determine whether to detain or release a noncitizen who is facing removal proceedings. Section 1226(a)(1) does not describe the burden of proof at the bail hearing, nor does it state to whom the burden should fall.

In contrast, § 1226(c) mandates the detention of noncitizens with criminal conviction that renders them inadmissible or deportable. See id. § 1182(a)(2), (a)(3)(B), 1227(a)(2)(A)(i)–(iii), (B)–(D), (a)(4)(B) (listing inadmissible and deportable convictions). Under § 1226(c), bail hearings are only available to people seeking witness protection. If a noncitizen held under § 1226(c) seeks bail on witness protection grounds, § 1226(c)(2) explicitly places the burden of proof on the noncitizen to "satisf[y] the Attorney General that the [noncitizen] will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding."

When a noncitizen facing removal is first detained pursuant to § 1226(a), the decision of whether to keep him in custody or release him initially falls to a DHS officer. See 8 C.F.R. § 236.1(c)(8). If the officer elects custody, the noncitizen may request a bond hearing, at which the officer's decision will be revisited by an IJ. Id. §§ 236.1(d)(1), 1003.19, 1236.1(d)(1). Virtually all information is admissible at the bond hearing. 8 C.F.R. § 1003.19(d). An individual may appeal the IJ's bond determination to the Board of Immigration Appeals (the "BIA"), or, if his circumstances change, he may request another bond hearing. 8 C.F.R. §§ 236.1(d)(3), 1003.19(e), (f), 1003.38, 1236.1(d)(3).

There is no Supreme Court case or Seventh Circuit precedent that clarifies which party bears the burden at a § 1226(a)(1) bond hearing. In 2018, the Supreme Court came close to the issue in Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), but the ultimate holding is not instructive to this case. In Jennings , in an attempt to interpret § 1226(a)(1) in a way that would render it constitutional, the Ninth Circuit "read" a six-month periodic bond hearing requirement into the statute and ordered that the "Attorney General must prove by clear and convincing evidence that the alien's continued detention is necessary." Id. at 847. The Supreme Court overturned this interpretation of § 1226(a)(1), explaining that "nothing" in the statute's text "even remotely supports the imposition of either of those requirements." Id. at 847. The Supreme Court explicitly did not reach the constitutional arguments regarding § 1226(a)(1) ’s bail provisions. Id. at 851–52.

Three years later—while this habeas petition was pending—the First Circuit became the first circuit to squarely reach the constitutionality of § 1226(a)(1) ’s bail provisions. The First Circuit concluded that due process requires "the [Government] [to] bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under § 1226(a)." Hernandez-Lara , 10 F.4th at 39. Against this backdrop, the Court turns to Hulke's contention that the burden of proof was unconstitutionally applied to him at his § 1226(a) bond hearing, such that his due process rights were violated.

2.1.1 Mathews Test

"No one disputes that the Fifth Amendment entitles noncitizens to due process of law." Velasco Lopez v. Decker , 978 F.3d 842, 850 (2d Cir. 2020) (citing Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ). The Fifth Amendment's due process protections "appl[y] to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis , 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotations omitted). To determine whether a § 1226(a) detention violates due process, courts apply the three-part test set forth in Mathews v. Eldridge , 424 U.S. 319, 355, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which is used to assess the constitutionality of civil commitments. See e.g., Hernandez-Lara , 10 F.4th at 28. The Mathews test considers

[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. 893.

As to the first factor, Hulke's private interests are greatly affected by the Government's actions. At issue, here, is his liberty. Indeed, Hulke's "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that the Clause protects." Zadvydas , 533 U.S. at 689–90, 121 S.Ct. 2491 (holding that a noncitizen awaiting removal may not be detained indefinitely). Although...