Opinion
2:23-CV-344-BHS-DWC
08-01-2023
SANTIAGO ORTUNO-PEREZ, Petitioner, v. ICE FIELD OFFICE DIRECTOR, Respondent.
Noting Date: August 18, 2023
REPORT AND RECOMMENDATION
DAVID W. CHRISTEL, CHIEF UNITED STATES MAGISTRATE JUDGE
Petitioner Santiago Ortuno-Perez, who is currently detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in Tacoma, Washington and is proceeding pro se, brings this 28 U.S.C. § 2241 habeas action contending his detention has been prolonged. Dkt. 1. Petitioner seeks immediate release from detention, or a bond hearing. Dkta. 1 at 2. Currently before the Court is the Government's habeas return and motion to dismiss. Dkt. 7.
Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends the Government's motion to dismiss be GRANTED and Petitioner's habeas Petition be DENIED.
I. BACKGROUND
A. Immigration Proceedings
Petitioner is a native and citizen of Mexico who entered the United States without inspection in 1998. Dkt. 8 at ¶ 3. Prior to his current immigration matter, Petitioner was the subject of removal proceedings in 2009 (“2009 Matter”). Id.; Dkt. 9-2. Petitioner was released on bond during the 2009 Matter, and the proceedings were terminated in 2010 without prejudice after Petitioner was issued a non-immigrant visa authorizing his temporary presence in the United States until November 3, 2014. Dkt. 8 at ¶¶ 4, 5; Dkt. 9-3; Dkt. 9-4.
Petitioner was arrested in 2013 and convicted in 2014 on a charge of second degree murder. Dkt. 8 at ¶ 7; Dkt. 9-5. The conviction was later reversed on appeal, and the charges were dismissed on July 22, 2019 after the State elected not to re-try Petitioner. Dkt. 8 at ¶¶ 8, 9; Dkt. 9-5. However, Petitioner's non-immigrant visa status expired on November 3, 2014, while he was in criminal custody. Dkt. 8 at ¶ 7.
On August 2, 2019-after Petitioner was released from criminal custody-ICE took Petitioner into custody and commenced immigration proceedings. Dkt. 8 at ¶ 10. ICE served Petitioner with a Notice to Appear before the immigration court (“NTA”), charging Petitioner was removable under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for longer than permitted. Dkt. 8 at ¶ 10; Dkt. 9-8. Petitioner's immigration matter has proceeded through several appeals and remands since that time, during which Petitioner has, through counsel, requested and obtained several extensions. Dkt. 8 at ¶¶ 13, 19, 30, 41.
The Immigration Judge (“IJ”) held an evidentiary hearing on December 5, 2019 and issued a written decision ordering Petitioner to be removed to Mexico. Id. at ¶¶16, 17. The Board of Immigration Appeals (“BIA”) upheld the IJ's removal order on May 28, 2020. Id. at ¶ 20. Petitioner appealed to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which issued a temporary stay of removal that remains in place. Id. at ¶ 21. On November 10, 2021, the Ninth Circuit remanded Petitioner's immigration proceeding to the BIA for further proceedings based upon an intervening change in BIA precedent. Id. at ¶ 30. The BIA remanded the matter to the IJ for further fact-finding and on December 20, 2022 the IJ issued a decision denying Petitioner's requests to terminate his removal proceedings. Id. at ¶ 39. Petitioner filed an appeal of that order, which remains pending with the BIA. Id. at ¶¶ 40, 44.
B. Bond Hearings and Other Custody Determinations
Petitioner has been detained since ICE took him into custody in August 2019 and made its initial custody determination. Dkt. 9-7. During this time, Petitioner has had two bond hearings, at which he was represented by counsel and was permitted to submit evidence, and several additional custody determinations.
