Miranda v. Barr

463 F.Supp.3d 632

Marvin DUBON MIRANDA, et al.

v.William P. BARR, et al.

Civil No. 20-1110

United States District Court, D. Maryland.

Signed May 29, 2020

Nicholas Taichi Steiner, Sonia Kumar, American Civil Liberties Union of Maryland, Baltimore, MD, Adina B. Appelbaum, Pro Hac Vice, Claudia R. Cubas, Jenny Kim, Pro Hac Vice, Melody Vidmar, Pro Hac Vice, Capital Area Immigrants' Rights (CAIR) Coalition, Saba Bireda, Pro Hac Vice, Sanford Heisler Sharp LLP, Washington, DC, Michael K.T. Tan, Pro Hac Vice, ACLU Immigrants' Rights Project, New York, NY, for Marvin Dubon Miranda, Ajibade Thompson Adegoke, Jose de la Cruz Espinoza.

Evelyn Lombardo Cusson, United States Attorney's Office, Baltimore, MD, for William P. Barr, Chad F. Wolf, Matthew T. Albence, James McHenry, Janean Ohin, William Delauter, Jack Kavanagh, Donna Bounds.

MEMORANDUM

Catherine C. Blake, United States District Judge

Immigration and Customs Enforcement ("ICE") detainees Marvin Dubon Miranda, Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza (the "lead plaintiffs"), filed a class action complaint and petition for writ of habeas corpus contesting the adequacy of the bond hearings that resulted in their detention. (ECF 1).¹ Now pending is the lead petitioners’ motion for a temporary restraining order ("TRO") and/or a preliminary injunction. (ECF 15). The motion is fully briefed, and no hearing is necessary. For the reasons explained below, the motion will be granted.

BACKGROUND

I. Statutory and regulatory framework

The lead plaintiffs and the members of the proposed class are detained under 8 U.S.C. § 1226(a), the provision of the Immigration and Nationality Act ("INA") that governs the arrest and detention of noncitizens pending a decision on removal. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 837, 200 L.Ed.2d 122 (2018). Section 1226(a) provides that:

On 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)^[2] and pending such decision, the Attorney General--

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

(2) may release the alien on--

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.

8 U.S.C. § 1226(a).

Pursuant to federal regulations, an ICE officer makes an initial custody determination upon arrest. See 8 C.F.R. § 236.1(c)(8). If the noncitizen can demonstrate that she is neither a flight risk nor poses a danger to the community, the ICE officer may release the noncitizen on bond or other conditions of release. Id. The noncitizen may later seek review of the initial bond determination by an Immigration Judge ("IJ") at a bond hearing. 8 C.F.R. § 1236.1(d)(1) ; accord Jennings, 138 S. Ct. at 847. Thereafter, the noncitizen may appeal the IJ's determination to the Board of Immigration Appeals ("BIA"). See 8 C.F.R. §§ 1236.1(d)(3), 1003.1(b)(7).

Neither § 1226(a) nor its implementing regulations specify who bears the burden of proof at bond hearings, but the BIA currently requires that the noncitizen "show to the satisfaction of the Immigration Judge that he or she merits release on bond." See In Re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006) ; accord Brito v. Barr , 395 F. Supp. 3d 135, 145 (D. Mass. 2019). Moreover, while § 1226(a) prescribes a minimum bond amount—$1,500—there is no explicit requirement either in the statute or the regulations that an IJ consider, when setting bond, a noncitizen's ability to pay. See, e.g., In re Castillo-Cajura , 2009 WL 3063742, at *1 (B.I.A. Sept. 10, 2009) (noting, in an unpublished opinion, that "an alien's ability to pay the bond amount is not a relevant bond determination factor").

II. Lead plaintiffs³

A. Marvin Dubon Miranda

Mr. Dubon Miranda is a 35-year old man from El Salvador who has been in the United States for over ten years. (Compl. ¶¶ 33, ECF 1). Prior to his detention, he resided in Baltimore City, Maryland, with his partner, who is dying of end-stage renal disease. (Compl. ¶¶ 6, 33). He is seeking withholding of removal and protection under the Convention Against Torture ("CAT") related to his resistance to MS-13 control of his community in El Salvador. (Id. ¶ 33). Mr. Dubon Miranda and his ex-wife co-parent their 13-year old son, who lives in Maryland with his mother. (Id. ¶¶ 33–34). Prior to his detention, Mr. Dubon Miranda worked as a construction worker to financially support himself, his partner, and his son. (Id. ¶ 37).

Mr. Dubon Miranda was taken into ICE custody on December 12, 2019, after being sentenced to 60 days incarceration for driving under the influence ("DUI"). (Compl. ¶ 33). He had previously been convicted of a DUI in 2017 and states that he struggles with alcohol dependence. (Id. ¶ 35). On February 26, 2020, Mr. Dubon Miranda had a bond hearing in Baltimore Immigration Court in front of IJ Elizabeth Kessler. (Id. ¶ 38). He was represented by counsel and presented evidence in support of his request for release on bond. (Id. ). Upon finding that Mr. Dubon Miranda had failed to prove he was not a danger to the community, however, the IJ denied bond. (Id. ¶ 39).

