Opinion
Case No. EDCV 19-820-VAP (KK)
10-18-2019
AMMAR YOUSSEF HACHICHO, Petitioner, v. KEVIN K. MCALEENAN, ET AL., Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Virginia A. Phillips, Chief United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Petitioner Ammar Youssef Hachicho ("Petitioner") has filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody ("Petition") pursuant to 28 U.S.C. § 2241 ("Section 2241") challenging his detention in United States Immigration and Customs Enforcement ("ICE") custody for over two years. As discussed below, the Court recommends denying the Petition because Petitioner fails to demonstrate his continued detention violates his constitutional due process rights.
II.
BACKGROUND
A. PETITIONER'S ICE DETENTION AND BOND HEARINGS
Petitioner is a citizen of Syria and was admitted to the United States on a K-1 fiance immigration visa on October 2, 2004. ECF Docket No. ("Dkt.") 1, Pet. at 6. On October 13, 2006, Petitioner's status was adjusted to that of a conditional permanent resident. Id. at 7.
On July 30, 2010, Petitioner lost his conditional permanent resident status after United States Citizenship and Immigration Services denied his petition to Remove Conditions on Residence. Id. Petitioner was thereafter placed in removal proceedings and issued a Notice to Appear as a resident whose permanent status has terminated pursuant to Section 237(a)(1)(D)(i) of the Immigration and Nationality Act ("INA"). Id. On September 17, 2013, however, Petitioner's removal proceedings were administratively closed "at the joint request of the parties" due to Petitioner's pending Form I-821 application for Temporary Protected Status. Id.; Dkt. 7-1, Declaration of Michael A. Jimeno ("Jimeno Decl.") at 2, 5, Ex. A (November 16, 2017 Oral Decision of the Immigration Judge).
It is unclear whether Temporary Protective Status was actually granted. Dkt. 7-1, Jimeno Decl. at 2, 5, Ex. A (November 16, 2017 Oral Decision of the Immigration Judge) (Immigration Judge noted in his removal decision that "[c]ounsel for the respondent wrote in a brief that respondent was granted [Temporary Protective Status], but there was never any evidence in the record that that occurred.").
On June 27, 2017, Petitioner was convicted of assault likely to cause great bodily injury in violation of Section 245(a)(4) of the California Penal Code. Pet. at 7. Petitioner was sentenced to five years of probation and given total credit for 232 days in county jail. Id. On June 28, 2017, Petitioner was transferred into ICE custody and detained at the Adelanto Detention Facility ("Adelanto"). Id.; Dkt. 7, Answer at 3. /// ///
On August 9, 2017, Petitioner appeared at his first bond hearing and was denied bond based on the Immigration Judge's finding that Petitioner presented a danger to the community. Pet. at 7; Jimeno Decl., ¶ 13.
On November 16, 2017, Petitioner was ordered removed to Syria. Pet. at 9; Answer at 3; Dkt. 8-1 at 25-42, Traverse Exhibits. On December 18, 2017, Petitioner appealed the order of removal to the Board of Immigration Appeals ("BIA"). Jimeno Decl., ¶ 15.
On January 18, 2018, Petitioner appeared at his second bond hearing and was denied bond based on the Immigration Judge's finding he presented a danger to the community. Id., ¶ 16.
On May 16, 2018, the BIA denied Petitioner's removal appeal and affirmed the order of removal. Id., ¶ 17. On June 13, 2018, Petitioner filed a petition for review of his removal decision and a motion for a stay of removal in the Ninth Circuit Court of Appeals. Id., ¶ 18. On November 8, 2018, the Ninth Circuit granted the stay of removal. Id., ¶ 19. Review of Petitioner's order of removal is currently pending before the Ninth Circuit. Id.
On December 7, 2018, Petitioner appeared at a third bond hearing pursuant to Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). Pet. at 11. Petitioner was denied bond based on the Immigration Judge's ("IJ") finding he presented a "danger to the community" and an "extreme flight risk." Jimeno Decl., ¶ 20. On December 13, 2018, Petitioner appealed the decision denying his request for bond to the BIA. Id., ¶ 21. On April 3, 2019 the BIA denied the bond appeal. Jimeno Decl., ¶¶ 21, 22; Dkt. 8-1 at 82-84. Petitioner, thus, remains in ICE custody in Adelanto. Pet. at 2. /// ///
In Casas-Castrillon, the Ninth Circuit held that noncitizens facing prolonged detention while their petitions for review of their removal orders are pending are entitled to a bond hearing before a neutral immigration judge. Casas-Castrillon, 535 F.3d at 950.
