Opinion
Civil Action No. 1:20-cv-00827 (AJT/IDD)
2020-08-11
Didier Kofe MBALIVOTO, Petitioner, v. Russell HOLT, et al., Respondents.
Irina Manelis, Manelis Law PLLC, Glen Allen, VA, Simon Yehuda Sandoval-Moshenberg, Simon Sandoval Moshenburg, Fall Church, VA, for Petitioner. Matthew J. Mezger, US Attorney's Office, Alexandria, VA, for Respondents Russell Hott, William P. Barr. John Michael Erbach, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.
Irina Manelis, Manelis Law PLLC, Glen Allen, VA, Simon Yehuda Sandoval-Moshenberg, Simon Sandoval Moshenburg, Fall Church, VA, for Petitioner.
Matthew J. Mezger, US Attorney's Office, Alexandria, VA, for Respondents Russell Hott, William P. Barr.
John Michael Erbach, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.
ORDER
Anthony J. Trenga, United States District Judge
Petitioner Didier Kofe Mbalivoto, a citizen of the Democratic Republic of the Congo ("DRC"), has been held in immigration custody since October 7, 2018, when he arrived at a United States port of entry on a B-2 visitor visa issued from a U.S. consulate and sought asylum based on his fear of persecution and torture in the DRC. He has now been granted asylum by an Immigration Judge, a decision the Government has appealed to the Board of Immigration Appeals ("BIA").
On July 22, 2020, after nearly twenty-two months in detention while his asylum application has been adjudicated, he filed a Petition for Writ of Habeas Corpus [Doc. No. 1] (the "Petition" or "Pet."), seeking an order directing Respondents to release him from detention pending completion of immigration proceedings unless they (i) justify his detention on the grounds of then-existing flight risk or danger to the community or (ii) schedule and hold a bond hearing before an Immigration Judge. See Pet. at 17–18.
The Federal Defendants have filed a response [Doc. No. 11], and the Director of Immigration Centers of America – Farmville, LLC has filed a response as a nominal party [Doc. No. 8]. The Court held a hearing on the Petition on July 31,2020, following which it took the matter under advisement.
For the following reasons, the Petition is GRANTED, and Respondents will be ordered to hold an individualized bond hearing within 14 days.
I. BACKGROUND
The facts of this case are not in dispute and have been thoroughly presented in the Immigration Judge's written decision. [Doc. No. 5]. The Petitioner arrived in the U.S. on October 7, 2018 after fleeing the DRC by way of South Africa. Pet. ¶¶ 17–18. He presented at Washington-Dulles Airport in Virginia a B-2 visitor visa, and thereafter expressed his fear of return and desire to seek protection. Pet. ¶ 18. He passed his credible fear interview and was "placed in removal proceedings as an arriving alien." Pet. ¶ 18. He was transferred to the Farmville Detention Center in Farmville, Virginia. Pet. ¶ 18.
Petitioner had obtained his visa by misrepresenting the purpose of his trip to the United States. Specifically, Plaintiff had paid for an invitation to an international conference in the United States and used that invitation to obtain his visa. When he requested asylum upon arrival at Dulles International Airport, he also disclosed to immigration authorities that he had obtained his visa through this misrepresentation. [Doc. No. 11] at 5.
Petitioner applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture ("CAT"). Immigration and Customs Enforcement ("ICE") counsel opposed that application on the grounds that he was barred from asylum relief because he had provided material support to a Tier III terrorist organization based on his membership and advocacy for the Movement for the Liberation of the Congo ("MLC") political party in the DRC and also because he did not qualify for CAT deferral based on the changed political environment in the DRC following recent elections in the DRC. Pet. ¶ 19. On March 7, 2019, the Immigration Judge denied all relief. Id. Petitioner filed an appeal to the BIA, and on September 5, 2019, the BIA remanded the case to the Immigration Court. Id. On June 15, 2020, the Immigration Judge granted Petitioner asylum. On July 13, 2020, the Government filed a notice of appeal with the BIA.