On October 29, 2019, the IJ conducted a bond hearing and issued a written memorandum decision denying Petitioner's request for custody redetermination. Dkt. 9-10. The IJ noted Petitioner “has an extensive criminal history,” recounting the following:
• 2007 arrest for DUI with a conviction of reckless driving;
• 2008 conviction of possession of a dangerous weapon;
• 2008 arrest for DUI with conviction of negligent driving;
• 2008 conviction of minor in possession and consumption of liquor;
• 2008 arrest for DUI and deferred prosecution;
• 2010 conviction of minor in possession;
• 2010 conviction of ignition interlock violation;
• 2011 charge of protection order violation that was dismissed;
• 2012 conviction of DUI.
Dkt. 9-10 at 6. The IJ also discussed Petitioner's arrest and conviction of second degree murder, which was overturned on appeal after Petitioner served six years of his 280-month sentence. Id. The IJ noted Petitioner was a “known member of the Callejones Escondidos street gang,” and the victim was known to be a member of a rival gang. Id. The IJ found, in light of Petitioner's “overall criminal history and nature,” that Petitioner had “not met his burden to demonstrate he is not a danger to the community.” Id. at 7.
Petitioner, through counsel, appealed the bond denial to the BIA. Dkt. 9-11 at 2. The BIA dismissed the appeal in a written decision on October 10, 2020, noting Petitioner's “lengthy” criminal history, as well as his dismissed conviction for the violent murder of a rival gang member. Id. Although the conviction had been overturned, the BIA noted its precedent does not limit an IJ to considering only convictions in custody redeterminations evaluating a non-citizen's danger to the community. Id. at 3. The BIA concluded Petitioner had not met his burden of establishing he was not a danger to the community. Id.
On January 8, 2021, Petitioner's counsel requested a second bond hearing and submitted evidence. Dkt. 9-13. The IJ held a bond hearing on January 27, 2021. Dkt. 9-15. At that hearing, the IJ placed the burden of proof on the Government, consistent with then-applicable Ninth Circuit law.Dkt. 9-16. The IJ found the Government had met its burden to establish Petitioner was “a danger and a flight risk.” Dkt. 9-16 at 2. Petitioner did not appeal the IJ's ruling. Dkt. 8 at ¶ 5.
At that time, Ninth Circuit authority interpreted 8 U.S.C. § 1226(a) to require bond hearings every six months at which the Government bore the burden to prove danger and flight risk by clear and convincing evidence. Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008); Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). The Supreme Court subsequently held there was no statutory right to periodic bond hearings at which the Government bore the burden to prove the necessity of continued detention. Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830, 846-48 (2018).
Because no appeal was filed, the IJ did not issue a memorandum decision. Dkt. 8 at ¶ 5.
In addition to his two bond hearings, Petitioner has also received several additional custody reviews-on February 4, 2022, May 10, 2022 and July 29, 2022. Dkts. 9-17, 9-18, 9-19. Each concluded Petitioner would remain detained due to his risk to public safety. Id.
C. Federal Habeas Petition
On March 8, 2023, Petitioner initiated this matter. Dkt. 1. Petitioner seeks release from custody or another bond hearing at which the burden of proof is placed upon the Government. Dkt. 1 at 2; Dkt. 13. Respondent has filed a return memorandum and motion to dismiss, Dkt. 7. Petitioner has filed a response. Dkt. 13. Respondent has not filed an optional reply.
II. DISCUSSION
A. Statutory Basis for Petitioner's Detention
Title 8 U.S.C. § 1226 provides the framework for the arrest, detention, and release of noncitizens who are present in the United States and have been placed in removal proceedings. Avilez v. Garland, 69 F.4th 525, 529-530 (9th Cir. 2023). Section 1226(a) grants DHS discretionary authority to arrest and either to detain, or to release on bond, noncitizens “pending removal proceedings,” unless the noncitizen falls within one of the categories of criminals described in § 1226(c), for whom detention is mandatory. 8 U.S.C. § 1226(a); Jennings, 138 S.Ct. at 846-48. The parties here agree Petitioner is held under Section 1226(a) and therefore subject to discretionary detention. Dkt. 1 at 3; Dkt. 7 at 1.
