Opinion
Case No. 20-cv-2362
2021-02-08
Irbin ROCHA-SANCHEZ, Petitioner, v. Chad KOLITWENZEW, Respondent, United States of America, Interested Party.
Ruben Loyo, National Immigrant Justice Center, Amber Nicole Hallett, Mandel Legal Aid Clinic, Chicago, IL, for Petitioner. James R. Rowe, II, Nancy Ann Nicholson, Kankakee County States Attorney, Kankakee, IL, for Respondent. Kimberly A. Klein, US Attorney, Peoria, IL, W. Scott Simpson, United States Attorney's Office, Springfield, IL, for Interested Party.
Ruben Loyo, National Immigrant Justice Center, Amber Nicole Hallett, Mandel Legal Aid Clinic, Chicago, IL, for Petitioner.
James R. Rowe, II, Nancy Ann Nicholson, Kankakee County States Attorney, Kankakee, IL, for Respondent.
Kimberly A. Klein, US Attorney, Peoria, IL, W. Scott Simpson, United States Attorney's Office, Springfield, IL, for Interested Party.
ORDER AND OPINION
SUE E. MYERSCOUGH, United States District Judge:
Before the Court is Petitioner Irbin Rocha-Sanchez's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (d/e 1). Mr. Rocha-Sanchez argues that his prolonged mandatory detention under 8 U.S.C. § 1226(c) without an individualized bond hearing has become unreasonable and now violates his substantive due process rights. He also argues that the limited hearing he received to determine whether he was properly detained under § 1226(c) violated procedural due process rights because the Immigration Judge did not require the Government to bear the burden of establishing by clear and convincing evidence that Petitioner was subject to mandatory detention.
For the reasons set forth below, the Petition (d/e 1) is GRANTED and the Court orders that Petitioner be granted an individualized bond hearing before an immigration judge where the Government bears the burden of showing by clear and convincing evidence that Mr. Rocha-Sanchez's continued detention is necessary to prevent a risk of flight or a threat to public safety.
I. BACKGROUND
Mr. Rocha-Sanchez has been detained by the U.S. Immigration and Customs Enforcement (ICE) since October 1, 2019. He is currently being held at the Jerome Combs Detention Center (JCDC) in Kankakee, Illinois, while his immigration proceedings are on appeal to the Bureau of Immigration Appeals (BIA).
A. Mr. Rocha-Sanchez's Criminal and Immigration Background.
Mr. Rocha-Sanchez is a twenty-seven-year-old Mexican citizen who entered the United States without inspection as a child in 2004. He has one child, Iriana, born in 2011. Pet. ¶29 (d/e 1). As a juvenile, Mr. Rocha-Sanchez had multiple encounters with law enforcement and at times was adjudicated delinquent. See Resp. at 5-6 (d/e 8) (summarizing juvenile arrests). On January 1, 2012, one day after he turned eighteen, Mr. Rocha-Sanchez was arrested for an ordinance violation by the Aurora, Illinois Police Department's Fox Valley Gang Task Force after they discovered Mr. Rocha-Sanchez at a party with known members of a criminal street gang. Id. The Task Force notified ICE of Mr. Rocha-Sanchez's undocumented presence in the United States. Id.
On February 26, 2012, ICE took Mr. Rocha-Sanchez into custody. See U.S. Resp., Attachment 2, Declaration of Deportation Officer Amy Mercer (hereinafter "Mercer Decl.") ¶7 (d/e 8-9). On February 27, 2012, ICE served Mr. Rocha-Sanchez with a Notice to Appear (NTA), charging him as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being admitted or paroled by an Immigration Officer. Mercer Decl. ¶8. Pursuant to 8 U.S.C. § 1226(a), ICE initially determined that Mr. Rocha-Sanchez was a danger to the public and should be held without bond. Id. However, on April 30, 2012, the Immigration Judge ordered Mr. Rocha-Sanchez released on his own recognizance. Mercer Decl. ¶9. Two months later, on or about June 25, 2012, Mr. Rocha-Sanchez was arrested and charged with Illinois attempted armed robbery, aggravated battery in a public place, and mob action. Id.; Pet. ¶30. Mr. Rocha-Sanchez pled guilty to one count of mob action under 720 ILCS 5/25-1(a)(1). Pet. ¶30. The state court sentence Mr. Rocha-Sanchez to one year in prison. Id.