The Immigration Judge found the following:
(1) Mr. Mbalivoto had suffered past persecution and had a well-founded fear of future persecution in the DRC on account of his political opinion and that he merits an exercise of discretion; (2) that his advocacy on behalf of the MLC political party did not bar him from asylum relief because the MLC political party is not a Tier III terrorist organization; (3) that alternatively, even assuming arguendo the MLC political party were a Tier III organization, that Mr. Mbalivoto had credibly testified and demonstrated by clear and convincing evidence that he did not know, and should not reasonably have known, that it was a terrorist organization, and he therefore qualifies for the exception to the material support bar, and is thus still eligible for asylum; and (4) that had Mr. Mbalivoto not been granted asylum, he would have alternatively been granted deferral of removal under the Convention Against Torture as he has established that it is more likely than not that he will be tortured upon return to the DRC by, at the instigation of, or with the acquiescence of, a DRC official given current DRC country conditions.
Pet. ¶ 22; see also [Doc. No. 5].
According to Petitioner's experienced immigration counsel, the appeal is expected to take six months to a year to adjudicate. See also Pet. ¶ 25.
During his detention over the past 22 months, Petitioner requested parole twice pursuant to 8 U.S.C. § 1182(d)(5)(A), first on November 9, 2018, and then again on June 10, 2020. Pet. ¶ 24; [Doc. No. 11] at 7. Both requests were denied, the first because Petitioner had not demonstrated that he was not a flight risk or would not pose a danger to the community and the second without any reasons, as far as the Court can tell. Pet. ¶ 24; [Doc. No. 11] at 7; [Doc. No. 11-1] ¶ 24 ("On or about June 12, 2020, ICE informed Petitioner, through counsel, that after a review of his case, parole would not be granted."). Given the length of his current detention, Petitioner contends that he is entitled to be released pending a final adjudication of his asylum application based on the procedural due process rights that apply under the circumstances of his situation; and in further support of his application, Petitioner points to his having contracted the COVID-19 virus during his detention and argues that continued detention at Farmville in "jail-like conditions" threatens further health risks. Pet. ¶ 26.
The Government asserts that Petitioner has never been "admitted" to or deemed to have "entered" the United States, either legally or illegally, but rather has the status of an "arriving alien" who is deemed to have been "stopped at the border"; and he accordingly has no due process rights with respect to his continued detention other than those specifically granted by Congress—i.e. , release through the statutory parole process he has already used and continues to have available to him. The Government also contends that the current conditions of his confinement or his own COVID-19 health risks do not confer any additional rights, and in any event, he has received and will continue to receive adequate treatment while in immigration custody for any health issues. [Doc. No. 11] at 8.
For purposes of this Order, the Court will refer to arriving aliens, governed by 8 U.S.C. § 1225(b), as "arriving aliens" or "entering aliens," and will refer to those aliens who have already entered the United States, legally or illegally, and whose removal is governed by 8 U.S.C. § 1226(a) or (c), as "entered aliens."
The Court has jurisdiction pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1331, and venue is proper in this District pursuant to 28 U.S.C. § 1391(e) because Petitioner is physically present and in the custody of Respondents at the Farmville Detention Center in Farmville, Virginia, within the jurisdiction of the Eastern District of Virginia.
II. STATUTORY FRAMEWORK
Under 8 U.S.C. § 1225, an alien who "arrives in the United States," or "is present" in this country but "has not been admitted," is treated as "an applicant for admission." 8 U.S.C. § 1225(a)(1). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See § 1225(b)(1)(A)(i) (citing §§ 1182(a)(6)(C), (a)(7) ). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See § 1225(b)(1)(A)(iii). Section 1225(b)(1) authorizes the detention of certain aliens. Aliens covered by § 1225(b)(1) are normally ordered removed "without further hearing or review" pursuant to an expedited removal process. § 1225(b)(1)(A)(i). But if a § 1225(b)(1) alien "indicates either an intention to apply for asylum ... or a fear of persecution," then that alien is referred for an asylum interview. § 1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, "the alien shall be detained for further consideration of the application for asylum." § 1225(b)(1)(B)(ii).