Although the relevant statutory sections refer to the Attorney General, the Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116 Stat. 2135 (2002), transferred most immigration law enforcement functions from the Department of Justice (“DOJ”) to the Department of Homeland Security (“DHS”), while the DOJ's Executive Office for Immigration Review retained its role in administering immigration courts and the BIA. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003).
When a noncitizen is arrested and taken into immigration custody pursuant to Section 1226(a), ICE makes an initial custody determination, including the setting of bond. See 8 C.F.R. § 236.1(c)(8). After the initial custody determination, the detainee may request a bond redetermination by an IJ. 8 C.F.R. § 236.1(d)(1). At the bond redetermination hearing, the burden is on the detainee to show to the satisfaction of the IJ that he warrants release on bond. See In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). In making a bond decision under § 1226(a), an IJ must consider whether the detainee “is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” Id. (citing In re Patel, 15 I. & N. Dec. 666 (BIA 1976)). An IJ also may consider a number of discretionary factors, including: (1) whether the detainee has a fixed address in the United States; (2) the detainee's length of residence in the United States; (3) the detainee's family ties in the United States, and whether they may entitle the detainee to reside permanently in the United States in the future; (4) the detainee's employment history; (5) the detainee's record of appearance in court; (6) the detainee's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the detainee's history of immigration violations; (8) any attempts by the detainee to flee persecution or otherwise escape authorities; and (9) the detainee's manner of entry to the United States. Id.
If the IJ denies bond, the detainee may appeal to the BIA. 8 C.F.R. § 236.1(d)(3). If the BIA affirms the IJ's decision, the detainee may seek habeas relief from the district court. Leonardo v. Crawford, 646 F.3d 1157, 1159-61 (9th Cir. 2011); Sun v. Ashcroft, 370 F.3d 932, 941 (9th Cir. 2004). Federal district courts have jurisdiction to review bond hearing determinations for constitutional claims and legal error, but they cannot second guess an IJ's discretionary judgment regarding the application of § 1226(a). Martinez v. Clark, 36 F.4th 1219, 1224 (9th Cir. 2022); 8 U.S.C. § 1226(e).
Once an IJ has made an initial bond redetermination, a detainee may seek a subsequent bond redetermination, but must do so in writing and must show the detainee's circumstances have changed materially since the prior bond redetermination. 8 C.F.R. § 1003.19(e).
Here, Petitioner argues he should be released because the IJ erred in finding he was a danger to the community. Dkt. 13 at 1. But “an immigration court's determination that a noncitizen is a danger to the community is a ‘discretionary judgment' not subject to review.” Martinez v. Clark, 36 F.4th 1219, 1224 (9th Cir. 2022).
Instead, a noncitizen detained under § 1226(a) is entitled to release only if he can show his detention is indefinite within the meaning of Zadvydas v. Davis, 533 U.S. 678 (2001). See Prieto-Romero v. Clark, 534 F.3d 1053, 1062-63 (9th Cir. 2008). In Prieto-Romero, the Ninth Circuit held the petitioner's detention was not indefinite because the government could repatriate him to Mexico if his petition for review was unsuccessful. Id. Similarly, here, the Government has presented evidence it will be able to repatriate Petitioner to Mexico if he is ultimately ordered removed. Dkt. 8 at ¶ 43. Accordingly, Petitioner's removal is not indefinite, and he is not entitled to release.
However, even if Petitioner's detention is statutorily authorized, the Court must determine whether it comports with due process.
B. Due Process
Petitioner contends his detention has become prolonged and he should be provided an additional bond hearing at which the burden of proof is shifted to the Government. Dkt. 13 at 1.
Until recently, Ninth Circuit jurisprudence required noncitizens detained under § 1226(a) to be provided automatic bond hearings every six months at which the government was required to justify continued detention by clear and convincing evidence. Rodriguez v. Robbins, 804 F.3d 1060, 1084-85, 1087 (9th Cir. 2015) (“Rodriguez III”), rev'd sub nom. Jennings v. Rodriguez, 138 S.Ct. 830 (2018). The Supreme Court reversed, explaining the Ninth Circuit had misapplied the canon of constitutional avoidance and “[n]othing in § 1226(a)'s text . . . even remotely supports the imposition of” periodic bond hearings where the government bears the burden. Jennings, 138 S.Ct. at 847. The Supreme Court did not decide whether the Constitution requires such periodic hearings and remanded to the Ninth Circuit for consideration of that question.