When Mr. Rocha-Sanchez was released from prison, on or about December 27, 2012, he was again detained by ICE. Id. ¶12. However, Mr. Rocha-Sanchez was able to adjust his status through a special immigrant juvenile petition, and, on April 9, 2013, he became a lawful permanent resident of the United States. Pet. ¶32-33; Resp. at 7.
Mr. Rocha-Sanchez reports that after becoming a lawful permanent resident, he continued working a variety of jobs and was able to financially support his daughter, Iriana. Pet. ¶35.
Mr. Rocha-Sanchez, however, continued to have encounters with law enforcement, including an arrest for disorderly conduct and an arrest for retail theft and possession of liquor by a minor. See Mercer Decl. ¶¶16-18. And, on November 28, 2014, Mr. Rocha-Sanchez was arrested by Illinois law enforcement and charged with possession of a stolen vehicle. Id. ¶18; Pet. ¶37. He was released from state custody on electronic monitoring on February 24, 2015. Mercer Decl. ¶19. Mr. Rocha-Sanchez pled guilty on October 2, 2015, and was sentenced to twenty-four months' probation. Id. ¶21.
However, Mr. Rocha-Sanchez did not successfully complete his parole. After failing to appear at a December 3, 2015 hearing, a warrant was issued for his arrest and the prosecutor filed a petition for violation of Mr. Rocha-Sanchez's probation. Mercer Decl. ¶22. On August 23, 2016, Mr. Rocha-Sanchez was arrested on the warrant for the violation of his probation, but he was released on bond on or about January 31, 2017. Mercer Decl. ¶¶23-24. Again on March 28, 2017, Mr. Rocha-Sanchez violated the terms of his probation and a petition for violation of probation was filed by the prosecutor. Mercer Decl. ¶25. Illinois law enforcement took him into custody on or about April 5, 2017 and the state court subsequently released him on bond. Id. Mr. Rocha-Sanchez, however, failed to appear at his May 11, 2017 court date, and a warrant was issued for his arrest. Id. Finally, on April 5, 2018, Mr. Rocha-Sanchez was arrested on this warrant and was not granted bond. Mercer Decl. ¶27. On April 19, 2018, Mr. Rocha-Sanchez pled guilty to the violation of probation petition and his original sentence of probation for the possession of a stolen vehicle was revoked. Mercer Decl. ¶28. The state court then sentenced him to four years' imprisonment in the Illinois Department of Corrections and two years' supervised release. Id.
The state released Mr. Rocha-Sanchez on mandatory supervised release in October 2018. Pet. ¶40. In January 2019, in violation of the terms of his probation, Mr. Rocha-Sanchez went to California to work on a construction job. Pet. ¶41. He returned to Illinois in July 2019. Pet. ¶41. In August 2019, Mr. Rocha-Sanchez was riding in a car that was pulled over for a traffic violation. Pet. ¶42. Mr. Rocha-Sanchez was detained on an outstanding warrant for violating his probation at the Stateville Correctional Center in Joliet, Illinois. Pet. ¶43.
The Illinois Parole Board decided to return Mr. Rocha-Sanchez to supervised release and he was released from the Illinois Department of Corrections on October 1, 2019.
B. Mr. Rocha-Sanchez's Current Immigration Proceedings
Upon his release from the Illinois Department of Corrections, ICE took custody of Mr. Rocha-Sanchez. Pet. ¶¶44-45. ICE gave Mr. Rocha-Sanchez a Notice to Appear (NTA), which charged him as removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude committed within five years after admission to the United States, for which a sentence of one year or longer may be imposed. Mercer Decl. ¶29; Pet. ¶46-47; Pet. Ex. 1, Notice to Appear (d/e 1-3). Additionally, the NTA charged that Mr. Rocha-Sanchez was removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony. Mercer Decl. ¶29; Pet. ¶46-47; Pet. Ex. 1, Notice to Appear.
Due to these charges, ICE determined that Mr. Rocha-Sanchez was subject to mandatory detention without a bond hearing pursuant to 8 U.S.C. § 1226(c). Mercer Decl. ¶30. Specifically, ICE found Mr. Rocha-Sanchez subject to mandatory custody under 8 U.S.C. § 1226(c)(1)(B) for having been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) and under 8 U.S.C. § 1226(c)(1)(C) for having been convicted of a crime involving moral turpitude committed within five years of admission for which a sentence of one year or longer was imposed under 8 U.S.C. § 1227(a)(2)(A)(i).