Applicants for admission may be temporarily released on parole "for urgent humanitarian reasons or significant public benefit." § 1182(d)(5)(A) ; see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such parole, however, "shall not be regarded as an admission of the alien." § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, "the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." § 1182(d)(5)(A). Neither §§ 1225(b), 1182(d)(5)(A) nor any other statute specifically authorizes an individualized bond hearing pending the outcome of asylum proceedings in Petitioner's circumstances.
III. ANALYSIS
Petitioner claims that the Government has violated the Due Process Clause of the Fifth Amendment by detaining him for over 22 months without an individualized bond hearing. Specifically, Petitioner argues that "[t]o justify [his] ongoing prolonged detention ..., due process requires that the government establish, at an individualized hearing before a neutral decision-maker, that his detention is justified by clear and convincing evidence of flight risk or danger, even after consideration [of] whether alternatives to detention could sufficiently mitigate that risk." Pet. ¶ 54.
The Fifth Amendment's Due Process Clause mandates that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Supreme Court has held that the Due Process Clause "applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Id. at 693, 121 S.Ct. 2491. It has also held that an alien's detention may be challenged through the writ of habeas corpus. See id. at 699, 121 S.Ct. 2491 ("Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question.").
The Supreme Court has consistently held that for certain purposes under the Fifth Amendment there is a constitutionally sound distinction in immigration law between arriving aliens and those who have already entered the United States. See Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1982, 207 L.Ed.2d 427 (2020) ; Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ; Zadvydas v. Davis , 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing Kaplan v. Tod , 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) ) ("The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law."). In that regard, an entering alien has only those rights concerning his admissibility as Congress has statutorily provided. At the core of this case is whether that distinction is dispositive with respect to Petitioner's challenge to his detention as an entering alien, as the Respondents contend, or whether his rights with respect to his detention are governed by the Supreme Court's broader due process pronouncements pertaining to the detention, as opposed to the admissibility, of aliens other than entering aliens.
In Department of Homeland Security v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020), the Supreme Court recently considered whether the provisions in 8 U.S.C. § 1252(a)(2) and (e)(2), which foreclose judicial review of a negative credible-fear determination, violate procedural due process. The Ninth Circuit held that § 1252 violated due process and therefore required more proceedings than were statutorily provided. The Supreme Court reversed, holding that as to "foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, ... the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." Id. at 1982 (quoting Nishimura Ekiu v. United States , 142 U.S. 651, 660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892) ). In that regard, it reaffirmed the principle that "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Id. (quoting U.S. ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ). The Supreme Court also ruled that the writ of habeas corpus could not be used to obtain the relief sought because the entering alien in that case was not seeking "release from illegal custody," id. at 1969 (quoting Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ), but was instead seeking the "vacatur of his ‘removal order’ and ‘an order directing [the Department] to provide him with a new ... opportunity to apply for asylum or other relief from removal.’ " Id. at 1970. As reflected in that ruling, the Court did not consider whether an entering alien's status also limited his ability to challenge the legality of his detention. The Government contends, however, that this issue was specifically addressed in Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953).
In Mezei , Mezei had lived in the United States for 25 years before travelling abroad for several years. When he returned, he was detained indefinitely at Ellis Island pursuant to the Passport Act, by which Congress "authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife," which applied to the "present emergency." Id. at 210, 73 S.Ct. 625. When he filed his habeas petition, Mezei had been detained for nearly two years with no end in sight after the United States "shut him out and others were unwilling to take him in." Id. at 209, 73 S.Ct. 625. In denying habeas relief, the Court noted that aliens "on the threshold of initial entry stand[ ] on a different footing" with respect to their entitlement to procedural due process than those who have "passed through our gates." Id. at 209, 212, 73 S.Ct. 625. But as in Thuraissigiam , the Court was specifically considering the constitutionality of the statutory scheme used to determine Mezei's admissibility, which at that point had been finally determined; and because Mezei had already been definitively determined to be barred from entering the United States on national security grounds, the Court did not consider directly the constitutionality of his indefinite detention that resulted from that final determination. See Mezei , 345 U.S. at 212, 73 S.Ct. 625. And when the Supreme Court has considered explicitly the due process rights that attach to an alien's detention, it has given legislative judgments reflected in a statute's text an important but less dispositive role.