At the time the Complaint was filed, Mr. Dubon Miranda was in ICE custody at the Howard County Detention Center ("HCDC"). (Id. ¶ 6). On May 18, 2020, however, Mr. Dubon Miranda's application for withholding of removal was granted, and he was released from ICE custody. (See ECF 20).⁴

B. Ajibade Thompson Adegoke

Mr. Thompson is a 42-year old man from Nigeria who came to the United States in 2017 on a tourist visa. (Compl. ¶ 41). Prior to his detention, he worked as a driver for a Baltimore company, and had no criminal record except for traffic violations. (Id. ¶¶ 43–44). He is seeking asylum on the basis of threats to him and his family by members of a political party in Nigeria. (Id. ¶ 41). Mr. Thompson's wife and five children remain in Nigeria, and due to his detention, Mr. Thompson was unable to contact them to determine whether they are safe. (Id. ). Mr. Thompson has strong ties to the Jehovah's Witness community in Baltimore. (Id. ).

Mr. Thompson was charged with theft in October 2019, which he contends was based on a supermarket employee's mistaken belief that Mr. Thompson was stealing from the store. (Compl. ¶ 42). The police issued Mr. Thompson a citation instructing him to appear in court at a later date. (Id. ). Mr. Thompson inadvertently missed his court date, but, upon realizing his mistake, he went to the courthouse on October 19, 2019, and turned himself in. (Id. ). The theft charge was dropped on November 15, 2019, but Mr. Thompson was held until November 18, 2019, when he was taken into ICE custody. (Id. ).

On December 2, 2019, Mr. Thompson had a bond hearing at the Baltimore Immigration Court before IJ Kessler. (Compl. ¶ 45). He appeared pro se via video teleconferencing, did not know he would be having a bond hearing that day, and did not know what was expected of him during the hearing. (Id. ). The IJ did not ask him what his financial situation was, nor did she ask Mr. Thompson to tell the court why he was neither a danger nor a flight risk. (Id. ). The IJ ultimately set bond at $15,000, an amount Mr. Thompson was unable to pay. (Id. ). He later requested a bond reduction to $5,000, to which the court did not respond. (Id. ¶ 46).

At the time the Complaint was filed, Mr. Thompson was detained at the Worcester County Detention Center. (Id. ¶ 7). On May 7, 2020, however, Mr. Thompson's application for asylum was granted and he was released. (See ECF 18).

C. Jose de la Cruz Espinoza

Mr. de la Cruz Espinoza is a 25-year old man from Mexico who came to the United States in 2008, when he was 14 years old. (Compl. ¶ 49). Prior to his detention, Mr. de la Cruz Espinoza resided in Georgetown, Delaware, with his wife, with whom he runs a landscaping company, and their four U.S. citizen children. (Id. ). Mr. de la Cruz Espinoza is currently seeking Cancellation of Removal relief ("42B Cancellation") and asylum. (Id. ).

Mr. de la Cruz Espinoza was taken into ICE custody as a result of pending criminal charges for two counts of Second Degree Assault and Malicious Destruction of Property Valued < $1,000, which arose from a dispute between Mr. de la Cruz Espinoza and his brother. (Compl. ¶ 50).⁵ After Mr. de la Cruz Espinoza's daughter called the police, Mr. de la Cruz Espinoza was arrested, and his criminal bond initially set at $1,500. (Id. ). At a bail review hearing, however, the judge ordered Mr. de la Cruz Espinoza released on his own recognizance. (Id. ). Before Mr. de la Cruz Espinoza could be released, ICE took Mr. de la Cruz Espinoza into custody and brought him to HCDC. (Id. )

On February 19, 2020, Mr. de la Cruz Espinoza had a bond hearing in the Baltimore Immigration Court in front of IJ Kessler. (Compl. ¶ 54). He was represented by counsel and requested bond be set at $5,000. (Id. ). According to the Complaint, Mr. de la Cruz Espinoza's bond hearing lasted approximately five to ten minutes, he did not know it was his burden to prove that he is not a danger to the community nor a flight risk, and he had trouble understanding what was happening due to a language barrier. (Id. ¶¶ 54–55). The IJ set bond at $20,000, which Mr. de la Cruz Espinoza asserts is too high for him or his family to pay. (Id. ¶ 55).

On March 4, 2020, Mr. de la Cruz Espinoza had another hearing before IJ Kessler, at which he appeared pro se. (Compl. ¶ 56). Mr. de la Cruz Espinoza asked the IJ to reconsider bond due to his inability to pay. (Id. ). The IJ denied the request, stating she could only...