B. PETITIONER'S HABEAS CLAIMS
On May 1, 2019, Petitioner filed the instant Petition challenging his detention of over two years. Pet. at 26-31.
In Claim One, Petitioner argues he was deprived of due process because the IJ failed to hold the Government to the heightened standard of demonstrating by "clear and convincing evidence" that Petitioner was a flight risk or danger to the community. Id. at 26.
In Claim Two, Petitioner argues his continued detention "deprives Petitioner of his liberty without narrowly tailoring that deprivation to serve a compelling government interest" in violation of Petitioner's substantive due process rights. Id. at 30. Petitioner also argues the IJ "failed to adequately consider whether alternatives to detention" could protect the community from Petitioner's danger and flight risk. Id.
On June 5, 2019, Respondents Kevin K. Mcaleenan, Acting Secretary of the Department of Homeland Security; William Barr, Attorney General of the United States; Ronald D. Vitiello, Acting Director of U.S. Immigration and Customs Enforcement; Thomas P. Giles, Acting Los Angeles Field Office Director, ICE; Marisa Flores, Deputy Field Office Director, Detention and Removal Management, ICE; Gabriel Valdez, Assistant Field Office Director, Adelanto Detention Facility, ICE; and James Janecka, Warden of the Adelanto Detention Facility ("Respondents") filed an Answer. Dkt. 7, Answer. Respondents contend Petitioner's detention is permissible during the remainder of his removal proceedings, and that Petitioner "has not established his entitlement to release on bond" because he has not shown he is not a danger to the community. Id. at 2.
Respondents argue the only properly named respondent is James Janecka, Warden of the Adelanto Detention Facility. Answer at 8. Generally, in Section 2241 actions challenging physical confinement, "the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Rumsfeld v. Padilla, 542 U.S. 426, 427, 124 S. Ct. 2711, 2713, 159 L. Ed. 2d 513 (2004) (citing 28 U.S.C. §§ 2242, 2243); Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (Section 2241 petitioner properly named respondent as "the warden of the institution where he was imprisoned"). With respect to immigration detainees, however, the Ninth Circuit has not ruled on whether proper respondents may also include the Attorney General and the Department of Homeland Security ("DHS") Secretary. See Pham Huu Duc v. United States, No. CV 14-1273 SS, 2014 WL 4273252, at *1, n.1 (C.D. Cal. Aug. 28, 2014) (discussing Ninth Circuit cases regarding proper respondent in habeas actions involving immigration detainees). Hence, because the Court finds the Petition should be denied on the merits, the Court declines to address Respondents' argument regarding proper respondents. See Ramirez-Albarracin v. Holder, No. 14-CV-02133-JSC, 2014 WL 4639934, at *1, n. 1 (N.D. Cal. Sept. 17, 2014), aff'd sub nom. Ramirez-Albarracin v. Lynch, 616 F. App'x 315 (9th Cir. 2015) (declining to reach the issue of proper respondents after dismissing for lack of jurisdiction).
Respondents also argue the REAL ID Act strips the Court of jurisdiction over the "portion of the Petition that seeks relief from removal." Answer at 7. This argument is meritless because Petitioner is not challenging his removal order. Additionally, Respondents argue that because Petitioner has "been afforded multiple bond hearings," his claim of unlawful detention should be dismissed as moot. Id. at 7. This argument is also unavailing, however, because Petitioner challenges alleged constitutional violations during those bond hearings.
On June 19, 2019, Petitioner filed a Traverse. Dkt. 8, Traverse.
On August 12, 2019, the Court issued a Report and Recommendation recommending that the Petition be denied. Dkt. 10. On September 12, 2019, Petitioner filed Objections to the original Report and Recommendation. Dkt. 12. On September 26, 2019, Respondents filed a Response to Petitioner's Objections. Dkt. 13. The Court herein issues a Final Report and Recommendation addressing Petitioner's Objections in Section III(B)(4) and footnotes 5 and 6.
The matter thus stands submitted and ready for decision.
III.
