Incze v. ICE Field Office Director

Gyula Attila Incze, Petitioner, v. ICE Field Office Director, Respondent.

No. 2:21-cv-00074-JLR-DWC

United States District Court, W.D. Washington, Tacoma

June 30, 2021

Noting Date: July 16, 2021

REPORT AND RECOMMENDATION

David W. Christel United States Magistrate Judge

I. INTRODUCTION

Petitioner who is currently detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in Tacoma Washington, brings this 28 U.S.C. § 2241 habeas action pro se to obtain release from detention or a bond hearing. Currently before the Court is the Government's return memorandum and motion to dismiss and accompanying declarations. Dkts. 10, 11, 12. Petitioner has filed a response, along with two “supplements”. Dkts. 13, 14, 15. The Government has filed a reply, together with a supplemental declaration. Dkts. 15, 16. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends the Government's motion to dismiss be GRANTED, the petition be DENIED, and this case be DISMISSED with prejudice.

II. BACKGROUND

Petitioner, a native and citizen of Romania, was admitted to the United States as a refugee on January 30, 1992. Dkt. 12 at ¶ 3. On February 26, 1993, petitioner adjusted his status to lawful permanent resident, retroactive to his entry date. Id. at ¶4.

Between 1994 and 2016, petitioner was convicted of multiple offenses in Florida, for which he was sentenced to various terms of probation. Id. at ¶¶ 5-9. On October 31, 2017, petitioner was convicted in Linn County, Oregon of the offense of Unlawful Delivery of Methamphetamine, for which he was sentenced to an indeterminate term of 30 days in jail and 36 months of supervision. Id. at ¶10; Dkt. 11-3 at 3. On April 18, 2018, petitioner was convicted in Benton County, Oregon of Delivery of Methamphetamine and sentenced to ten months in prison. Dkt. 12 at ¶16. On July 15, 2019, petitioner was sentenced to serve 25 months in prison for violation of his probation with respect to his Linn County offense. Dkt. 11-3 at 6-7. On July 15, 2020, while serving his sentence, petitioner was convicted in Benton County, Oregon on a guilty plea to Unlawful Possession of Methamphetamine, a misdemeanor, and was sentenced to 30 days in jail, to be served concurrently with other sentences. Dkt. 11-3 at 7-9. Petitioner was released from prison on December 30, 2020 and turned over to ICE custody. Dkt. 12 at ¶¶ 3-4.

ICE had previously pursued removal proceedings against petitioner after his Linn County conviction, in which petitioner ultimately conceded removability on March 6, 2018. Dkt. 12 at ¶14. However, on January 22, 2019, an Immigration Judge granted petitioner cancellation of removal. Id. at ¶ 18. On January 6, 2021, ICE served petitioner with a Notice to Appear in his current immigration proceeding, charging him with removability pursuant to 8 U.S.C. §1227(a)(2)(B)(i), based upon his 2020 Benton County misdemeanor methamphetamine possession conviction. Dkt. 11-4 at 2, 5.

Petitioner appeared before an Immigration Judge (“IJ”) for a bond hearing on January 26, 2021 and was denied release because detention was statutorily mandated. Dkt. 12 at ¶21. Petitioner reserved his right to appeal the decision but did not file an appeal at that time. Dkt. 12 at ¶21.^[1] However, petitioner has attached to his reply materials in this case a copy of an appeal to the Board of Immigration Appeals (“BIA”) dated May 7, 2021. Dkt. 17. Petitioner has also received at least two custody redeterminations pursuant to the class action order in Fraihat v. ICE, 445 F.Supp.3d 751 (C.D. Cal. Apr. 20, 2020), as a detainee identified as potentially at higher risk for serious illness due to COVID-19. Dkt. 7 at 167; Dkt. 14 at 18. In both instances- on January 11, 2021 and March 11, 2021-ICE determined petitioner posed a threat to public safety and continued detention was appropriate. Id.

On March 22, 2021, following a hearing, the IJ denied petitioner's applications for relief and ordered petitioner removed to Romania or, in the alternative, Austria or Hungary. Dkt. 12 at ¶ 22. Petitioner initially waived his right to appeal (Dkt. 12 at ¶25), but he has since filed an appeal with the BIA, which was accepted on April 21, 2021 and is currently pending. Dkt.16 at ¶ 8.

III. DISCUSSION

A. Statutory Basis for Petitioner's Detention

Title 8 U.S.C. § 1226 provides the framework for the arrest, detention, and release of noncitizens who are in removal proceedings.^[2] Petitioner asserts he is detained pursuant to 8 U.S.C. 1226(a). Dkt. 7 at 3. The Government contends petitioner's detention is instead governed by Section 1226(c). Dkt. 15 at 1.

The Government is correct. Section 1226(a) grants DHS the discretionary authority to determine whether a noncitizen should be detained, released on bond, or released on conditional parole pending the completion of removal proceedings, unless the noncitizen falls within one of the categories of criminals described in § 1226(c), for whom detention is mandatory until removal proceedings have concluded. 8 U.S.C. § 1226; Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830, 846-48 (2018). Section 1226(c) includes any noncitizen who “is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.” 8 U.S.C. § 1226(c)(1)(B). Petitioner was found to be deportable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)^[3], and therefore falls into this category. Dkt. 11-4 at 5; Dkt. 11-1. Accordingly, petitioner's detention is governed by Section 1226(c) and is statutorily mandated until his removal proceedings have concluded.

Petitioner argues his immigration detention has now moved from § 1226(c) to § 1226(a) under Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008). Dkt. 7 at 3-4. To the extent Casas-Castrillon remains authoritative, ^[4] it does not shift the basis of petitioner's detention here. Under Casas-Castrion, the shift from § 1226(a) to § 1226(c) would occur 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).”). Here, petitioner's removal is not final; in fact, the record shows the determination regarding his removal is still pending before the BIA. Dkt. 16 at ¶ 8.

Petitioner is mandatorily detained under 8 U.S.C § 1226(c) and is therefore not statutorily eligible for an individualized determination as to whether he should be released on bond. See Jennings, 138 S.Ct. at 842, 847.

B. Due Process

Even if authorized under Section 1226(c), petitioner's continued detention must comport with due process. Petitioner argues his detention has become prolonged and violates his due process rights; he requests release or a bond hearing. The Government counters that petitioner's continued mandatory detention is reasonable. For the reasons discussed below, the Court concludes petitioner's detention has not become unreasonably prolonged and the Constitution therefore does not, at this time, require that he be provided a bond hearing.

In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a due process challenge to § 1226(c). The Supreme Court explained Congress drafted § 1226(c) to respond to the high rates of crime and flight by removable noncitizens convicted of certain crimes and held “the Government may constitutionally detain deportable [noncitizens] during the limited period necessary for their removal proceedings.” Id. at 518-21, 526. In so holding, the Supreme Court stressed the “brief” nature of the mandatory detention under § 1226(c), which has “a definite termination point” that, in the vast majority of cases, resulted in detention of less than about five months. Id. at 529-30. Justice Kennedy's concurring opinion, which created the majority, reasoned that under the Due Process Clause, a noncitizen could be entitled to “an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532.

Since Demore, the Ninth Circuit has expressed “grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government's arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin (“Rodriguez IV”), 909 F.3d 252, 256 (9th Cir. 2018). Overwhelmingly, district courts considering the constitutionality of prolonged mandatory detention-including other judges in this District-“agree that prolonged mandatory detention pending removal proceedings, without a bond hearing, ‘will-at some point-violate the right to due process.'” 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) (quoting Sajous v. Decker, No. C18-2447, 2018 WL 2357266, at *8 (S.D.N.Y. May 23, 2018), and collecting cases); see also Banda v. McAleenan, 385 F.Supp.3d 1099, 1106 (W.D. Wash. 2019) (Robart, J.) (“[U]nreasonably prolonged detention under [8 U.S.C.] § 1225(b) without a bond hearing violates due process.”); Djelassi, 434 F.Supp.3d at 923-24 (granting habeas petition and ordering bond hearing for noncitizen whose mandatory detention had become unreasonably prolonged).

C. Test to Determine Reasonableness of Prolonged Detention Under § 1226(c)

Courts in this District have adopted a “multi-factor analysis that many other courts have relied upon to determine whether § 1226(c) detention has become unreasonable.” Martine...