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In Rosciano v. Sonchik, No. CIV 01-472-PHX-FJM, 2002 U.S. Dist. LEXIS 25419, *2-3 (D. Ariz. Sept. 10, 2002) (unpublished opinion), Maria Rosciano ("Rosciano"), a citizen of Colombia, was arrested for her role in a controlled heroin transaction conducted on her property.
Summary of this case from Enwonwu v. ChertoffOpinion
No. CIV 01-472-PHX-FJM
September 9, 2002
ORDER
The Court has before it Petitioner's Petition for Writ of Habeas Corpus (Doc. 1, the "Petition"), a Report and Recommendation (Doc. 18, "RR") addressing the Petition, Petitioner's Response to Report and Recommendation (Doc. 21, "Response to RR"), and Respondents' Reply to Petitioner's Response to Report and Recommendation (Doc. 24, "Reply to RR"). Also before the Court is Petitioner's Motion for Bond Hearing (Doc. 26, "Motion") and Respondents' Opposition to Motion for Bond Hearing (Doc. 27, "Opposition").
I. Facts
Petitioner, a native and citizen of Colombia, became a lawful permanent resident of the United States on March 29, 1984. She has two daughters who are citizens of the United States. Drug traffickers murdered her brother in 1996 because of his role in a failed drug transaction. The Federal Bureau of Investigation ("FBI") was interested in learning the identity of a major drug lord (involved in the failed drug transaction) known as "El Indio," which the FBI believed Petitioner might know or be able to discover. Shortly after the death of Petitioner's brother, and pursuant to its desire to obtain this information, the FBI sent confidential informants to befriend Petitioner in Arizona in an effort to discover the desired information.
The confidential informants, themselves originally Colombians, befriended Petitioner and became her neighbors. The "sting" culminated in the arrest of Petitioner for her participation in a drug transaction conducted on her property, in which the confidential informants arranged to purchase heroin from persons made known to them by Petitioner. In 1997, Petitioner was arrested and charged.
The authorities were still eager to learn the identity of El Indio. At their request, Petitioner, who was cooperating fully, called her brother in Colombia to acquire the information, but her brother was unwilling to help for fear of reprisal. Petitioner then called her sister, again in Colombia, with the same request. Eventually Petitioner's sister did provide a name to Petitioner, who in turn provided the name to the authorities. Shortly afterwards, Petitioner's sister died in a suspicious car accident in which her brakes failed. Petitioner's sister was informed, prior to her death, that El Indio would not forgive her.
In addition to providing the authorities with information about El Indio's identity, Petitioner helped them convict the parties (other than the confidential informants) to the drug transaction out of which her own conviction arises.
Petitioner entered into a plea agreement with the United States. In return for her cooperation and assistance, Petitioner received a shorter sentence. Indeed, the United States declared that "the risk of danger as a result of her assistance is high" when it urged the court to grant its motion for downward departure under U.S.S.G. § 5K.1.1. Motion to Authorize Downward Departure at 3, in CR 97-256-PHX-EHC (Doc 83). However, the United States refused her requests for assistance in obtaining a visa that would have enabled her to stay in the United States. Instead, lawyers for the United States told Petitioner that they doubted Petitioner would be deported if the trial judge recommended that she not be deported. In fact the trial judge did so recommend.
Nevertheless, in 1999, when Petitioner finished serving her sentence, the Immigration and Naturalization Service commenced removal proceedings. The Immigration Judge "determined that [Petitioner's] life is in danger from the drug traffickers in her native Colombia and that it is likely she will be killed if returned to Colombia because she helped United States law enforcement officials learn the identity of a major trafficker and she helped convict two other traffickers." Bureau of Immigration Appeals Decision, at 3. But because Petitioner was also found to have committed a particularly serious crime, she fit into an exception to the statutory protection against removal. See 8 U.S.C. § 1231(b)(3)(A) (prohibiting removal of those whose life or freedom would be threatened if removed); § 1231(b)(3)(B)(ii) (excepting from the prohibition those who have committed a particularly serious crime). The Bureau of Immigration Appeals affirmed the Immigration Judge's decision.
Faced with the prospect of removal, Petitioner sought relief under 8 U.S.C. § 2241. She filed her Petition on March 13, 2001. On that same day, she applied for a temporary restraining order prohibiting deportation to Colombia. The case was assigned to the Honorable James A. Teilborg, but because Judge Teilborg was not able to hear the application for temporary restraining order, that hearing was held by the Honorable Earl H. Carroll. Coincidentally, Judge Carroll had presided over Petitioner's underlying criminal case and had recommended against deportation. At the hearing, Judge Carroll said:
But when she put herself at risk for the government, and didn't have to do the things she did, and did them, then I suspect at some time, whether before Judge Teilborg or before the Ninth Circuit, or some other place, she ought to get some relief.