DISCUSSION
A. APPLICABLE LAW
1. Habeas Jurisdiction
Pursuant to 42 U.S.C. § 2241, habeas corpus review is available to persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. Although district courts lack jurisdiction to reconsider a noncitizen's removal order, they may review constitutional challenges to detention by way of a noncitizen's "collateral legal challenge[] to the Attorney General's detention authority... through a petition for habeas corpus." Casas-Castrillon, 535 F.3d at 946 (citing Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (holding "the jurisdiction-stripping provision [of the REAL ID Act] does not apply to federal habeas corpus petitions that do not involve final orders of removal").
While district courts may review detention determinations for constitutional violations and legal error, discretionary determinations to detain a noncitizen are not cognizable. See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (citing Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir.2002)); see also 8 U.S.C. § 1226(e) (providing "[n]o court may set aside any action or decision . . . under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole."). District courts may, however, address questions "involving an application of law to undisputed fact" or "mixed questions of law and fact." Ramadan v. Gonzales, 479 F.3d 646, 652 (9th Cir. 2007).
Claims of due process violations in the course of bond proceedings fall within the Court's habeas jurisdiction. See Lertjanthuk v. Sec'y of Homeland Sec., No. EDCV 16-0511-CJC (KES), 2016 WL 7115868, at *5 (C.D. Cal. Oct. 4, 2016), report and recommendation adopted, 2016 WL 7116240 (C.D. Cal. Dec. 6, 2016). Generally, due process requires "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation omitted). "Among other protections, the right to due process encompasses a right to a full and fair hearing[,] the right to an impartial adjudicator[,] and the evaluation of each case on its own merits." Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001).
Ultimately, "[m]ounting a successful due process challenge to the Executive Branch's exercise of discretion is a difficult undertaking." Mondragón v. Holder, 706 F.3d 535, 541 (4th Cir. 2013). Due process is violated if the decision maker did not actually reach a decision by weighing the evidence and exercising discretion, but instead relied on a random or arbitrary mechanism. See Lertjanthuk, 2016 WL 7115868, at *5 (citing Mondragon, 706 F.3d at 541 (internal citations omitted)). "In contrast, decision-making that fails to consider relevant factors, or assigns the wrong weight to relevant factors, is, at worst, an abuse of discretion not reviewable by a district court in habeas matters." Lertjanthuk, 2016 WL 7115868, at *5 (citing Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir. 2011)).
2. Statutory Framework of Immigration Law
The INA governs the civil detention of noncitizens pending removal. Under Section 1226(a) of the INA ("Section 1226(a)"), the Attorney General is authorized to detain noncitizens before a removal order becomes final ("pre-order"), while Section 1231 of the INA applies to noncitizens who have received a final removal order ("post-order"). 8 U.S.C. §§ 1226(a), 1231. If a post-order noncitizen petitions the Ninth Circuit for review and is granted a stay of removal, the noncitizen's detention reverts to the pre-order framework of Section 1226(a). See Lertjanthuk, 2016 WL 7115868, at *5 (citing Casas-Castrillon, 535 F.3d at 947).
Under Section 1226(a), the Attorney General may (1) detain the noncitizen without bond, or (2) release the noncitizen on bond of at least $1,500 or conditional parole. 8 U.S.C. §§ 1226(a). The decision to detain or release the noncitizen on bond or parole is discretionary under Section 1226(a). Id.; see also 8 C.F.R. §§ 1003.19, 1236.1 (2006). Noncitizens in prolonged detention pending judicial review of their final order of removal must receive an "individualized determination of the necessity of detention before a neutral decision maker, such as an immigration judge." Casas-Castrillon, 535 F.3d at 950.
In bond hearings, due process requires the Government to "prove by clear and convincing evidence that a noncitizen is a flight risk or a danger to the community to justify denial of bond." Singh, 638 F.3d at 1196. The "clear and convincing" standard is met when the factual contention is "highly probable." United States v. Yi, 704 F.3d 800, 806 (9th Cir. 2013).
To determine whether a noncitizen is a flight risk or poses a danger to the community, immigration judges may consider the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006), particularly "the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses." Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. & N. Dec. at 40). An immigration judge "has broad discretion in deciding the factors that he or she may consider in custody redeterminations." Singh v. Napolitano, No. CV 08-464-BTM (JMA), 2011 WL 4041000, at *1 (S.D. Cal. Sept. 9, 2011) (citing Guerra, 24 I. & N. Dec. at 40). DHS regulations outlining applicable rules of procedure in immigration court bond determinations "specify that an immigration judge may rely 'upon any information that is available to the immigration judge or that is presented to him or her by the alien or the Service.'" Singh, 638 F.3d at 1210 (citing 8 C.F.R. § 1003.19(d)). The immigration judge may choose to give greater weight to one factor over others, as long as the decision is reasonable. Guerra, 24 I. & N. Dec. at 40.