The Ninth Circuit subsequently remanded to the district court. Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018) (“Rodriguez IV”).
1. Applicable Test
Where a petitioner has already had a bond hearing, courts in this District have applied the test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) to determine whether an additional bond hearing is required. See, e.g., Madrigal v. Nielsen, No. C18-843-JCC-JPD, 2018 WL 4732469, at *3 (W.D. Wash. Aug. 31, 2018), report and recommendation adopted, 2018 WL 4700552 (W.D. Wash. Oct. 1, 2018) (applying Mathews due process analysis to determine whether due process required subsequent bond hearing). Mathews requires courts to consider three distinct factors: (1) the private interest at stake; (2) the government's interest, including the function involved and the fiscal and administrative burdens that any additional procedural requirements would entail; and (3) the risk of an erroneous deprivation of the private interest at stake through the procedures used, and the probable value, if any, of additional procedural safeguards. 424 U.S. at 335.
In contrast, in cases (unlike this case) where a petitioner has not had a prior bond hearing, courts in this District apply a multi-factor test. See, e.g., Banda v. McAleenan, 385 F.Supp.3d 1099, 1106-07 (W.D. Wash. 2019).
The Ninth Circuit recently applied the Matthews test to evaluate whether the Constitution required providing a petitioner detained under § 1226(a) with an additional bond hearing. Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022). The court noted other courts have regularly applied the Mathews test when evaluating due process challenges to immigration detention-and observed that Mathews “remains a flexible test that can and must account for the heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 F. 4th at 1206-07. The court therefore assumed-without deciding-that Mathews applied, and concluded the procedures the petitioner had already received under § 1226(a) satisfied due process. Id.
The Court therefore considers the Mathews factors, as they are explained in Rodriguez Diaz.
2. Applying the Matthews Test
Applying the Matthews test, the Court concludes due process does not require an additional bond hearing at this time.
a. Private Interest
“As to the first factor, the private interest at issue here is ‘fundamental': freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.'” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (addressing § 1226(a) detainees). Here, Petitioner has been detained for a total of approximately 48 months-far longer than the 18-month detention the court in Rodriguez Diaz assumed would qualify as “prolonged.”
The court in Rodriguez Diaz, while acknowledging an 18-month detention weighed in petitioner's favor, cautioned that prior case law using a 6-month benchmark arose in a context in which no prior bond hearings had taken place. Rodriguez Diaz, 53 F.4th at 1207. The court further cautioned that “we cannot simply count [petitioner's] months of detention and leave it at that.” Id. at 1208. Instead, the court must also consider the process petitioner received during the time he was detained, the further process available to him, and “the fact that his detention was prolonged due to his decision to challenge his removal order.” Id.
The first factor weighs in petitioner's favor, but in light of the process available to petitioner during his confinement and the contribution to the delays in adjudicating his underlying removal proceedings caused by petitioner's litigation choices, this factor should not be accorded overwhelming weight.
b. Government's Interest
The Government argues it has a strong interest in detaining noncitizens with criminal backgrounds, like Petitioner, to ensure they complete their removal proceedings. Dkt. 7 at 16, citing Demore v. Kim, 538 U.S. 510, 520 (2003). The Government argues its interest is particularly compelling in light of Petitioner's “escalating” criminal activity since his prior release on an immigration bond during the 2009 Matter. Dkt. 7 at 16. The Government further contends its interest in detaining petitioner increases as his case proceeds. Dkt. 7 at18 (citing Rodriguez Diaz, 53 F.4th at 1208 (the Government's “interests are of the highest order that only increase with the passage of time”)).
