Lopez-Cacerez v. McAleenan

MIGUEL ANTONIO LOPEZ-CACEREZ, Petitioner, v. KEVIN McALEENAN, et al., Respondents.

Case No.: 19-cv-1952-AJB-AGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 9, 2020

ORDER:

(1) GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 1); AND

(2) GRANTING PETITIONER'S MOTION FOR ORDER ON WRITTEN SUBMISSIONS (Doc. No. 16)

Petitioner Miguel Antonio Lopez-Cacerez ("Petitioner") appears before the Court on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("the Petition"). (Doc. No. 1.) Also before the Court is Petitioner's motion for order on written submissions or to set an evidentiary hearing. (Doc. No. 16.) Petitioner has been detained by Immigration and Customs Enforcement ("ICE") since approximately March 2019. (Id. at 5.) Petitioner contends his detention has exceeded the statutory limits and seeks release under appropriate conditions of supervision. The matter is fully briefed. (Doc. Nos. 10, 15.) For the reasons set forth below, the Court GRANTS Petitioner's motion for order on written submissions, and GRANTS IN PART AND DENIES IN PART the Petition.

I. BACKGROUND

Petitioner alleges he is a native and citizen of Honduras. (Doc. No. 1 at 2.) He states he grew up alone "on the streets of Tegucigalpa, Honduras," does not know of any family members in Honduras, and "does not have any Honduran identity documents." (Doc. No. 15 at 8.) When Petitioner was 9 or 10 years old, he allegedly left Honduras alone on a truck to Mexico. (Id.) Petitioner has lived in Mexico all his life since that time, except when he has attempted to enter the United States. (Id.)

Petitioner was ordered deported from the United States for the first time on February 15, 2000. (Id.) Petitioner has been deported/removed to Honduras at least five times: in 2000, 2001, 2007, 2009, and 2011. (Doc. No. 10 at 2; Doc. No. 10-1 at 42, 50, 57, 64, 72, 80.) He has been convicted of illegal entry or re-entry into the United States four times: in 2001, 2009, 2010, and 2018. (Doc. No. 10-1 at 80.) Petitioner states each time he is "removed to Honduras, he travels immediately to Mexico, leaving if he can on the same day he arrives." (Doc. No. 15 at 8.) Throughout Petitioner's interactions with the United States immigration system, Petitioner has provided various names, birth dates, and various names of his mother and father. (Doc. No. 10 at 3.)

On November 24, 2018, Petitioner re-entered the United States, and was arrested on criminal immigration charges. (Doc. No. 1 at 3.) Eventually, judgment was entered in the criminal immigration case, Petitioner was ordered removed from the United States, and Petitioner was taken into ICE custody. (Id.) Since Petitioner has been in immigration custody, Respondents have been unable to obtain travel documents to effectuate Petitioner's removal. (Id.) Petitioner has repeatedly requested travel documents from the Honduran consulate, but the consulate has refused to issue the documents or otherwise allow Petitioner to be deported to Honduras. (Id.) The Honduran consulate's refusal is based on the inability to verify Petitioner's identity. (Id.) According to Respondents, "the matter is receiving special handling by the Honduran embassy in Washington, D.C., and that the Honduran government's Ministry of Foreign Affairs is conducting an investigation for final analysis and resolution of the case." (Id.) Petitioner has not been removed and hasremained in immigration custody since approximately March 2019. (Doc. No. 2 at 6.)

II. PROCEDURAL HISTORY

On October 8, 2019, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, seeking an order directing Respondents to release him from custody under the conditions of supervision as set forth in 8 U.S.C. § 1231(a)(3). (Doc. No. 1.) Respondents filed their Return in opposition to the Petition on March 11, 2020. (Doc. No. 10.) Petitioner filed a Traverse on March 25, 2020. (Doc. No. 15.) On May 26, 2020, Petitioner also filed a motion for an order on written submissions or to set an evidentiary hearing. (Doc. No. 16.) This order follows.

III. JURISDICTION

Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge the extent of the Attorney General's authority to detain a removable alien under the statutes authorizing detention. See Zadvydas v. Davis, 533 U.S. 678, 687-89 (2001); see also Demore v. Kim, 538 U.S. 510, 516-17 (2003). Although the REAL ID Act of 2005 divested district court jurisdiction over habeas petitions challenging orders of removal, it does not divest the district court of jurisdiction over challenges to detention. See Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (citation omitted). However, the scope of the federal courts' review is limited to constitutional claims and questions of law. See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). Here, Petitioner challenges his continued detention and not the validity of a final order of removal. Therefore, this Court has jurisdiction under 28 U.S.C. § 2241 to consider his Petition.

IV. DISCUSSION

A. The Parties' Contentions

At the center of this dispute, Petitioner argues he should be released under conditions of supervision because he has been detained for over a year, and his detention exceeds the six-month reasonable detention period to effectuate the removal of an alien announced in Zadvydas v. Davis, 533 U.S. 678 (2001). (Doc. No. 1 at 5.) In opposition, Respondents maintain that because Petitioner has failed to cooperate in the efforts to remove him, hisdetention is justified as an exception. In reply, Petitioner maintains that this exception should not apply because he has cooperated in his repatriation process, and there are suspect circumstances surrounding Respondents' argument that Petitioner has failed to cooperate. (Doc. No. 15 at 15.)

B. Statutory Framework

Ordinarily, the Attorney General must remove an alien in custody within ninety days from the issuance of a final removal order. See 8 U.S.C. § 1231(a)(1)(A)-(B). Two "exceptions" are relevant to this case. First, § 1231(a)(6) provides for an extension to the ninety-day rule: "[a]n alien ordered removed . . . who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period . . . . " 8 U.S.C. § 1231(a)(6). However, in Zadvydas, the United States Supreme Court clarified this extension by establishing a three-month discretionary detention period beyond the initial ninety days, during which detention remains presumptively valid. See Zadvydas, 533 U.S. at 701. Thus, the post-removal-period is presumptively limited to six months in order to prevent the Government from detaining an alien indefinitely. Id. "This . . . does not mean that every alien not removed must be released after six months" as the presumptive six-month period is rebuttable. Id. Following the six-month period, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. Also, detention beyond the six-month period is "prolonged" and "requires that adequate procedural safeguards be in place to protect against the erroneous deprivation of liberty." Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011). An alien subjected to prolonged detention is "entitled to a bond hearing before an immigration judge ('IJ') and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community." Id. at 1092.

A second "exception" to the ninety-day removal period is provided in 8 U.S.C. § 1231(a)(1)(C), which states:

The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.

8 U.S.C. § 1231(a)(1)(C).

The Ninth Circuit has held that the same six-month time limitation does not apply to § 1231(a)(1)(C) because the provision does not present the same constitutional concerns as raised by § 1231(a)(6)—the provision at issue in Zadvydas. The same risk of indefinite detention does not exist when an alien is the cause of his own detention. Petitioners that cause obstructions to the repatriation process have the "keys [to their freedom] in [their] pocket" and could likely effectuate their removal by providing the information requested. Pelich v. I.N.S., 329 F.3d 1057, 1060 (9th Cir. 2003)

C. Analysis

It is undisputed that Petitioner has been detained by Respondents for over a year. Thus, with the above statutory framework in mind, the Court will address Respondents' contention that § 1231(a)(1)(C) applies to extend the permissible detention period. The Court will also address Petitioner's contention that his detention beyond the six-month period is improper.

1. Whether § 1231(a)(1)(C) Applies

Respondents argue this case falls within the § 1231(a)(1)(C) exception, and is controlled by Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003), because Petitioner's long history of providing false biographical information to the U.S. Border Patrol and ICE has complicated current efforts to effectuate his repatriation. (Doc. No. 10 at 3-4.) Respondents argue they have been diligently attempting to obtain travel documents to repatriate Petitioner, but the Honduran government has been unable to verify that he is a Honduran citizen. (Id. at 1.) Respondents explain the "Honduran government has stricter guidelines now, and [Petitioner's] extensive history of inconsistent biographical information has complicated efforts to verify his identity. ICE is accordingly issuing him a March 11, 2020decision letter, finding that he...