* * *
This government ought to be responsible and responsive to people that they put at risk.See Sealed Transcript of Hearing Held March 13, 2001 (Doc. 5), at 4-5. Judge Carroll also said:
And, I find that there are serious and meritorious issues to be considered in this proceeding, given the petitioner's previous cooperation with the government and considering also the determination that has previously, as I understand it, been made by the Immigration and Naturalization Service that she does, in fact, face a substantial risk of death if she is returned to Colombia.Id. at 13. Judge Carroll granted the application for temporary restraining order.
Judge Teilborg's Order granting a preliminary injunction is also instructive. Judge Teilborg found that the parties failed to convince "the Court that Judge Carroll's finding was in error. Petitioner's claim is not obviously materially distinguishable from Wang v. Reno, 81 F.3d 808 (9th Cir. 1996)." See Order of April 4, 2001 (Doc. 14), at 6. Judge Teilborg also found that "[i]t is uncontested that Petitioner faces a substantial risk of death if she is removed to Colombia." Id.
II. The Petition
Petitioner states one claim for relief, based on the Fifth Amendment,DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), and cases interpreting DeShaney in the Ninth Circuit. She asserts that having taken her into custody and induced her into becoming an informant, the government has an obligation under the Fifth Amendment not to send her to certain death. Judge Teilborg ordered Respondents to file a supplemental brief limited to this claim, and permitted Petitioner to respond. See Order of April 4, 2001 (Doc. 14), at 6. The Court has thus had the benefit of argument contained in the Petition, Respondents' Sealed Response in Opposition to the Petition for Writ of Habeas Corpus (Doc. 4), Petitioner's Traverse (Doc. 7), Respondents' Sealed Supplemental Brief in Support of Response in Opposition to Petition for Writ of Habeas Corpus (Doc. 15), Petitioner's Response thereto (Doc. 16), the RR (Doc. 18), Petitioner's Response to the Report and Recommendation (Doc. 21), Respondents' Reply thereto (Doc. 24), as well as the various papers filed in support of or in opposition to the applications for injunctive relief.III. The Report and Recommendation
The RR recommends denying the Petition. Petitioner's principal objections to the RR are that: first, the RR does not adequately address Petitioner's reliance on Wang v. Reno, 81 F.3d 808 (9th Cir. 1996); and second, that in several ways the RR fails to apply the Ninth Circuit's understanding of DeShaney. The RR considers the argument that the government's past conduct, not including actual removal, helped to create the danger facing Petitioner. The direct argument, in contrast, centers on the act of removal itself.
IV. Petitioner's Direct Argument
Petitioner argues that the act of removing her to Colombia would itself work a violation of the United States Constitution within the meaning of the Ninth Circuit's understanding of DeShaney, because to remove her to Colombia is to place her in a more dangerous situation than that in which the government found her. The government does not contest the universal finding that, if removed to Colombia, Petitioner faces a grave risk of death as punishment for having assisted the government in its investigation into the identity of El Indio.
A. Danger-Creation Exception
"In the Ninth Circuit, the law concerning the `danger creation' exception begins with Wood." L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). In Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), a police officer pulled over the driver of a car in which Wood was the passenger. After determining that the driver was drunk, the officer arrested the driver, impounded the car, and told Wood she had to leave the car. This all took place around 2:30 in the morning, in an area known to have a high crime rate. There was conflicting evidence as to whether the officer offered to arrange transportation for Wood, but, in any event, Wood was left alone in the area. Wood eventually accepted a ride from a driver who then raped her. See Wood 879 F.2d at 586.
The Ninth Circuit held that "Wood has raised a triable issue of fact as to whether Ostrander's conduct affirmatively placed the plaintiff in a position of danger." Id. at 589-90 (internal quotation marks and citation omitted). "The fact that [the officer] . . . apparently stranded Wood in a high-crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety." Id. at 590. The Ninth Circuit distinguished DeShaney as a "situation where [the] state `played no part' in creating the dangers that [the] minor child faced by remaining in his father's custody `nor did [the state] do anything to render [the child] any more vulnerable to them.'" Id. (alteration in original). The Ninth Circuit did not believe in Wood that the danger-creation exception applies only in cases where the state is responsible for every part of the danger, for the officer inWood did not create the high crime rate, nor did he force Wood to accept a ride. Instead, Wood shows that the danger-creation exception applies where the government affirmatively places a person into a dangerous situation.
In L.W. v. Grubbs, the Ninth Circuit found the danger-creation exception to apply in a case in which an inmate raped a female employee at a medium security custodial institution. The authorities promoted an inmate to a position that would place the employee at risk of an assault by the inmate, whom they knew had a history of violence against women. The Ninth Circuit said that "[t]he Defendants, like the officer in Wood, thus used their authority as state correctional officers to create an opportunity for [the inmate] to assault [the plaintiff] that would not otherwise have existed." Grubbs, 974 F.2d at 121. Here again the Ninth Circuit did not believe that the state created the dangerous inmate. Instead, it recognized that the state could "create" a danger by placing someone in proximity to an already existing danger.