The second factor weighs in the Government's favor. The Court agrees the Government has a strong interest in detaining noncitizens whose criminal history demonstrates a danger to the community, and in ensuring the successful implementation of removal orders. As in Rodriguez Diaz, the Court finds these interests are significant. Id. at 1209.
c. Risk of Erroneous Deprivation/Value of Additional Safeguards
Rodriguez Diaz held the statutory procedures provided under § 1226(a) were sufficient to protect petitioner's liberty interests and mitigated the risk of erroneous deprivation. Id. at 12091210. Petitioner here received even more than the procedures held sufficient in Rodriguez Diaz.
First, upon petitioner's initial detention, an ICE officer made an individualized custody determination. Dkt. 9-7. Petitioner then requested and received an individualized bond hearing at which he was represented by counsel and submitted evidence. Dkt. 9-10. As required by the statutory scheme, Petitioner bore the burden of proof at this hearing to demonstrate he did not pose a danger or a flight risk. See Dkt. 9-10. The IJ found Petitioner had not met his burden and issued a written memorandum decision denying release on bond. Id. Petitioner was then afforded an appeal to the BIA, which also made an individualized determination of his safety and flight risk, and provided a written determination. Dkt. 9-11. This process matches the procedures the Ninth Circuit found constitutionally sufficient in Rodriguez Diaz. 53 F.4th at 1209-1210, 1213.
Second, Petitioner requested and received a second bond hearing, at which the burden of proof was shifted to the Government. Dkts. 9-15, 9-16. After the IJ found the Government had met its burden to establish Petitioner was a danger and a flight risk (Dkt. 9-16), Petitioner had the right to appeal the IJ's decision this decision to the BIA. 8 C.F.R. § 236.1(d)(3). However, he did not do so. Dkt. 8 at ¶ 26.
Finally, Petitioner retained the right to seek additional bond hearings upon a showing of changed circumstances. See 8 C.F.R. § 1003.19(e). In addition, he received additional reviews of his custody status. Dkts. 9-17, 9-18, 9-19.
Petitioner argues he should receive an additional bond hearing with the burden of proof shifted to the Government, citing Juarez v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436 (W.D. Wash. May 5, 2021), report and recommendation adopted, No. 20-1660-RJB-MLP, 2021 WL 2322823 (W.D. Wash. June 7, 2021). However, Juarez is distinct from this case because there, the petitioner was subject to mandatory detention and had never received a bond hearing. 2021 WL 2323436 at *2. Moreover, Juarez was decided before the Ninth Circuit held in Rodriguez Diaz that due process does not require an additional bond proceeding with the burden of proof on the Government in cases, like Petitioner's, where a detainee has already received a bond hearing in which he bore the burden of proof. Rodriguez Diaz, 53 F.4th at 1193. And finally, Petitioner has already received a second bond hearing at which the burden was placed upon the Government. Dkt. 9-16.
In short, Petitioner received all of the procedures the Ninth Circuit found were sufficient to satisfy due process in Rodriguez Diaz, 53 F.4th at 1209-1210, 1213. Indeed, he received even more-because he received an additional bond hearing where the Government bore the burden of proof. This is an additional protection the Ninth Circuit has expressly held is not required by due process where, as here, a petitioner has had access to bond determination procedures from the onset of his detention. Id., 53 F.4th at 1210-11.
Petitioner received process matching-and exceeding-that which the court found sufficient to meet due process requirements in Rodriguez Diaz. The third factor therefore weighs in the Government's favor.
d. Weighing the Factors
Two of the Mathews factors weigh in favor of the Government, and one factor weighs in petitioner's favor. On balance, the Mathews test supports a finding that petitioner's detention does not violate his rights under the Due Process clause. Petitioner's habeas petition should therefore be denied.
III. CONCLUSION
The Court recommends the Government's motion to dismiss (Dkt. 7) be GRANTED, Petitioner's habeas Petition (Dkt 1) be DENIED, and this action be DISMISSED with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on August 18, 2023, as noted in the caption.