Kharis v. Sessions

ALEXEY GENNADYEVICH KHARIS, Plaintiff, v. JEFFERSON B SESSIONS, III, et al., Defendants.

Case No. 18-cv-04800-JST

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

November 6, 2018

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO SEAL

Re: ECF No. 1, 3

Before the Court is Petitioner Alexey Kharis's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Kharis is currently in detention while he awaits the conclusion of asylum and removal proceedings. Kharis asks the Court to order his immediate release from custody, arguing that the immigration judge ("IJ") and Board of Immigration Appeals ("BIA") committed legal and constitutional errors in determining that Kharis did not merit release on bond. In addition, Kharis has filed a motion to file under seal certain documents in support of his petition. ECF No. 3.

For the reasons stated below, the Court grants motion to seal, and the Court grants the petition in part.

I. BACKGROUND

Kharis is a 43-year-old Russian citizen who lawfully entered the United States on a B-2 nonimmigrant visa on September 10, 2014. ECR No. 2 at 51. Kharis's wife, Anna Tutckaia, and two children also entered the United States on B-2 nonimmigrant visas in September 2014. Id. at 9. On March 14, 2015, the United States Citizenship and Immigration Services ("USCIS") granted Tutckaia a change of status to F-1 nonimmigrant status (a student visa), allowing Kharis to obtain F-2 nonimmigrant status as a derivative spouse. Id. at 10.

In June 2015, the International Criminal Police Organization ("Interpol") published a "Red Notice" at Russia's request, stating that Kharis was a fugitive subject to a Russian arrest warrant for his participation in a criminal group that allegedly embezzled 4 billion roubles (approximately $114 million) from a state-owned shipyard construction project. ECF No. 4-1 at 7-8. Interpol publishes these notices at the request of member countries, distributing them to other member countries and their law enforcement agencies. ECF No. 4-4 at 22. "Once published by Interpol, each member country determines what effect to give to a Notice within its jurisdiction according to its national law and practice." Id. It is undisputed that the United States does not consider a Red Notice an independent basis for an arrest because "it does not meet the requirements for arrest under the 4th Amendment." Id. A few months later, the Russian government charged Kharis with various financial crimes in connection with the allegations contained in the Red Notice. ECF No. 4-1 at 10.

On May 2, 2016, while still in lawful F-2 nonimmigrant status, Kharis filed an application for asylum and withholding of removal. ECF No. 2 at 17-30. In his asylum application, Kharis disclosed the nature of the charges against him and claimed a reasonable fear based on political persecution. ECF No. 2 at 32. According to Kharis, the Russian government initiated a criminal prosecution against his business partner, Igor Borbot, in retaliation for Borbot reporting government corruption related to the shipyard project. ECF No. 3-3 at 11. Kharis claimed that when he refused to give false testimony against Borbot and instead threatened to go public, he also became a target, leading to the issuance of the Red Notice and the subsequent criminal charges. Id. at 13.

While Kharis's asylum application was still pending, USCIS revoked Tuckaia's F-1 nonimmigrant status, and with it, Kharis's F-2 nonimmigrant status. ECF No. 2 at 9-15. USCIS cited the fact that Kharis was "wanted by the judicial authorities of Russia on charges of a large scale fraud" as one of the reasons Tuckaia could no longer establish admissibility. Id. at 10.

On August 16, 2017, Kharis attended an appointment to pick up a decision on his asylum application at the San Francisco Asylum Office. Id. at 50-51. There, the government served Kharis with a Notice to Appear for removal proceedings, charging him as removable under 8U.S.C. § 1227(a)(1)(B) for overstaying his visas. Id. at 41-42. The Department of Homeland Security (DHS) determined that custody was necessary because Kharis was a "flight risk due to [the] warrant issued by Russia." Id. at 46. Kharis sought review of that custody determination and received a bond hearing before an IJ on August 30, 2017. ECF No. 11 at 4-18.¹ The IJ denied bond, concluding that Kharis was a flight risk because of the Red Notice. Id. at 15.