Under the Passport Act of 1918, the Attorney General, acting for the President, may shut out aliens whose "entry would be prejudicial to the interest of the United States." Section 1 of the Act of May 22, 1918, Ch. 81, 40 Stat. 559, as amended by the Act of June 21, 1941, Ch. 210, § 1, 55 Stat. 252, 22 U.S.C. § 223. Section 223 stated:
When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful—
(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe ...
Pursuant to this authority, President Roosevelt, by Presidential Proclamation No. 2523, declared a national emergency on May 27, 1941 in response to World War II and ordered that "[n]o alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General." Mezei was denied entry into the United States based on that Proclamation.
The Court's conclusion that Mezei's indefinite detention did not deprive him of "any statutory or constitutional right" was likewise based on its holding that Mezei's admissibility determination did not violate due process. For that reason, the Court's refusal to address directly the constitutionality of Mezei's detention recognized that a review of his detention per se , without first vacating his admissibility determination, would implicitly concede that someone who had been excluded from admission on national security grounds could nevertheless be released into the United States. See id. at 212–16, 73 S.Ct. 625 ("An exclusion proceeding grounded on danger to the national security, however, presents different considerations; neither the rationale nor the statutory authority for such release exists [as compared to removal of resident aliens]. Ordinarily to admit an alien barred from entry on security grounds nullifies the very purpose of the exclusion proceeding; Congress in 1950 declined to include such authority in the statute. That exclusion by the United States plus other nations inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that other countries ought not shift the onus to us; that an alien in respondent's position is no more ours than theirs. Whatever our individual estimate of that policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.") (emphasis added). In Thuraissigiam , the Supreme Court cited Mezei as precedent with respect to the due process required for admissibility determinations, without any suggestion that it also applied to detention issues. See id. at 1115, 121 S.Ct. 2491 (citing Mezei for the proposition that a noncitizen may test the validity of his exclusion by habeas, even where the noncitizen lacks due process rights).
Cf. Wong Wing v. United States , 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (finding unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order, because the case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined).
In Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court considered the constitutionality under 8 U.S.C. § 1231(a)(6) of detaining an alien beyond the point in time when removal was "no longer practically attainable." Id. at 690, 121 S.Ct. 2491. In that regard, the Supreme Court held that § 1231(a), which applies to "inadmissible or criminal aliens" who have been ordered removed, contains "an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review[,]" id. at 682, 121 S.Ct. 2491, that "the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States .... [and that a] statute permitting indefinite detention of an alien would raise a serious constitutional problem." Id. at 689–90, 121 S.Ct. 2491. "[F]or the sake of uniform administration in the federal courts," the Court determined that, after six months, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. at 701, 121 S.Ct. 2491. The Court did not consider the role an individualized bond hearing would play, except to observe that his continued detention beyond a reasonable time could only be justified based on an order in a criminal proceeding with all the due process protections. See Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491.
Section 1231(a)(3) provides: "If the alien does not leave or is not removed within the [ninety-day] removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General."
In Demore v. Kim , 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court considered the plight of an alien detained pursuant to 8 U.S.C. § 1226(c), which applies to an alien who is placed in immigration custody for removal proceedings based on the commission of certain criminal offenses or terrorist activities. Holding that "Congress ... may require that persons ... be detained for the brief period necessary for their removal proceedings," Demore , 538 U.S. at 513, 123 S.Ct. 1708, the Court reaffirmed that in the exercise of its broad power over naturalization and immigration, Congress "regularly makes rules that would be unacceptable if applied to citizens," Demore , 538 U.S. at 521, 123 S.Ct. 1708 ; and while the Fifth Amendment entitles aliens to due process in deportation proceedings, detention during such proceedings is a constitutionally valid aspect of the process, even where aliens challenge their detention on the grounds that there has been no finding that they are unlikely to appear for their deportation proceedings. Demore , 538 U.S. at 524, 123 S.Ct. 1708.