When bond is denied on the basis of dangerousness, the noncitizen's criminal record is relevant and "the recency and severity of the offenses must be considered." Singh, 638 F.3d at 1206. While "not every criminal record would support a finding of dangerousness," id., "due process does not require the government to prove that [a noncitizen] presents a 'special danger' to justify denial of bond at a Casas hearing." Id. at 1207.
B. DISCUSSION
1. The Duration of Petitioner's Continued Detention Does Not Violate Due Process
To the extent Petitioner argues the two year duration of his detention violates due process, this claim fails. While "prolonged detention without adequate procedural protections would raise serious constitutional concerns," Casas-Castrillon, 535 F.3d at 950, Petitioner cites no authority for the proposition that a noncitizen's detention pursuant to Section 1226(a) violates due process where he has been afforded the procedural protections contemplated by Section 1226(a). See Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 277 (3d Cir. 2018) (finding "duration of detention alone cannot sustain a due process challenge by a detainee who has been afforded the process contemplated by section 1226 and its implementing regulations"). Here, the record demonstrates Petitioner has been granted bond hearings before an immigration judge, redetermination hearings, and opportunities to appeal bond decisions to the BIA. See 8 U.S.C. § 1226(a)(2); 8 C.F.R. §§ 236.1(c)(8), 236.1(d)(3), 1003.19(e).
Cf. Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (finding "grave doubt" that "arbitrary prolonged detention without any process is constitutional.") (emphasis added). Unlike Petitioner, who has received multiple bond hearings, the class members in Rodriguez v. Marin were aliens detained pursuant to Section 1226(a) who had not been afforded bond hearings to determine whether their prolonged detention was justified. See Rodriguez v. Holder, No. CV 07-3239 TJH RNBX, 2013 WL 5229795, at *1 (C.D. Cal. Aug. 6, 2013), aff'd in part, rev'd in part sub nom. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev'd sub nom. Jennings v. Rodriguez, 138 S. Ct. 830, 200 L. Ed. 2d 122 (2018) (defining class members as "All non-citizens within the Central District of California who: (1) Are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review; (2) Are not and have not been detained pursuant to a national security detention statute; and (3) Have not been afforded a hearing to determine whether their detention is justified.") (emphasis added).
Additionally, Petitioner's contention that the length of his detention violates due process under a "reasonableness test", Pet. at 18-19, also fails. The "reasonableness test" Petitioner presents is inapplicable, because it is derived from cases involving a different statutory source of detention, 8 U.S.C. § 1226(c) ("Section 1226(c)"). See Barbot, 906 F.3d at 278. Section 1226(c) applies to criminal aliens subject to mandatory detention who are not entitled to bond hearings. See Casas-Castrillon, 535 F.3d at 946. Petitioner, however, is a noncitizen detained under Section 1226(a), who has received three bond detention hearings and pursued at least one appeal to BIA. Answer at 5. /// ///
Accordingly, in light of the procedural protections Petitioner has been afforded, any claim that the two year duration of his detention violates due process fails.
2. The Clear And Convincing Standard Of Proof Was Applied At Petitioner's Bond Hearing
Petitioner also argues he was denied due process at the December 7, 2018 bond hearing because the IJ failed to apply the proper burden of proof. This claim fails for the following reasons.
