Vargas v. Wolf

GRISELDA NEGRETE VARGAS, Petitioner, v. CHAD WOLF, Acting Secretary of the U.S. Department of Homeland Security, et al., Respondents.

Case No. 2:19-cv-02135-KJD-DJA

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

April 21, 2020

ORDER

Petitioner Griselda Negrete Vargas, a counseled immigration detainee, has filed an Amended Petition for Writ of Habeas Corpus (ECF No. 6) ("Amended Petition") under 28 U.S.C. § 2241 seeking relief to remedy her alleged unlawful detention. Currently before the Court is Respondents' Motion to Dismiss (ECF No. 13) ("Dismissal Motion"). Petitioner has opposed (ECF No. 14), and Respondents have replied (ECF No. 15). Also before the Court is Petitioner's Emergency Motion for Temporary Restraining Order (ECF No. 16) ("TRO Motion"). Respondents have opposed (ECF No. 19), and Petitioner has replied (ECF No. 20). For the reasons discussed below, Respondents' Dismissal Motion is denied, Petitioner's TRO Motion is denied as moot, and Petitioner's Amended Petition is granted in part and denied in part.

BACKGROUND

Petitioner is a 36-year-old citizen of Mexico who is currently detained by the United States Immigration and Customs Enforcement ("ICE") division of the Department of Homeland Security ("DHS"). She last entered the United States in or about 2000. (Am. Petition at 4, ¶ 12.) She is married to a United States citizen, Gerardo Javier Zarate, and is the mother of four children who are also United States citizens. (Id.)

I. CRIMINAL PROCEEDINGS

On May 16, 2019, Petitioner was arrested and charged in the District of Nevada with two federal drug offenses. See USA v. Zarate, et al., 2:19-cr-00152-JAD-NJK. The criminal complaint alleged that, on May 7, 2019, Petitioner delivered 496.7 gross grams (approximately one pound) of crystal methamphetamine to a confidential source in exchange for $2,000.00. (Id., ECF No. 1 at 7-8, ¶ 17.¹) The confidential source asked for at least two pounds of crystal methamphetamine for the following week and Petitioner purportedly affirmed that the confidential source should be able to get whatever he/she requested. (Id.) The complaint was verified by a Special Agent of the Drug Enforcement Administration. (Id. at 11.) The following month, a federal grand jury returned an indictment charging Petitioner with (1) conspiracy to distribute a controlled substance under 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii), and (2) possession of a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). (Id., ECF No. 22.) Trial is currently set for May 5, 2020. (Id., ECF No. 68.)

The government did not seek detention during Petitioner's initial appearance and the magistrate judge released her on a personal recognizance bond. (Id., ECF No. 5.) However, ICE took physical custody of Petitioner and detained her at the Nevada Southern Detention Center ("NSDC") in Pahrump, Nevada. (Am. Petition at 2, ¶ 3.)

II. IMMIGRATION PROCEEDINGS

Days after her initial appearance, DHS initiated removal proceedings against Petitioner by filing a Notice to Appear charging her as removable under Section 212(a)(6)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. (Id. at 5, ¶ 17.) With the help of counsel, Petitioner filed a bond request in the immigration court. (Id. at ¶ 18.) She provided an immigration judge ("IJ") with affidavits from her family members, letters of support from her close friends and children's teachers, letters demonstrating her good moral character and community involvement, evidence of her length of residence in the United States, her marriage certificate, her children's U.S. birth certificates, medical and school records for her children, and a copy of the docket in her federal criminal case showing that the magistrate judge released her and her husband on their own recognizance. (ECF Nos. 6-1, 6-2, 6-3, 6-4, 6-5, 6-6, 6-7, 6-8, 6-9, 6-10, 6-11, 6-12.)

The IJ held a hearing and issued a bond memorandum denying Petitioner's bond requestpursuant to INA § 236(a), 8 U.S.C. § 1226(a). (ECF No. 13-3.) The IJ noted that she had "broad discretion" in deciding what factors to consider in bond determinations, including a non-citizen's "criminal record, extensiveness of criminal activity, and whether he or she is a danger to the community." (Id. at 2 (citing Matter of Guerra, 24 I&N Dec. 37, 40 (B.I.A. 2006)).) The bond memorandum relies solely on the allegations and charges against Petitioner in the federal criminal case. (Id.) The IJ acknowledged that Petitioner had not been convicted and she was not the sole actor because the complaint also implicated her husband. (Id.) Nevertheless, "given the large amounts of narcotics involved as well as the clear depiction of [Petitioner's] role," the IJ found that "she had not met her burden of proving that she is not a danger to the community," and denied the bond request. (Id. at 2-3 (emphasis added).)

Petitioner appealed the bond denial to the Board of Immigration of Appeals ("BIA"). (Am. Pet. at 6, ¶ 18.) On November 26, 2019, the BIA dismissed Petitioner's appeal. (ECF No. 13-5.) In relevant part, the BIA's decision states:

An alien in a custody determination under [INA §] 236(a)[, 8 U.S.C. § 1226(a),] must establish to the satisfaction of the Immigration Judge and this Board that he or she does not present a danger to persons or property, is not a threat to the national security. and does not pose a risk of flight. See Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999)....

The record reflects that in May 2019, [Petitioner] was arrested and charged with Conspiracy to Distribute a Controlled Substance. Possession of a Controlled Substance with Intent to Distribute, and Distribution of a Controlled Substance (IJ at 1 ). Those charges were pending at the time of the Immigration Judge's decision. Given the seriousness and recency of the criminal charges, we agree with the Immigration Judge that [Petitioner] poses a danger to persons in her community. We are not persuaded that the Immigration Judge erred in considering evidence regarding [Petitioner's] arrests that have not yet resulted in convictions. Immigration Judges are not limited to considering only criminal convictions in assessing whether an alien is a danger to the community. Matter of Guerra, 24 I&N Dec. 37. 40-41 (BIA 2006). Moreover, an Immigration Judge may consider any evidence in the record that is probative and specific. Id.

To the extent that the respondent argues on appeal that a United States District Court decision supports her argument that it is a violation of her due process rights to consider a pending criminal charge as a sole basis to determine that she is a danger to the community, we note that we are not bound by the decisions of the United States District Courts. See Maller of K-S-, 20 I&N Dec. 715 (BIA 1993).

(Id. at 4.)

During the pendency of the BIA appeal, Petitioner also sought cancelation of removal. (Am. Pet. at 6, ¶ 18.) In March 2020, she filed a motion for bond based on change ofcircumstances, including the global COVID-19 pandemic and its spread and risk in ICE confinement. (ECF No. 19-2.) Since detained at NSDC, Petitioner has made at least 13 sick call requests for illnesses including dizzy spells causing loss of consciousness, severe headaches, ringing and pain in her ears, frequent stomach pain and vomiting. (ECF Nos. 16-1, 16-2.) Petitioner asserted that ICE detainees have an increased risk of contracting COVID-19, and her personal risk was higher because she was not receiving adequate medical care. (ECF No. 19-2.)

On March 31, 2020, the IJ held a merits hearing on Petitioner's request for cancelation of removal and also addressed the new bond motion. (ECF No. 19-3.) Petitioner claims the hearing could not be completed due to repeated problems with the telephonic interpreter and the call from DHS being dropped. (ECF No. 16 at 9-10.) Counsel's affidavit further alleges that Petitioner fainted prior to the merits hearing, woke up to oxygen being administered, coughed throughout the hearing, told counsel she did not feel well, and said she was afraid of dying if she contracted COVID-19. (ECF No. 16-3.) Ultimately, the IJ denied Petitioner's request for cancelation of removal, issued a removal order, and denied the new bond motion finding that no change in circumstances was shown. (ECF Nos. 19-3, 19-4.) Petitioner intends to challenge the denial of her request for cancellation of removal.

III. FEDERAL HABEAS PROCEEDINGS

Petitioner commenced this habeas proceeding in December 2019 (ECF No. 1), and filed the Amended Petition (ECF No. 6) shortly thereafter. She presents two grounds for relief under the Fifth Amendment's Due Process Clause: (1) her bond proceedings and appeal were constitutionally deficient because the IJ and BIA applied the wrong legal standard and imposed the burden of proof on her rather than the government (Id. at 6-14, ¶¶ 23-46), and (2) her prolonged civil detention without constitutionally adequate bond proceedings violates her core liberty interest in freedom from bodily restraint (Id. at 14-18, ¶¶ 47-64). Petitioner further contends that she has been prejudiced by the due process violations because the IJ relied solely on legally insufficient evidence—her pending federal drug charges—to determine that she is a danger to the community. In her request for relief, she asks this Court to, among other things, grant a writ of habeas corpus directing Respondents to immediately release Petitioner from custody or order anew bond hearing in which the government bears the burden of proof to show, by clear and convincing evidence, that she is presently dangerous or a flight risk. (Id. at 18-19.)

Respondents filed the Dismissal Motion in January 2020. After the Dismissal Motion was fully briefed, Petitioner filed the TRO Motion on April 6, 2020. She asks the Court to issue a TRO ordering Respondents to immediately release her from custody, or in the alternative, ordering a bond hearing...