Specifically, the Court relied in part on government-proffered evidence that under § 1226(c), "in the majority of cases it lasts for less than the 90 days we considered presumptively valid in Zadvydas. " Demore , 538 U.S. at 529, 123 S.Ct. 1708. In his concurring opinion, Justice Kennedy noted that "a lawful permanent resident alien ... could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring).
Although the Supreme Court found both statutes passed constitutional muster, it nevertheless recognized, explicitly in Zadvydas , and implicitly in dicta in Demore , that at some point immigration detention becomes unreasonable and therefore unconstitutional. See Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491 ; cf. Demore , 538 U.S. at 527–30, 123 S.Ct. 1708 (distinguishing Zadvydas on the grounds that 1226(c)’s limited detention period furthered the purpose of the statute and was for a definite, relatively short period). Under § 1231(a)(6), that period was presumptively after six months; and under § 1226(c), that time appears to be a point substantially beyond "the limited period necessary" to effect removal.
Neither Zadvydas nor Demore dealt with the due process rights of an entering alien who has had no previous status or presence in or connection to the United States; and Respondents anchor their position on that distinction. But Respondents do not contend that the Fifth Amendment does not apply to an entering alien's detention, but rather contend, based on Thuraissigiam and Mezei , that all the process that is constitutionally due with respect to an entering alien's detention under § 1225(b) is, as with admissibility, those rights explicitly provided for by Congress, i.e. , parole at the unreviewable discretion of the Attorney General. See Thuraissigiam , 140 S. Ct. at 1982 ; see also 8 U.S.C. § 1182(d)(5)(A). Under this view of the Fifth Amendment, except for a detention that extends beyond the "consideration" of Petitioner's application for asylum, however long that may be, Petitioner does not have any right to seek release through an individualized bond hearing; and since his asylum application is still under consideration, his opportunity for release remains exclusively within the discretion of the Attorney General through parole.
As mentioned above, Zadvydas and Demore imported into an entered alien's immigration detention a reasonableness requirement, measured by the relationship between the length of detention relative to its statutory purpose. Granting relief in this case requires not only extending that reasonableness requirement to an entering alien's immigration detention but also measuring reasonableness based primarily on the sheer length of that detention rather than its relationship to the statutory purpose for that detention. In that regard, Petitioner does not claim that the statutory purpose for which he is being detained—consideration of his asylum application—is no longer discernable, as in Zadvydas , but that Respondents’ consideration of that application has simply exceeded the length of time that is constitutionally reasonable without an individualized bond hearing, precisely the scenario implicitly envisioned as possible in Demore.
Respondents’ recognition that the Fifth Amendment's guarantee of procedural due process applies to the detention of an entering alien effectively concedes that some constitutionally adequate process must be provided; and the Court concludes, based on Zadvydas, Demore , and Thuraissigiam , that Petitioner is not foreclosed from the relief he seeks with respect to his detention either because he is an entering alien, as opposed to an entered alien, or because there remains a discernable statutory purpose for his detention. Rather, in determining whether Petitioner's continued detention without an individualized bond hearing is constitutionally reasonable, the Court has considered the statutory remedies available to Petitioner, and whether those remedies constitute constitutionally adequate process.