While Petitioner correctly states the Government bears the burden of showing "clear and convincing evidence" of Petitioner's dangerousness or flight risk, the record does not demonstrate this burden was improperly shifted to Petitioner. Petitioner clams the IJ did "not even ask [the Government] to make arguments or produce evidence that Petitioner is a flight risk or danger to the community", but instead "announced he had already made [the] findings", thus improperly placing the burden on Petitioner to "rebut the court's brief and conclusory treatment of the evidence." Pet. at 28. At the hearing, however, the IJ opened the hearing by stating he was in receipt of a "packet" of information presented by the Government "marked as exhibit two," Audio Transcript of Dec. 7, 2018 Hearing ("Transcript"), Track 01 at 2:05, which the bond memorandum describes as "evidence concerning [Petitioner's] immigration and criminal histories, including a Form I-213, Record of Deportable/Inadmissible Alien; an FBI rap sheet; a police report; criminal court records; the Court's order of removal; and the Board's dismissal of his appeal." Dkt. 8-1, p. 79-81, Bond Memorandum (Jan. 3, 2018), at 79. The IJ also stated he was in receipt of a "packet of materials" from Petitioner, Transcript, Track 01 at 1:45, including a "custody redetermination questionnaire, documents concerning his immigration history, evidence of family ties in the United States, a psychological evaluation, criminal records, and a letter from his spouse." Id. In addition, the IJ heard argument from Petitioner's counsel. Transcript, Track 04 at 1:38 — Track 06 at 3:16.
Ultimately, the IJ concluded, "after considering all the evidence presented," Petitioner's positive factors "did not negate the seriousness of [Petitioner's] criminal history or his extreme risk of flight." Dkt. 8-1, Bond Memorandum at 81. The IJ's bond memorandum clearly states the Government "met its burden of establishing that [Petitioner's] ongoing detention was justified because he was a danger to the community and an extreme flight risk." Id.
Under these circumstances, the IJ did not violate Petitioner's due process rights by improperly shifting the burden of proof. Had the IJ's determinations been made without the Government's submission of any documentation demonstrating Petitioner's background and criminal history, or without affording Petitioner's counsel an opportunity to be heard, the question of whether due process was afforded may have been unclear. Mathews, 424 U.S. at 333. Here, however, both the transcript of the hearing and the written bond memorandum document the IJ exercised discretion in considering and weighing the evidence before him and ultimately concluded the Government had met its burden of proof of establishing Petitioner's dangerousness by clear and convincing evidence. Dkt. 8-1, Bond Memorandum at 81.
3. The IJ Did Not Err As A Matter of Law In Finding the Government Had Met Its Burden
Petitioner appears to argue the IJ committed legal error in finding Petitioner was a danger or a flight risk. Pet. at 29 ("Petitioner's detention is not based on facts that prove [Petitioner] is in fact dangerous or a flight risk."). While this Court cannot review discretionary determinations, it may review "mixed questions of law and fact." Ramadan, 479 F.3d 646. Nevertheless, Petitioner's claim fails for the following reasons.
First, the IJ's finding of dangerousness was supported by the record. The undisputed evidence at the bond hearing established Petitioner was convicted of a crime of violence, namely, assault with intent to commit great bodily injury. Petitioner was convicted of this crime in June of 2017, approximately one and a half years before the bond hearing at issue. Pet. at 7. As set forth in the police report, Petitioner punched his sixty-year-old mother-in-law in the face ten times and stomped on her face twice. Dkt. 7-1 at 10. The IJ was entitled to consider the "recency and severity of the offense[]" as important factors. Singh, 638 F.3d at 1206; Dkt. 8-1, Bond Memorandum at 81; Transcript, Track 06 at 3:40. Moreover, the IJ was not required to find Petitioner was "special[ly]'" dangerous to deny bond. Singh, 638 F.3d at 1207.
While Petitioner argues the IJ made "questionable" fact findings including "according enormous weight to the 'heinousness' of Petitioner's actions, and little to no weight to the testimony and letters from the actual victim in the case", the Court does not find it was legal error to rely on the facts surrounding Petitioner's conviction in denying bond and may not review the IJ's discretionary weighing of evidence. Singh, 638 F.3d at 1201; Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 773 (N.D. Cal. 2019) (a district court has jurisdiction to review IJ's discretionary bond denial where it is challenged as legally erroneous or unconstitutional, but courts "must be careful not to encroach upon the IJ's discretionary weighing of the evidence" (internal quotation marks and citation omitted)). Hence, despite any mitigating factors, the IJ did not err as a matter of law in finding clear and convincing evidence Petitioner was a danger.