Mr. Rocha-Sanchez appeared at his initial master calendar hearing without counsel before the detained Chicago Immigration Court on November 6, 2019 and at a second master calendar hearing on November 26, 2019. Mercer Decl. ¶31. At both hearings, the case was continued at Mr. Rocha-Sanchez's request in order to obtain an attorney. Id.
On December 18, 2019, Mr. Rocha-Sanchez appeared at a master calendar hearing with counsel and admitted the factual allegations contained in the NTA, but he denied the charges of removability against him. Mercer Decl. ¶32; Pet. ¶48. On January 15, 2020, Petitioner filed a motion to terminate removal proceedings, arguing he was not removable as charged because his 2018 conviction for possession of a stolen vehicle was neither a crime involving moral turpitude nor an aggravated felony. Mercer Decl. ¶33; Pet. ¶48. Specifically, he argued that his 2018 Illinois conviction for possession of a stolen vehicle lacked the requisite mens rea and intent to deprive another permanently of property to constitute an aggravated felony or a crime involving moral turpitude. Pet. ¶48.
However, on February 27, 2020, the Immigration Judge denied Petitioner's motion to terminate, finding that Petitioner's conviction for possession of a stolen vehicle categorially qualified as a crime involving moral turpitude and an aggravated felony. Mercer Decl. ¶34; Pet. ¶49. The Immigration Judge also ordered Mr. Rocha-Sanchez removed to Mexico. Mercer Decl. ¶34; Pet. ¶49.
Mr. Rocha-Sanchez filed a motion to reconsider the Immigration Judge's denial of his motion to terminate on March 18, 2020, raising the same arguments previously made in his motion to terminate removal proceedings. Mercer Decl. ¶35; Pet. ¶50. On March 24, 2020, Mr. Rocha-Sanchez timely filed a Notice of Appeal of the Immigration Judge's decision with the Board of Immigration Appeals ("BIA"). Mercer Decl. ¶36; Pet. ¶50. The BIA issued a briefing schedule on August 6, 2020, and both parties timely submitted their briefs to the BIA on or before August 27, 2020. Mercer Decl. ¶37; Pet. ¶50. Because Mr. Rocha-Sanchez is detained, the Government believes that his case will be handled on an expedited basis. Mercer Decl. ¶38.
During his entire detention by ICE, Mr. Rocha-Sanchez has been housed in jail-like conditions, including sharing a cell with several other detainees. Pet. ¶52. In many respects, and in part due to the COVID-19 pandemic mitigation measures, Mr. Rocha-Sanchez finds his current conditions of detention worse than those he experienced when he was previously incarcerated or detained. Pet. ¶¶53-57. The Government has also reported that Jerome Combs Detention Center had an outbreak of COVID-19 in January 2021 in the immigration detention unit. See Supp. Resp. (d/e 11). The Government reported at the January 19, 2021 hearing that Mr. Rocha-Sanchez himself tested positive for COVID-19 on or about January 19, 2021.
On October 30, 2020, while Mr. Rocha-Sanchez's case was pending before the BIA, Mr. Rocha-Sanchez filed a motion for bond redetermination with the Immigration Court pursuant to Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Mercer Decl. ¶39. Under Matter of Joseph, a detainee may challenge ICE's mandatory detention determination by showing that the Government is "substantially unlikely" to prevail on its charge of removability. Mr. Rocha-Sanchez argued that burden should instead be on the Government to show by clear and convincing evidence that he was properly subject to mandatory detention. Pet. ¶59. On November 11, 2020, Mr. Rocha-Sanchez appeared before the Immigration Judge on his motion for bond redetermination. After a full hearing, the Immigration Judge denied Mr. Rocha-Sanchez's motion, finding that he was properly subject to mandatory custody pursuant to 8 U.S.C. § 1226(c) based on his conviction for possession of a stolen vehicle. Mercer Decl. ¶40.