Petitioner's statutory opportunity for parole, which he twice requested and was twice denied, has highly restrictive criteria and limited transparency, is subject to the unreviewable discretion of the Attorney General, and has no opportunity for an actual hearing before a neutral decisionmaker. See 8 U.S.C. § 1182(d)(5)(A) ("The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States[.]"); 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding judicial review of individual parole decisions); ICE Directive 11002.1, at §§ 8.2, 8.4, available at https://www.ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear.pdf (providing only for an interview with a Detention and Removal Operations officer and the submission of supplementary information, if applicable, for an alien to seek parole). In short, that parole process has none of the features of an individualized bond hearing; and the Court concludes that the statutory parole remedy available to Petitioner is not constitutionally adequate at this point. In that regard, the Court has considered Respondents’ relied-upon distinction between entering aliens and entered aliens in determining what process is due. That distinction quickly becomes constitutionally suspect as the dispositive operative principle when one considers the arbitrary results it produces when applied to immigration detention, as opposed to admissibility. For example, had Petitioner entered the country through his visa without disclosing how he obtained it or his true intentions, overstayed his visa, or worse yet, committed a crime while in the country, and when detected and brought into the immigration system, requested asylum, he would have been detained pursuant to 8 U.S.C. § 1226(a), which provides for an immediate bond hearing, see 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1), or, depending on his offense, § 1226(c), pursuant to which he would be entitled to a bond hearing under Demore if his detention lasted beyond a relatively short period of time. See Portillo v. Hott , 322 F. Supp. 3d 698, 705 (E.D. Va. 2018) (noting that Demore supports a balancing test for questions of reasonableness of detention under § 1226(c) ). And if he ultimately loses his appeal to the BIA and is ordered removed pursuant to 8 U.S.C. § 1231(a)(6), Petitioner then has a non-statutory right to seek release after six months. Zadvydas v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). These disparities in treatment become even more difficult to justify based on the facts of this case where, unlike many aliens held under § 1226(a) or (c), Petitioner has not engaged in any conduct while in the United States that makes him inadmissible; and, after 22 months, an Immigration Judge has determined Petitioner is entitled to asylum or, in the alternative, deferral of removal under CAT and his lawful presence in the United States appears to be a realistic, if not probable outcome.
The comparison becomes even more stark when one considers the range of crimes that would bring an alien under § 1226(c), which includes, inter alia , terrorism-related activities.
Relying principally on Landon v. Plasencia , 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), the Government contends that these disparate results can be reconciled for the purposes of the Fifth Amendment because aliens brought into immigration custody pursuant to § 1226 have already entered the country, legally or otherwise, and would likely have various social and familial ties deserving of consideration that a newly entering alien would not. See id. at 32, 103 S.Ct. 321 ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application ... however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.") (emphasis added). But that position ignores that issues of asylum or deferral of removal under CAT can often also arise when an entered alien is initially detained under § 1226, thereby making that entered alien's situation not materially different from Petitioner's, except that the entered alien would have a right to an individualized bond hearing; and while entered aliens brought into the immigration proceedings may have community and social ties that a newly arriving alien does not, that would not always be the case. In any event, those ties would appear to bear more centrally on whether and under what conditions a detained alien can be appropriately released on bond, not whether he should have a bond hearing at all.
For the above reasons, the Court joins those other courts that have concluded that an individualized bond hearing is required at that point when an entering alien's continued detention under 8 U.S.C. § 1225(b) becomes unreasonable and constitutionally infirm without one.
See, e.g., Pierre v. Doll , 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) ; Tuser v. Rodriguez , 370 F. Supp. 3d 435, 442–43 (D.N.J. 2019) ; Lett v. Decker , 346 F. Supp. 3d 379, 2018 WL 4931544 (S.D.N.Y. Oct. 10, 2018) ; Perez v. Decker , 2018 WL 3991497 (S.D.N.Y. Aug. 20, 2018).
In determining whether an alien's continued detention is unreasonable without a bond hearing, courts have considered a variety of factors, which generally include (1) the length of Petitioner's detention; (2) the length of any delays attributable to the Petitioner; and (3) his likelihood of ultimately being ordered removed. See generally Portillo v. Hott , 322 F. Supp. 3d 698 (E.D. Va. 2018) (outlining a balancing test of five factors to consider detention under § 1226(c) ); see also Jamal A. v. Whitaker , 358 F. Supp. 3d 853, 858 (D. Minn. 2019) (noting that courts analyzing § 1225(b) "seem to apply pretty much the same factors" as those analyzing § 1226(c), "regardless of whether the court agrees that [entering aliens] receive less protection than aliens detained under other provisions"). The Court has considered these factors with respect to Petitioner's detention as well as any "urgent humanitarian reasons or significant public benefit" that would justify parole. See § 1182(d)(5)(A).
Petitioner has been detained for approximately twenty-two months. [Doc. No. 12] at 7. And while his detention will end when immigration officers have finished "consider[ing]" the application for asylum, 8 U.S.C. § 1225(b)(1)(B)(ii), his detention has exceeded those periods the Supreme Court, and other courts, have found constitutionally unreasonable. The Court likewise concludes that the sheer length of his detention and its likely continuation for a significant additional period as the case is appealed weighs heavily in favor of granting Petitioner relief.
See Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (six months presumptively unreasonable under § 1231 ); Lett v. Decker , 346 F. Supp. 3d 379, 2018 WL 4931544 (S.D.N.Y. Oct. 10, 2018) (ten months’ detention unreasonable under § 1225(b) ); Perez v. Decker , 2018 WL 3991497 (S.D.N.Y. Aug. 20, 2018) (one-year detention unreasonable under § 1225(b) ); Ly v. Hansen , 351 F.3d 263, 270 (6th Cir. 2003) (bond hearing required after 18 months of detention under § 1226(c) ); Portillo v. Hott , 322 F. Supp. 3d 698, 707 (E.D. Va. 2018) (bond hearing required after 14 months’ detention under § 1226(c) ); Mauricio-Vasquez v. Crawford , No. 116CV01422AJTTCB, 2017 WL 1476349, at *4 (E.D. Va. Apr. 24, 2017) (bond hearing required after 15 months’ detention under § 1226(c) ); Haughton v. Crawford , No. 116CV634LMBIDD, 2016 WL 5899285, at *9 (E.D. Va. Oct. 7, 2016) (bond hearing required after 12 months’ detention under § 1226(c) ); Tuser v. Rodriguez , 370 F. Supp. 3d 435, 442–43 (D.N.J. 2019) (20 months unreasonable under § 1225(b) ); see also Bah v. Barr , 409 F. Supp. 3d 464, 470 (E.D. Va. 2019), appeal dismissed , No. 19-7653, 2020 WL 2126451 (4th Cir. Jan. 22, 2020) (bond hearing required after 24 months under § 1226(c) ); Pierre v. Doll , 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) (24 months’ detention unreasonable under § 1225(b) ).
The Court has also considered whether the length of his detention should be attributed to the Petitioner or the Respondents. Although the Petitioner asked for relatively short time extensions on certain filing deadlines, the Court cannot find in the record any evidence that Petitioner engaged in any bad faith or obstructive conduct that affected the timely processing of his application. Similarly, the Court finds no lack of diligence or bad faith on the part of Respondents, any Immigration Judge or the BIA; and the time reflected in the processing of Petitioner's application simply reflects the increased processing time caused by the challenging volume of immigration applications that need to be adjudicated. Nevertheless, the constitutional reasonableness of Petitioner's detention is not dependent on Respondents’ lack of diligence or bad faith, but on the length of that detention. As this Court has already recognized, a "[detained alien's] decision ‘to explore avenues of relief that law makes available to him’ does not mitigate the Due Process concerns created by his lengthy detention." Bah v. Barr , 409 F. Supp. 3d 464, 472 (E.D. Va. 2019), appeal dismissed , No. 19-7653, 2020 WL 2126451 (4th Cir. Jan. 22, 2020) (quoting Ly v. Hansen , 351 F.3d 263, 272 (6th Cir. 2003) ). Having found no delays that should be attributed to Petitioner's own conduct, the length of Petitioner's detention therefore weighs in granting Petitioner relief.
Within the broad category of humanitarian considerations, the Court has also considered the current, unprecedented conditions of detention that Petitioner faces as a result of the COVID-19 virus; and while those conditions alone do not justify an individualized bond hearing, they reflect an aspect of his detention that weighs in favor of granting Petitioner relief.
Finally, the Court has considered the likelihood that Petitioner will be ultimately ordered removed. The BIA previously remanded an adverse determination of his eligibility to stay in the United States; and at this point, after one round of appeals, Petitioner has prevailed on the merits of his claims before the Immigration Judge. In sum, Petitioner's ultimate success on his application appears increasingly likely; and this factor weighs in favor of granting Petitioner relief. Therefore, for the above reasons, Petitioner's continued detention without an individualized bond hearing is constitutionally unreasonable.
As to the nature of that bond hearing, the Court has considered who should carry the ultimate burden of establishing whether the Petitioner is a flight risk or presents a danger to the community if released pending the outcome of his appeal. In that regard, the Court has considered the civil nature of detention under § 1225(b), see Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 ("The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect."), the procedures that apply to civil detention hearings, the procedures that apply to bond hearings under § 1226(a), the conduct that typically brings an alien into immigration proceedings under 1226(a) or (c), as compared to § 1225(b), and those procedures that apply within the criminal justice system. The Court has also considered the ongoing judicial debate concerning bond procedures within immigration proceedings since its decision in Mauricio-Vasquez v. Crawford , No. 1:16-CV-01422 (AJT/TCB), 2017 WL 1476349, at *5 (E.D. Va. Apr. 24, 2017) (summarizing the conflicting decisions). That debate has continued since the Court's decision in Mauricio-Vasquez. The Court concludes that at Petitioner's bond hearing under § 1225(b), due process requires that the Government bear the ultimate burden of persuasion that Petitioner is a flight risk or a danger to the community to justify denial of bond in light of the full range of bond conditions available under the circumstances. As the Court recently observed in Bah :
That conduct includes an entered alien's commission of crimes, the lack of status and an illegal presence in the United States and a demonstrated intention to remain here illegally.
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As a practical matter, an alien who receives a bond hearing bears an initial burden of production to come forward with evidence that favors release. The petitioner is best situated to produce evidence on issues such as his ties to the United States, family connections, and employment history. As a matter of Due Process, the government bears the ultimate burden of persuasion. In criminal pre-trial bond hearings, Due Process requires the government to prove "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Due Process does not require a different allocation of the burden of persuasion here. The government must prove "to the satisfaction of the [IJ] that" no condition or combination of conditions, including electronic monitoring, will reasonably assure the appearance of the person as required and the safety of any other person and the community. Although a criminal pre-trial bond hearing requires proof by clear and convincing evidence, ... proof to the satisfaction of the immigration judge may be equivalent to clear and convincing evidence in many cases. Accordingly, petitioner must receive a bond hearing in accordance with these procedures.
Bah v. Barr , 409 F. Supp. 3d 464, 472–73 (E.D. Va. 2019), appeal dismissed , No. 19-7653, 2020 WL 2126451 (4th Cir. Jan. 22, 2020) (internal citations omitted); see also Pensamiento v. McDonald , 315 F. Supp. 3d 684, 692 (D. Mass. 2018) (citing Singh v. Holder , 638 F.3d 1196, 1203 (9th Cir. 2011) ) ("Requiring a non-criminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the Due Process Clause.") (emphasis in original); Dubon Miranda v. Barr , 463 F.Supp.3d 632, 652–53 (D. Md. 2020) (directing immigration courts to conduct bond hearings that "comport with due process," allocating to the Government the burden of "justifying continued detention by clear and convincing evidence" and requiring that the Immigration Judge "consider the noncitizen's ability to pay a set bond amount and suitability for release on alternative conditions").
IV. CONCLUSION
For the foregoing reasons, Petitioner's detention has become constitutionally violative of the Due Process Clause, and he is entitled to an individualized bond hearing. Accordingly, it is hereby
ORDERED that Petitioner Didier Kofe Mbalivoto's Petition for Writ of Habeas Corpus [Doc. No. 1] be, and the same hereby is, GRANTED ; and it is further
ORDERED that Respondents provide an individualized bond hearing within 14 days from the date of this Order, at which the Respondents bear the burden of showing to the satisfaction of the Immigration Judge that no conditions or combination of conditions will reasonably assure the appearance of the Petitioner as required and the safety of any other person and the community.