The IJ's finding of flight risk was also supported by the record. The IJ found Petitioner's chances of being able to stay in the United States were "not that great," Transcript, Track 07 at 0:19, which indicated increased flight risk. See Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987). Further, in his bond memorandum, the IJ concluded Petitioner was an extreme flight risk because "his criminal history indicates a lack of respect for authority" and because, despite Petitioner's stay in the Ninth Circuit, Petitioner "will apparently be removed from the United States" and the IJ "has no confidence [the Ninth Circuit petition for review] will be successful." Dkt. 8-1, Bond Memorandum at 81. While Petitioner appears to argue it was legal error for the IJ to "completely ignore[] the grant of a stay in Petitioner's Ninth Circuit appeal," and to "grossly underestimate Petitioner's prospects for relief from removal," pet. at 28, the Court may not review the IJ's discretionary weighing of the evidence. Lopez Reyes, 362 F. Supp. 3d at 773. Thus, the IJ did not err as a matter of law in finding clear and convincing evidence Petitioner was a flight risk.
4. Discussing or Finding Alternatives To Detention Were Appropriate Was Not Required
Lastly, Petitioner appears to argue that due process required the IJ to consider "alternatives to detention" and that he failed to do so, which constituted a failure to "narrowly tailor[]" the Government's interest in detention and a violation of Petitioner's "substantive due process" rights. Pet. at 29-31. This claim fails.
In his Objections, Petitioner argues he is "covered" under the permanent injunction issued by the district court in Rodriguez v. Holder, which ordered the Government to "provide each class member... with a bond hearing before an Immigration Judge consistent with the substantive and procedural requirements set forth in this Order and Casas, Singh, and Rodriguez II." Rodriguez v. Holder, No. CV 07-3239 TJH (RNBX), 2013 WL 5229795, at *3 (C.D. Cal. Aug. 6, 2013), aff'd in part, rev'd in part sub nom. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev'd sub nom. Jennings v. Rodriguez, 138 S. Ct. 830, 200 L. Ed. 2d 122 (2018). Petitioner points to the court's language that "Immigration Judges should already be considering restrictions short of incarceration" as indicating an IJ must discuss or articulate possible alternatives to detention at a bond hearing and claims it supports his position. Dkt. 12, Objections at 13.
First, as discussed in footnote 5 above, Petitioner is not "covered" under the Rodriguez injunction, because he is not a member of the class of aliens who have not received a bond hearing to determine whether detention is justified. Second, the language Petitioner cites is mere dicta. See Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir. 1995) (statements not necessary to a decision are dicta and have no binding or precedential impact). Finally, Petitioner ignores the court's language immediately preceding the language he cites, where the court declined to explicitly hold "that an Immigration Judge be required to consider conditions short of incarceration", describing this as a "proposed procedural addition" that fell "outside the ambit of Casas, Singh, and Rodriguez II ". Rodriguez v. Holder, 2013 WL 5229795, at *2.
Rodriguez v. Robbins, 715 F.3d 1127, 1131 (9th Cir. 2013) ("Rodriguez II").
Ultimately, Petitioner cites no binding authority to support the proposition that an IJ must discuss or articulate possible alternatives to detention at a bond hearing where findings of dangerousness and "extreme flight risk" indicate the IJ has determined release on any conditions is not suitable. See Slim v. Nielson, No. 18-CV-02816-DMR, 2018 WL 4110551, at *5 (N.D. Cal. Aug. 29, 2018) (finding petitioner "points to no authority that supports his claim that the IJ is required in every circumstance to discuss alternatives to detention or whether any amount of bond can overcome a risk of flight" and IJ's decision denying bond "necessarily implies that the IJ concluded that no amount of bond was appropriate"); cf. Hernandez v. Sessions, 872 F.3d 976, 990-91 (9th Cir. 2017) (finding that for noncitizens who have been determined to be neither dangerous nor a flight risk and thus released on bond, due process likely requires consideration of alternative release conditions and financial circumstances). Thus, because Petitioner seeks to have this Court review a discretionary determination by the IJ as to whether to release Petitioner on bond, his attempt to characterize this claim as a due process violation fails. Torres-Aguilar, 246 F.3d at 1271 ("[A] Petitioner may not ... cloak[]an abuse of discretion argument in constitutional garb."). /// ///
Accordingly, for the reasons set forth above, the Court does not find Petitioner's continued detention or bond hearing constitutionally flawed or legally erroneous. Petitioner is, therefore, not entitled to habeas relief.
IV.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) adopting this Final Report and Recommendation; (2) denying the Petition; and (3) directing that Judgment be entered dismissing this action without prejudice to Petitioner filing another habeas petition if additional time elapses and if it appears his detention is based on constitutional or legal error. Dated: October 18, 2019
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge