Marco C.-P. v. Garland

MARCO A. C.-P., Petitioner, v. MERRICK GARLAND, U.S. Attorney General;ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security;TAE D. JOHNSON, Acting Director, Immigration and Customs Enforcement;PETER BERG, Director, St. Paul Field Office, Immigration and Customs Enforcement;and JOEL BROTT, Sheriff, Sherburne County, Respondents.

Civil No. 20-1698 (JRT/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

May 18, 2021

MEMORANDUM OPINION AND ORDER ADOPTING MODIFIED REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Bruce D. Nestor, DE LEON & NESTOR, LLC, 3547 Cedar Avenue South; Paul Abraham Dimick and Teresa J. Nelson, AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA, P.O. Box 14720, Minneapolis, MN 55414, for petitioner;

Ana H. Voss, Ann M. Bildtsen, and Chad A. Blumenfield, UNITED STATES ATTORNEY'S OFFICE, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for respondent.

Petitioner Marco A. C.-P. filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, requesting a bond hearing related to his detention during withholding-only immigration proceedings. Magistrate Judge Tony Leung issued a Report & Recommendation ("R&R"), recommending that the Court find that Petitioner is entitled to an individualized bond hearing. The United States objected to the R&R, arguing that Petitioner is not entitled to a bond hearing because there is a significant likelihood of his removal in the reasonably foreseeable future.

Because the Court finds that Petitioner has been subjected to prolonged detention and has provided reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, which the United States has not sufficiently rebutted, the Court will order that Petitioner receive an individualized bond hearing before an Immigration Judge. The Court also finds that due process considerations require that the United States bear the burden at the bond hearing of demonstrating by clear and convincing evidence that continued detention is warranted. The Court will therefore overrule the United States' objections, adopt the R&R, and grant the petition in part.

BACKGROUND

I. FACTUAL BACKGROUND

In 2004, Petitioner, a native and citizen of Mexico, entered the United States for the first time. (Am. Petition for Writ of Habeas Corpus ("Petition") ¶ 42, Aug. 6, 2020, Docket No 4; Petition, Ex. A ("IJ Order") at 5, Aug. 6, 2020, Docket No. 4-2.) He was about twelve years old. (Petition ¶ 42.) In the last sixteen years, Petitioner has left the country just once; in August of 2010 he returned to Mexico briefly to attend his grandfather's funeral. (Id. ¶ 43.) On August 14, 2010, as Petitioner attempted to reenter the United States, he was apprehended by authorities. (Id.) Petitioner was ordered removed, andhis removal to Mexico was completed on August 15, 2010. (Id.) A few days later, Petitioner reentered the United States. (Id. ¶ 44.)

Petitioner now resides in Minnesota, where he has maintained employment in the construction and farming industries. (Id. ¶¶ 44-46.) Petitioner's mother and sisters also reside in Minnesota and are United States citizens. (Petition ¶ 44.) Petitioner's wife and two daughters, all of whom are United States citizens, reside in Kansas. (Id. ¶ 45; IJ Order at 4.)

In September 2019, Petitioner was arrested for fifth degree possession of a controlled substance. (Id. ¶ 53; Petition, Ex. C at 1, Aug. 6, 2020, Docket No. 4-4.) On September 12, 2019, a state court judge granted Petitioner's release on bond, and he was then taken into custody by Immigration and Customs Enforcement ("ICE"). (Id. ¶ 54.) On September 13, 2019, authorities from the Department of Homeland Security ("DHS") informed Petitioner that the agency intended to reinstate the August 14, 2010 order for his removal. (Id. ¶ 55; IJ Order at 2.)

Petitioner was referred to an asylum officer to assess whether he had reasonable fear of returning to Mexico. (Petition ¶ 55.) On October 2, 2019, the asylum officer determined that Petitioner had failed to establish a reasonable possibility of persecution or torture in Mexico; Petitioner requested the case be referred to an Immigration Judge ("IJ") for review of that determination. (Id. ¶ 56.)

II. IMMIGRATION COURT PROCEEDINGS

On March 6, 2020, following a hearing on the merits, the IJ vacated the asylum officer's determination. (See IJ Order at 16, 21.) The IJ found that Petitioner had credibly demonstrated past persecution by people who had perceived Petitioner to be homosexual and others who had made threats on his life and actually harmed members of his family. (Id. at 4-7.) The IJ concluded that Petitioner was accordingly entitled to a presumption that his life or freedom would be threatened in the future if he were removed to Mexico. (Id. at 11-12.)

