Urbina v. Barr

ELI SALVADOR MINAS URBINA, Petitioner, v. WILLIAM BARR, in his official capacity as Attorney General of the United States, et al., Respondents.

1:20-cv-325 (LMB/MSN)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

June 4, 2020

MEMORANDUM OPINION

Petitioner Eli Salvador Minas Urbina ("petitioner" or "Urbina") has filed a Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2241, in which he alleges that he is being unlawfully detained by United States Immigration and Customs Enforcement ("ICE"). In response to the Petition, respondents William Barr, Chad Wolf, and Kim Zanotti, who have been named in their respective capacities as Attorney General of the United States, Secretary of the Department of Homeland Security ("DHS"), and Director of ICE's Washington Field Office (collectively, "respondents"),¹ have filed a Motion for Summary Judgment ("Motion"). Both the Petition and the Motion are now before the Court. For the following reasons, Urbina's Petition will be granted in part and dismissed in part, and respondents' Motion will be granted in part and denied in part.

I. BACKGROUND

Urbina is a 29 year-old native and citizen of Guatemala who first entered the United States on January 23, 1997, when he was six years old, as an asylee. [Dkt 7-1 ¶ 5].² In 1998, Urbina was granted lawful permanent resident status as of his date of entry. Id. ¶ 6. Almost two decades later, in 2015, Urbina was charged with and pleaded guilty to five counts of statutory burglary, in violation of Va. Code Ann. § 18.2-91, for which he was sentenced to 10 years' imprisonment with nine years suspended as to each count, all five sentences to run concurrently. Id. ¶¶ 7-8.

On May 24, 2017, following his release from state custody, ICE arrested Urbina pursuant to an administrative arrest warrant and issued him a Notice to Appear. Id. ¶ 9. The Notice to Appear charged Urbina with being removable from the United States under both 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude, and 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony. Id. Both charges of removability were based on Urbina's 2015 statutory burglary convictions. Id.

On June 28, 2017, Urbina appeared with counsel before an immigration judge ("IJ") for his first master calendar hearing, at which he denied both charges of removability. Id. ¶ 11. Following the hearing, Urbina filed a motion to terminate his removal proceedings, in which he contested the charges. Id. ¶ 12. On August 16, 2017, the IJ sustained the charges but granted Urbina leave to file any applications for relief from removal. Id. ¶ 14. Urbina appealed the IJ'sdecision sustaining the charges of removability to the Board of Immigration Appeals ("BIA"). Id. ¶ 16. The BIA dismissed the appeal as impermissibly interlocutory. Id. ¶ 18.

On October 10, 2017, Urbina filed a Form I-130 visa petition with the United States Citizenship and Immigration Services ("USCIS") in an effort to obtain re-adjustment of his immigration status through his mother, who is also a lawful permanent resident. Id. ¶¶ 15, 17. On November 22, 2017, Urbina's visa petition was granted. Id. ¶ 20.

On November 28, 2017, at his sixth master calendar hearing, Urbina informed the IJ that his visa petition had been granted, which would permit the IJ to adjudicate the re-adjustment of his status. Id. ¶ 21. Urbina, who had been in custody throughout these proceedings, also moved for a bond re-determination, explaining that he had been detained for approximately six months at that point. Id. The IJ denied Urbina's motion for an individualized bond determination, finding that because the charges of removability had been sustained Urbina was subject to mandatory detention under 8 U.S.C. § 1226(c) based on his statutory burglary convictions. Id. Urbina appealed the IJ's decision denying bond to the BIA. Id. ¶ 22.

On January 22, 2018, while his appeal of the IJ's bond decision was pending, Urbina appeared with counsel before the IJ for his first individual merits hearing on the re-adjustment of his status. Id. ¶ 23. During preliminary matters, it was determined that Urbina would have to wait approximately seven years before receiving a visa. Id. As a result, the IJ held that Urbina's status could not be re-adjusted, and ordered him removed to Guatemala. Id. Urbina appealed that order to the BIA, primarily challenging both findings of removability. Id. ¶ 25.

On April 17, 2018, while both of Urbina's appeals were pending before the BIA, the Supreme Court decided Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which it held that the residual clause of the federal criminal code's definition of "crime of violence," as incorporatedinto the Immigration and Nationality Act's definition of "aggravated felony," was unconstitutionally vague. Id. This decision invalidated the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(iii) because Urbina's statutory burglary convictions, on which that charge had been premised, no longer qualified as aggravated felonies under the now-unconstitutional residual clause. [Dkt. 7-1 ¶ 30].

On August 18, 2018, DHS filed a motion with the BIA to remand all of Urbina's appeals to the IJ. Id. ¶ 31. In that motion, DHS conceded that Urbina was no longer removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and explained that, as a result, Urbina was eligible for other forms of relief which had not previously been available to him, such as cancellation of removal. Id. Urbina opposed DHS's motion, and requested that the BIA rule on the remaining charge of removability under 8 U.S.C. § 1227(a)(2)(A)(ii). Id. ¶ 32.

On October 30, 2018, the BIA issued a decision as to both charges of removability. Id. ¶ 33. With regard to Urbina's removability under 8 U.S.C. § 1227(a)(2)(A)(iii), the BIA held that the charge could not be sustained in light of the Dimaya decision. Id. With regard to Urbina's removability under 8 U.S.C. § 1227(a)(2)(A)(ii), the BIA held that the charge could not be sustained because his statutory burglary convictions did not qualify as categorical crimes involving moral turpitude. Id. Accordingly, the BIA vacated the IJ's decision, terminated Urbina's removal proceedings, and dismissed his bond appeal as moot. Id. On November 2, 2018, Urbina was released from ICE custody. Id. ¶¶ 32, 34.

On November 29, 2018, DHS filed a motion to reconsider, asserting that the BIA erred in holding that Urbina's statutory burglary convictions were not categorical crimes involving moral turpitude. Id. ¶ 35. Specifically, DHS argued that the BIA failed to consider whether the underlying crime involved in each conviction—i.e., larceny, which was the crime which Urbinaintended to commit inside the burgled dwellings—qualified as a categorical crime involving moral turpitude. Id. ¶¶ 7, 35. Over a year later, on January 2, 2020, the BIA issued a decision granting DHS's motion in which it held that Urbina's statutory burglary convictions qualified as categorical crimes involving moral turpitude, making him removable under 8 U.S.C. § 1227(a)(2)(A)(ii). Id. ¶ 36. Accordingly, the BIA reinstated Urbina's removal proceedings and remanded them to the IJ to allow Urbina to seek relief from removal. Id.

On February 24, 2020, ICE sent Urbina a letter requesting that he appear at the ICE office in Fairfax, Virginia the following month. Id. ¶ 37. On February 26, 2020, Urbina appeared with counsel for his first master calendar hearing following the BIA's remand. Id. ¶ 38. At the hearing, Urbina indicated that he wanted to contest his removability. Id. ¶ 38. He was not detained after the hearing. Id. On March 16, 2020, Urbina appeared at the ICE office in Fairfax, Virginia as instructed and was taken into custody. Id. ¶ 39. During the 15 months between his release from and return to ICE custody, all indications are that Urbina was "a good member of society" who "worked, cared for his children and parents, attended church, reported to probation regularly, and paid restitution monthly." [Dkt. 1 ¶ 16].

On March 18, 2020, Urbina filed a motion before the IJ in which he requested, among other relief, a bond hearing and reconsideration of removability. [Dkt. 7-1 ¶ 40]. He also requested cancellation of removal. Id. DHS responded that Urbina's bond and removability were controlled by the BIA's decision granting DHS's motion for reconsideration, and requested that the case be set for an individual merits hearing solely to consider Urbina's request for cancellation of removal. Id. Urbina has remained in ICE custody since March 16, 2020. Id. ¶ 41.

On March 25, 2020, Urbina filed the pending Petition, in which he alleges three "grounds" on which he is being unlawfully detained by ICE.³ [Dkt. 1 ¶¶ 24, 30, 52]. Specifically, he alleges that "respondents lack a lawful reason to detain [him]" and that "respondents violated [his] Fifth Amendment right[s]" to substantive and procedural "due process." Id. On their part, respondents have filed the pending Motion for Summary Judgment. [Dkt. 6]. Both pleadings are before the Court, and because oral argument will not assist in the decisional process, they will be resolved on the papers submitted.

II. DISCUSSION

Urbina's Petition essentially raises two questions: (1) whether he is removable under 8 U.S.C. § 1227(a)(2)(A)(ii), and (2) whether his detention by ICE without a bond hearing violates his due process right to a bond hearing.⁴ Urbina argues that he is not removable under 8 U.S.C. § 1227(a)(2)(A)(ii) because his statutory burglary convictions are not categorical crimes involving moral turpitude, and that his detention without a bond hearing violates his due process rights because it is unreasonable under the five-factor analysis employed in Portillo v. Hott, 322 F. Supp. 3d 698 (E.D. Va. 2018).

Respondents argue that, pursuant to 8 U.S.C. § 1252(b)(9), the Court lacks jurisdiction to adjudicate Urbina's...