Kharis appealed the IJ's bond determination to the BIA on September 29, 2017. ECF No. 14-1 ¶ 14. Pursuant to agency policy, the IJ issued a written memorandum explaining the bond determination. ECF No. 2 at 423-24. On January 5, 2018, the BIA affirmed the IJ. Id. at 427-28.

On March 2, 2018, Kharis filed a motion for a redetermination of custody status with the IJ. ECF No. 2-1 at 4-16. With his motion, Kharis submitted additional evidence disputing the reliability of the Red Notice, among other things. See id. at 20-21. Three days later, the IJ denied the motion in a minute order, finding no changed circumstances. ECF No. 4-4 at 5.

On May 7, 2018, the IJ denied Kharis's asylum claim on the merits. See id. at 249. Kharis's appeal of the IJ's asylum determination is currently pending with the BIA. Id. at 268.

On July 17, 2018, Kharis filed another motion for custody redetermination, id. at 7, accompanied by further evidence of the unreliability of Red Notices and abuse of the system by the Russian government. See id. at 17. DHS opposed the motion, arguing the Red Notice remained pending and that Kharis's additional evidence did not constitute a material change in circumstances. Id. at 249-51. Further, DHS argued, Kharis presented a greater flight risk once the IJ denied his asylum claim. Id. at 250. On July 18, 2018, the IJ denied Kharis's motion, adopting the reasons set forth in DHS's opposition. Id. at 255. Kharis appealed that denial to the BIA on August 7, 2018. Id. at 259-61. It is currently pending.

One day later, on August 8, 2018, Kharis petitioned this Court for habeas corpus relief. ECF No. 1 ("Pet.").

II. MOTION TO SEAL

A party seeking to seal a document filed with the court must (1) comply with Civil Local Rule 79-5; and (2) rebut a "strong presumption in favor of access" that applies to all documents other than grand jury transcripts or pre-indictment warrant materials. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citation omitted).

With respect to the first prong, Local Rule 79-5 requires, as a threshold, a request that (1) "establishes that the document, or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection under the law"; and (2) is "narrowly tailored to seek sealing only of sealable material." Civil L.R. 79-5(b). An administrative motion to seal must also fulfill the requirements of Local Rule 79-5(d). "Reference to a stipulation or protective order that allows a party to designate certain documents as confidential is not sufficient to establish that a document, or portions thereof, are sealable." Civil L.R. 79-5(d)(1)(A).

With respect to the second prong, the showing required for overcoming the strong presumption of access depends on the type of motion to which the document is attached. "[A] 'compelling reasons' standard applies to most judicial records. This standard derives from the common law right 'to inspect and copy public records and documents, including judicial records and documents.'" Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (citation omitted) (quoting Kamakana, 447 F.3d at 1178). To overcome this strong presumption, the party seeking to seal a judicial record must "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure." Kamakana, 447 F.3d at 1178-79 (internal quotation marks and citations omitted).

On the other hand, records attached to motions that are only "tangentially related to the merits of a case" are not subject to the strong presumption of access. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). Instead, a party need only make a showing under the good cause standard of Rule 26(c) to justify the sealing of the materials. Id. at 1097. A court may, for good cause, keep documents confidential "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c).

Because Kharis's habeas petition is more than tangentially related to the merits of his case,the compelling reasons standard applies. "'[C]ompelling reasons' sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such 'court files might have become a vehicle for improper purposes,' such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets." Kamakana, 447 F.3d at 1179 (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)).

Here, Kharis has filed an unopposed motion to file under seal portions of his asylum application that pertain to other individuals' applications. ECF No. 3; see also ECF No. 13. The first prong is met because the contents of asylum applications are generally confidential. See 8 C.F.R. § 208.6. The Court also agrees with Kharis that there are compelling reasons to keep this particular information confidential, given the sensitive nature of asylum applications alleging fear of persecution or harassment. Accordingly, the motion to file under seal is granted.

III. LEGAL STANDARD

The government has detained Kharis pursuant to 8 U.S.C. § 1226(a), which authorizes his detention until judicial review of his application for asylum and withholding of removal is complete. See Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008).² In an initial bond determination under § 1226(a), the alien "must establish to the...