The IJ then found that DHS had not demonstrated by a preponderance of the evidence that a fundamental change in circumstances rebutted the presumption of future threats to Petitioner, determining that numerous specific threats to Petitioner's life or freedom were likely to arise if he were removed to Mexico. (Id. at 12-16.) Accordingly, the IJ granted Petitioner's application for withholding of removal under § 241(b)(3) of the Immigration and Naturalization Act ("INA"), which prohibits the United States from removing a non-citizen to a country where that person's life or freedom would be threated because of their race, religion, nationality, membership in a particular social group, or political opinion. (Id. at 21; 8 U.S.C. § 1231(b)(3).) The IJ also found that Petitioner suffered past harm amounting to torture and would more likely than not face torture again if removed to Mexico, and that Petitioner had demonstrated that the Mexican authorities were unable or unwilling to control those who threatened him. (IJOrder at 16-21.) The IJ therefore granted Petitioner's application for withholding of removal under Article 3 of the Convention Against Torture ("CAT"). (Id. at 21.)

The United States' timely appeal of the IJ decision to the Board of Immigration Appeals ("BIA") is pending. (Decl. Eric J. O'Denius ¶ 11, Aug. 27, 2020, Docket No. 7.) On March 27, 2020, ICE conducted a custody review and ordered that Petitioner remain in detention because Petitioner posed a significant flight risk pending removal. (Id. ¶ 12; Petition, Ex. F. at 1, Aug. 6, 2020, Docket No. 4-7.)

II. STATUTORY & LEGAL BACKGROUND

Pursuant to the IJ Order, Petitioner is currently detained during what are known as "withholding-only" removal proceedings: his 2010 removal order has been reinstated, but he cannot be removed to the country designated on his removal order because an IJ has found that he qualifies for withholding of removal. To qualify for withholding of removal under the INA, an applicant must show a "clear probability that his life or freedom would be threatened in [the potential country of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion." Mendez-Gomez v. Barr, 928 F.3d 728, 733 (8^th Cir. 2019) (quoting 8 U.S.C. § 1231(b)(3)(A)) (citation omitted) (alteration in original). Withholding is also available under CAT if the applicant demonstrates that "it is more likely than not that [he] would be tortured if removed to the proposed country of removal" and, if the alleged torturers are private actors, that thegovernmental authorities in the designated country of removal are "unable or unwilling to control those actors." Id. (quotation omitted).

In January 2021, the Supreme Court heard arguments in Pham v. Guzman Chavez, which raises the issue of whether noncitizens in withholding-only proceedings are detained pursuant to 8 U.S.C. § 1226, which governs immigration detention prior to the issuance of a final order of removal and includes a bond hearing provision, or 8 U.S.C. § 1231, which governs detention during the removal period after a final order issues and does not explicitly provide for a bond hearing. Pham v. Guzman Chavez, U.S. Docket No. 19-891 (argued Jan. 11, 2021). The petitioners in Guzman Chavez are, as here, subject to reinstated removal orders, but are awaiting final determinations on proceedings for withholding of removal based upon a reasonable fear of persecution or torture in the countries designated in their removal orders. See Guzman Chavez v. Hott, 940 F.3d 867, 869 (4^th Cir. 2019), cert. granted sub nom. Albence v. Guzman Chavez, 141 S. Ct. 107 (2020).

In its decision, the Fourth Circuit held that § 1226 governs withholding-only detention, finding that § 1226 authorizes detention "pending a decision on whether the alien is to be removed, 8 U.S.C. § 1226(a) (emphasis added), invoking the practical question of whether the government has the authority to execute a removal." Guzman Chavez, 940 F.3d at 876. The court found that § 1231, on the other hand, applies only when a petitioner is both removable legally and practically, and is triggered "not when analien is ordered removed . . . but only when the removal period begins[,]" which does not occur "until the government has the actual legal authority to remove a noncitizen from the country." Id. (quotations omitted). Because the government lacks the legal authority to remove detainees whose petitions for withholding of removal are pending or granted, the court reasoned that their detention is governed by § 1226, not § 1231. Id. at 878, 882.

The Fourth Circuit decision deepened a circuit split that the Supreme Court's pending decision is expected to resolve. The Second Circuit has also held that § 1226 governs withholding-only proceedings. See Guerra v. Shanahan, 831 F.3d 59, 64 (2d Cir. 2016) ("[T]he language and structure of the statutes dictate the conclusion that [Petitioner's] detention during the pendency of his withholding-only proceedings is detention pursuant to 8 U.S.C. § 1226(a).") However, the Third, Sixth, and Ninth Circuits have held that § 1231 governs because the reinstated...