Mr. Rocha-Sanchez's detention was also reviewed as part of the ongoing COVID-19 mediation efforts and in response to the April 20, 2020 preliminary injunction issued by the United States District Court for the Central District of California in Fraihat et al. v. U.S. Immigration and Customs Enforcement, et al., Case No. EDCV19-1546 (SHKx) (C.D. Cal. April 20, 2020). On both June 2, 2020 and November 16, 2020, ICE Enforcement and Removal Operations (ERO) determined that, aside from Mr. Rocha-Sanchez being subject to mandatory detention under 8 U.S.C. § 1226(c), Mr. Rocha-Sanchez should remain detained due to his lack of COVID-19 risk factors and because of his criminal history. Mercer Decl. ¶43-44.
C. Mr. Rocha-Sanchez's 28 U.S.C. § 2241 Petition.
Mr. Rocha-Sanchez filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on December 17, 2020. He argues that his mandatory detention of now-sixteen months without an individualized bond hearing violates his substantive due process rights under the Fifth Amendment. He also argues that the mandatory detention procedure under Matter of Joseph violates his procedural due process rights. Mr. Rocha-Sanchez requests that this Court order either his immediate release or an individualized bond hearing where the Government must prove by clear and convincing evidence that his detention is justified. The United States, which was named as Interested Party, filed a response (d/e 8) to Mr. Rocha-Sanchez's Petition on January 7, 2021. Mr. Rocha-Sanchez filed a reply (d/e 15) on January 14, 2021. After seeking leave, the United States also filed a sur-reply (d/e 15) on January 20, 2021. A hearing on the merits of the Petition was held on January 22, 2021.
II. DISCUSSION
A. Petitioner's Prolonged Mandatory Detention Without an Individualized Bond Hearing Has Become Unreasonable and Violates his Due Process Rights.
In order to prevail on a habeas corpus claim, a petitioner must demonstrate that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. Mr. Rocha-Sanchez first argues that his prolonged detention of sixteen months without an individualized bond hearing violates his Due Process rights under the Fifth Amendment. Mr. Rocha-Sanchez is being detained pursuant to 8 U.S.C. § 1226(c), which mandates a noncitizen's detention during their immigration proceedings if they have been convicted of certain crimes.
Federal courts have jurisdiction to review the constitutionality of a noncitizen's detention under § 1226(c). See Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018) ; Demore v. Kim, 538 U.S. 510, 517, 123 S. Ct. 1708, 1714, 155 L.Ed.2d 724 (2003). Moreover, noncitizens in removal proceedings are entitled to the protections of the Fifth Amendment. See Kim, 538 U.S. at 523, 123 S.Ct. 1708
In analyzing the post-removal order detention statute, 8 U.S.C. § 1231, the Supreme Court has previously held that a statute that authorized indefinite detention of a noncitizen could violate the Fifth Amendment's Due Process Clause. Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (holding that after a six-month presumptively reasonable period, a noncitizen's detention under the post-removal statute could only continue if there was a "significant likelihood of removal in the reasonably foreseeable future"). However, in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court rejected a facial challenge to the constitutionality of the statute at issue here, § 1226(c), finding that indefinite detention was not authorized under the statute because the detention has a "definite termination point," when the removal proceedings conclude. Id. at 529, 123 S. Ct. 1708, 1714. In Kim, the Supreme Court found that, unlike the statute in Zadvydas, the detention authorized under § 1226(c) was of a much shorter duration because, in the majority of cases, a removal proceeding takes fewer than ninety days and, if the removal order is appealed, that process only takes on average four months longer. Id.
However, Justice Kennedy's concurrence in Kim suggested that a noncitizen detained under § 1226(c) is "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, 1714 (Kennedy, J., concurring). Moreover, as the Seventh Circuit recognized in Gonzalez v. O'Connell, 355 F.3d 1010 (7th Cir. 2004), in Kim, "the detainees at issue conceded their deportability" and " Kim's holding was expressly premised on that fact." Id. at 1019. Accordingly, the Seventh Circuit explained that Kim "left open the question of whether mandatory detention ... is consistent with due process when a detainee makes a colorable claim that he is not in fact deportable." Id. at 1019–20.
Recently, in Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), the Supreme Court again addressed a challenge to § 1226(c) and held that an implicit "reasonableness" limitation of six-months before providing a bond hearing could not plausibly be read into the statute under the canon of constitutional avoidance. Id. at 847 (noting the differences between the language of §§ 1226(c) and 1231, in which the Supreme Court in Zadvydas did read an implicit reasonableness limitation). As Jennings noted, § 1226(c) "does not on its face limit the length of the detention it authorizes," as it only ends when immigration proceedings have been concluded and the noncitizen is either released or removed. Id. at 846. Jennings, however, did not address the constitutional question, but remanded that question to the Ninth Circuit. Id. at 851.
Since Jennings, district courts across the country, including this Court, have continued to grant habeas relief to petitioners detained under § 1226(c) after considering case-specific factors. The Third Circuit, the only appellate court to have addressed the issue post- Jennings, has also found that as-applied challenges to 1226(c) mandatory detention are still viable. In German Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020), the Third Circuit held that the circuit's previous precedent requiring individualized bond hearings for unreasonably prolonged detention under § 1226(c) was still good law after Jennings. 965 F.3d at 210 (citing Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 474-475 (3d Cir. 2015) ). In addition to the length of the detention, the Third Circuit considered three factors to determine whether the detention has become unreasonable: (1) "whether the detention is likely to continue;" (2) "the reasons for the delay, such as a detainee's request for continuances" and "whether either party made careless or bad-faith ‘errors in the proceedings that cause[d] unnecessary delay," but "an alien's good-faith challenge to his removal" should not be held against him; and (3) "whether the alien's conditions of confinement are ‘meaningfully different from criminal punishment." Id. at 211. Moreover, "as the length of detention grows" courts should give more weight to conditions of the noncitizen's confinement. Id.
This Court, and other district courts in the Seventh Circuit, have considered similar factors, including the overall length of the detention, the reason for the delay, the likelihood of eventual removal, the likely duration of future detention, and the conditions of detention. See, e.g., Favi v. Kolitwenzew, No. 20-cv-2087, 2020 WL 2114566, at *8 (C.D. Ill. May 4, 2020) (granting habeas relief for individual detained for nine months and opting to conduct bond hearing due to exigent circumstances); Vargas v. Beth, 378 F. Supp. 3d 716, 727 (E.D. Wis. 2019), appeal dismissed, No. 19-1965, 2019 WL 6133750 (7th Cir. July 18, 2019) (denying habeas relief on the merits where petitioner had no defense to his removal, but collecting factors courts have used to evaluate the reasonableness of detention). Parzych v. Prim, No. 19 C 50255, 2020 WL 996559, at *3 (N.D. Ill. Mar. 2, 2020) (granting habeas relief to individual detained for "three years without any obvious termination point of his removal proceedings"); Baez-Sanchez v. Kolitwenzew, 360 F. Supp. 3d 808, 815-16 (C.D. Ill. 2018) (granting habeas relief for individual detained for over four-years without an individualized bond hearing who had a "good-faith belief that he would not ultimately be removed" due to his pending visa petition).
Turning to those factors here, the Court finds that Mr. Rocha-Sanchez's sixteen-month detention has become unreasonably prolonged and can no longer be justified without an individualized bond hearing.
1. Length of Detention: Mr. Rocha-Sanchez's overall detention has been sixteen months so far—significantly longer than the ninety-day average assumed in Kim or the six-month presumed reasonable period of Zadvydas. See also Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108, at *1 (S.D.N.Y. July 25, 2018) (finding nine-month detention unreasonably prolonged); Misquitta v. Warden Pine Prairie ICE Processing Ctr., 353 F. Supp. 3d 518, 527 (W.D. La. 2018) (finding ten-month detention unreasonably prolonged).
2. Likely Duration of Future Detention: Mr. Rocha-Sanchez's detention is also likely to continue with no end date in sight. While the Government believes detained cases are being prioritized at the BIA, no one knows when a decision will be reached, and the BIA does not have a deadline to reach a decision. Moreover, if the BIA issues an adverse decision, Mr. Rocha-Sanchez has indicated he intends to appeal to the Seventh Circuit. An appeal to the Seventh Circuit would likely extend Mr. Rocha-Sanchez' detention significantly.
3. Reason for the Delay: The length of Mr. Rocha-Sanchez's detention is not the result of any careless or bad-faith errors on either party. Rather, the parties appear to agree that his immigration proceedings are moving along at what has become an average pace in the backlogged immigration system—although perhaps with a slight delay in the briefing schedule being set before the BIA. See Pet. Memo. at 6 (d/e 2). While there is no allegation that the Government has handled this removal case in an unreasonable way, it is entirely out of Mr. Rocha-Sanchez's control that appeals to the BIA now take significantly longer than the five-month period assumed in Kim. See also Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 475 (3d Cir. 2015) ("[I]t is possible that a detention may be unreasonable even though the Government has handled the removal case in a reasonable way.").
4. Conditions of Detention: The conditions of Mr. Rocha-Sanchez's detention further constrain the time that his detention without an individualized bond hearing should be considered reasonable. His detention has not been in conditions meaningfully different than a penal institution, despite its classification as "civil" detention. See also, Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 478 (3d Cir. 2015) ("As the length of the detention grows, the weight given to this aspect of his detention increases."). Mr. Rocha-Sanchez is being detained at a county jail, and the COVID-19 pandemic has undoubtedly made his conditions of confinement worse. While the Jerome Combs Detention Center implemented laudable efforts to prevent an outbreak of COVID-19 in its facility and was successful for many months, Jerome Combs has now reported that an outbreak has occurred in the immigrant detention units. At the scheduling conference on January 19, 2021, the Government reported that Mr. Rocha-Sanchez had recently tested positive for COVID-19. Moreover, the necessary preventive measures implemented by Jerome Combs Detention Center have made living conditions for detainees even more restrictive. Mr. Rocha-Sanchez states that he has not been allowed to step outside for more than one year and he is unable to have visitations. See Pet. ¶¶52-58. While the Court in no way suggests that these measures are not necessary, the Court finds that the conditions of confinement during the COVID-19 pandemic make prolonged detention in a jail-like setting even more susceptible to as-applied constitutional challenges.
5. The likelihood of eventual removal: The final factor, and the one that is most contested here, is the likelihood of eventual removal. If Mr. Rocha-Sanchez's appeal is frivolous, intended to "postpon[e] inevitable deportation," or to try to "game the system," then his detention is not unreasonable. Baez-Sanchez v. Kolitwenzew, 360 F. Supp. 3d 808, 816 (C.D. Ill. 2018). If he has no colorable defense to eventual removal, then he holds the keys to his own release: he could simply concede removability and be released from detention through removal to his country of origin. An immigrant detainee without a colorable defense to removal has no right to release into the United States and cannot create one by delaying the process with a meritless defense to removal.
Here, Mr. Rocha-Sanchez argues that he is not removable as charged because his 2018 Illinois conviction for possession of a stolen vehicle, in violation of 625 ILCS 5/4-103(a)(1), is neither a crime involving moral turpitude nor an aggravated felony. Under 625 ILCS 5/4-103(a)(1), it is a crime for "[a] person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted." Courts use the categorical approach to determine whether a state criminal offense qualifies as a crime involving moral turpitude or an aggravated felony under the INA. See Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S. Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). "Under this approach we look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony." Id.
The Seventh Circuit has previously held that Illinois possession of a stolen vehicle qualifies as an aggravated felony under the INA. Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1004 (7th Cir. 2001). Under the INA, an "aggravated felony" is defined, among other things, as "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). In Hernandez-Mancilla, the Seventh Circuit held "that the modern, generic, and broad definition of the entire phrase ‘theft offense (including receipt of stolen property)’ is a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Id. at 1009. The Seventh Circuit then held that Illinois possession of a stolen vehicle fit this definition. Id. at 1010.
Notwithstanding this case law, Mr. Rocha-Sanchez argues that his conviction for possession of a stolen vehicle lacked the requisite mens rea and lacked the element of intent to deprive another permanently of property to constitute an aggravated felony or a crime involving moral turpitude.
In support of Mr. Rocha-Sanchez's intent argument, he points to recent case law in the Ninth Circuit and in the BIA that has held that to be a crime involving moral turpitude or an aggravated felony, the state statute must require a finding of intent to deprive the owner permanently, or substantially, of possession. Pet. Memo. at 19 (d/e 2), citing Matter of Deang, 27 I&N Dec. 57, 59 (BIA 2017) (holding that intent to deprive permanently is required for an aggravated felony); Matter of Jurado-Delgado, 24 I&N Dec. 29, 33 (BIA 2006) (reaching same holding in moral turpitude analysis); Castillo-Cruz v. Holder, 581 F.3d 1154, 1160-61 (9th Cir. 2009). And he argues that the Illinois statute does not require an intent to deprive the owner permanently or substantially of possession because, he argues, mere joyriding is criminalized under the statute. Mr. Rocha-Sanchez points to case law that together indicates that it may be possible to be convicted for possession of a converted vehicle even if you intended to possess it only temporarily—for a joyride—if the vehicle had already been stolen or converted by someone with an intent to permanently deprive the vehicle's owner of its use or benefit. See People v. Washington, 184 Ill.App.3d 703, 133 Ill.Dec. 148, 540 N.E.2d 1014, 1017 (1989) ("Whether defendant intended to permanently deprive the car's owner of its use or benefit has no bearing on the car's character as stolen property. While, as defendant contends, the jury could have believed his statement that he intended only to use the car for transportation and to return it where he found it, this would not be exculpatory in view of the evidence that the car was already stolen at the time he obtained possession."); People v. Gengler, 251 Ill.App.3d 213, 190 Ill.Dec. 107, 620 N.E.2d 1368, 1374 (1993) ("We have specifically rejected the assertion that conversion cannot be found where there is only a temporary use of property without causing harm to it.").
However, as the Government highlights, the Immigration Judge, after a review of Illinois case law, found that there was no reasonable probability that joyriding or similar conduct could sustain a conviction under the Illinois statute. See Decision of Immigration Judge (d/e 15-1) (citing People v. Henry, 203 Ill.App.3d 278, 148 Ill.Dec. 608, 560 N.E.2d 1205, 1206-07 (1990) ; In re T.A.B., 181 Ill.App.3d 581, 130 Ill.Dec. 352, 537 N.E.2d 419, 422 (1989) ).
Mr. Rocha-Sanchez also argues that the Illinois possession of stolen vehicle statute allows for a conviction where the defendant is found to have a less culpable mens rea than is required in order for a crime to be an aggravated felony or a crime involving moral turpitude. See Matter of Deang, 27 I&N Dec. 57, 62-3 (BIA 2017) (an aggravated felony stolen property offense requires a mens rea of knowledge or belief that the property was stolen); Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016) (a crime of moral turpitude requires a mens rea of specific intent, knowledge, willfulness, or recklessness). He argues that a mens rea of having "reason to believe" the property was stolen does not suffice under either standard. See Deang, 27 I&N at 59; Silva-Trevino, 26 I&N Dec. at 834. The statute does criminalize possession of a vehicle "knowing it to have been stolen or converted," but it also states that "it may be inferred ... that a person exercising exclusive unexplained possession over a stolen or converted vehicle ... has knowledge that such vehicle or essential part is stolen or converted." 625 ILCS 5/4-103(a)(1).
The Government, however, argues that is a permissible "evidentiary inference" that does not negate the "knowing" mens rea. See Sur-Reply at 6 (d/e 15) (citing State v. Funches, 212 Ill.2d 334, 288 Ill.Dec. 654, 818 N.E.2d 342, 347 (2004) ; People v. Ward, 194. Ill. App. 3d 229, 236, 141 Ill.Dec. 162, 550 N.E.2d 1208 (1990)).
Nonetheless, Mr. Rocha-Sanchez is confident that his argument has merit and is substantially likely to succeed on appeal. This Court, however, is not tasked with determining the ultimate merits of his immigration case—a task wholly outside the jurisdiction of this Court. Rather, this Court only has to ask whether Mr. Rocha-Sanchez has a "colorable" or "good-faith" claim that he will not be removed and consider this factor along with others. Here, the Court finds that Mr. Rocha-Sanchez's argument is not frivolous and, while perhaps against the weight of the precedent, the argument has at least a chance of success on the merits.
Looking at the totality of these factors, the Court finds that Mr. Rocha-Sanchez's prolonged mandatory detention without an individualized bond hearing has violated his due process rights. This finding does not mean he is entitled to immediate release, but rather, that he is entitled to an individualized bond hearing where the Government bears the burden of showing by clear and convincing evidence that Mr. Rocha-Sanchez's continued detention is justified. Barring emergency conditions that have not been asserted here, this Court finds that the immigration court is in the best position to make this determination.
B. The Court Declines to Reach Mr. Rocha-Sanchez's Claim Regarding Matter of Joseph Hearings.
Mr. Rocha-Sanchez also brings a procedural due process argument challenging the procedure set out in Matter of Joseph, 22 I. & N. Dec. 799, 801 (BIA 1999), for noncitizens to challenge whether they are properly held under the mandatory detention provision of 8 U.S.C. § 1226(c). Pursuant to Matter of Joseph, a detainee may challenge ICE's mandatory detention determination by showing that the Government is "substantially unlikely" to prevail on its charge of removability. Id. If the immigration judge finds that ICE is substantially unlikely to prevail on its charge of removability, the immigration judge has authority to release the noncitizen on bond.
Mr. Rocha-Sanchez argues that the procedures set forth in Matter of Joseph are unconstitutional. He argues that instead of the noncitizen bearing the burden to show that the Government is "substantially unlikely" to prevail on its charge of removability, the burden should be on the Government to show by clear and convincing evidence that a noncitizen was properly subject to mandatory detention. As Mr. Rocha-Sanchez points out, circuit judges in both the Ninth and Third Circuit have recognized the potential constitutional concerns with Matter of Joseph. Tijani v. Willis, 430 F.3d 1241, 1244 (9th Cir. 2005) (Tashima, J., concurring) ("The BIA's Joseph decision was, plainly put, wrong ... [I]t establishes a system of "detention by default" by placing the burden fully on the alien to prove that he should not be detained. When such a fundamental right is at stake, however, the Supreme Court has insisted on heightened procedural protections to guard against the erroneous deprivation of that right. In particular, the Supreme Court has time and again rejected laws that place on the individual the burden of protecting his or her fundamental rights."); Diop v. ICE/Homeland Security, 656 F.3d 221, 231, n.8 (3d Cir. 2011) ("[T]he constitutional adequacy of a Joseph hearing ... is an open one.").
In the Government's view, because Mr. Rocha-Sanchez sought his Matter of Joseph hearing after the merits of his removal proceeding were already decided, Mr. Rocha-Sanchez's arguments were, essentially, already foreclosed. As Matter of Joseph observed, in many cases "the Immigration Judge's jurisdiction over custody issues is dependent on the answer to the very same question that underlies the charge of removability in the case in chief. In other words, if the respondent is removable as an aggravated felon, the Immigration Judge lacks any bond jurisdiction. Conversely, the Immigration Judge would have authority to redetermine custody conditions if the respondent is not removable as an aggravated felon." Joseph, 22 I. & N. Dec. at 803. The same is true here: whether Mr. Rocha-Sanchez is subject to mandatory detention under § 1226(c) depends on whether he is subject to removal under 8 U.S.C. § 1227(a)(2)(A)(i) (for having been convicted of a crime involving moral turpitude committed within five years after admission to the United States, for which a sentence of one year or longer may be imposed) or under 8 U.S.C. § 1227(a)(2)(A)(iii) (for having been convicted of an aggravated felony theft offense as defined under 8 U.S.C. § 1101(a)(4) ) as a result of his 2018 Illinois possession of a stolen vehicle conviction.
By the time Mr. Rocha-Sanchez requested a Matter of Joseph hearing, the Immigration Judge had determined the merits of Mr. Rocha-Sanchez's removal charge. Notably, the facts are not in dispute, whether Mr. Rocha-Sanchez is removable is a purely legal question regarding whether his statute of conviction is categorically a crime involving moral turpitude and/or an aggravated felony. Accordingly, it is not clear how Mr. Rocha-Sanchez would have received a different result even had the Immigration Judge applied his desired standard and burden of proof.
Regardless, here, the Court has already found that Mr. Rocha-Sanchez is entitled to an individualized bond hearing due to his unreasonably prolonged detention without a bond hearing. Accordingly, as Mr. Rocha-Sanchez would not be entitled to any further relief, the Court declines to rule on this claim.
III. CONCLUSION
For the reasons stated above, Petitioner's Petition for Writ of Habeas Corpus (d/e 1) is GRANTED pursuant to 28 U.S.C. § 2241(c)(3). Under 28 U.S.C. § 2243, this Court is authorized to "dispose of the matter as law and justice require." The Court finds that Petitioner's detention pursuant to the mandatory detention statute, 8 U.S.C. § 1226(c), is no longer constitutional as applied to Petitioner and that law and justice require an individualized bond hearing before an Immigration Judge.
Accordingly, the Court ORDERS Chad Kolitwenzew to release Petitioner from the custody of Jerome Combs Detention Center within 14 days of this order, unless he receives an order from an Immigration Judge who has determined, after an individualized hearing where the Government bore the burden to show by clear and convincing evidence that Petitioner's continued detention is necessary to prevent a risk of flight or a threat to public safety.