A recent case shows that the Ninth Circuit continues to adhere to its danger-creation jurisprudence. In Muner v. City of Flasgow Police Dept., 227 F.3d 1082 (9th Cir. 2000), he police ejected Munger, who had drunk substantial amounts of alcohol and who had become belligerent, from a bar and prevented him from driving his car. It was a particularly cold night, and Munger was dressed only in jeans and a t-shirt. Munger died of hypothermia. Munger, 227 F.3d at 1084-85. The Ninth Circuit held that "[i]t would seem indisputable, under this version of the facts, that the officers placed Munger `in a more dangerous position than the one in which they found him.'" Id. at 1088 (quoting Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997)).
Petitioner's direct argument is simply that if the government were to remove her to Colombia, it would be placing her in a position more dangerous than the one in which they found her, and the Constitution prohibits this. Relying on cases from other circuits, the government argues that because the government did not cause the dangerous drug lords to exist or introduce Petitioner to such people, and because Petitioner assisted the government voluntarily, this is not a situation covered by the danger-creation exception. But this position is contrary to the law of the Ninth Circuit. Munger, for example, voluntarily consumed the alcohol, and the police played no role in causing it to have been a particularly cold night. Moreover, it is not the case that the government played no role in bringing about the fact that Petitioner faces a real threat of death if removed. First, the government ran the sting operation in order to place Petitioner in a position in which she would cooperate. Second, the government refused to assist Petitioner in her effort to ensure that she would not be removed, even though it knew she would be at high risk. Indeed, the government represented to Petitioner that removal would be unlikely if the sentencing judge recommended against it. Third, the government is actively attempting to remove her, in spite of the known danger to Petitioner. The government did not, in other words, stand idly by while Petitioner all by herself created the danger she faces. Had the government followed the sentencing judge's recommendation, the risk would have been avoided.
B. 8 U.S.C. § 1231
Respondents argue that Petitioner's direct argument is actually an attack on the constitutionality of 8 U.S.C. § 1231(b)(3)(B). Section 1231(b)(3)(A) provides that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Section 1231(b)(3)(B), however, creates exceptions to this statutory prohibition against removal. In particular, § 1231(b)(3)(B)(ii) places any alien who has "been convicted by a final judgment of a particularly serious crime [and is thus] a danger to the community of the United States" outside the statutory prohibition against removal. Petitioner falls into this category. According to Respondents, to accept Petitioner's argument is to declare § 1231(b)(3)(B) unconstitutional.
But section 1231(b)(3)(B) is not being challenged here. Section 1231(b)(3)(A) provides a statutory prohibition against removal in certain situations, which may or may not include the facts here. Section 1231(b)(3)(B) lists various situations in which this statutory prohibition does not apply. Petitioner's argument is that her unique situation is one in which the Constitution provides a prohibition against removal. Her position is that in addition to the statutory protection for which she is ineligible, there is a constitutional protection for which she is eligible, particularly where, as here, removal is not required but is within the discretion of the Attorney General. See 8 C.F.R. § 214.2(t)(5) (2002); 28 C.F.R. § 0.197 (2002).
Respondents conclude this argument by asserting that LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir. 1976), "firmly rejected [Petitioner's] assertion that the government may not knowingly place her in danger." (Respondents' Reply to Petitioner's Objections, at 7.) LeTourneur. however, does not concern itself with the substantive due process argument at issue here, nor even with removal of a person to a country where it is likely the person will be killed. LeTourneur is inapposite.
Under the unique and compelling facts presented in this case, Petitioner's direct argument prevails under Ninth Circuit precedent.
V. Wang
Petitioner argues also that Wang v. Reno, 81 F.3d 808 (9th Cir. 1996), presents sufficiently similar facts to warrant granting her Petition. Respondents, on the other hand, argue that Wang is distinguishable. The facts of Wang are complicated, and the legal theories employed in affirming the permanent injunction against removal are not limited to the theory here employed by Petitioner, nor are they limited to the danger-creation exception that has been the focus of this Order.
Wang lies somewhere in between the positions advanced by the parties.Wang presents facts involving a long pattern of governmental misconduct that occurred while Wang was in custody. This misconduct played a role in the creation of the danger Wang's removal to China would pose to him. ButWang occupies a position far beyond what is necessary to trigger the exceptions to DeShaney. To say that Wang is distinguishable, then, is not to end the matter. Wang does not compel granting relief, but parts ofWang appear to recommend it. Wang, at a minimum, reinforces Petitioner's direct argument that the government may not affirmatively place her in danger.
VI. Conclusion
We grant the petition based upon petitioner's direct argument.
Petitioner recently filed a Motion for Bond Hearing (Doc. 26); Respondents filed an Opposition to Motion for Bond Hearing (Doc. 27). The arguments contained in these papers are to a large extent rendered moot by the disposition in this Order. In addition, it is not clear what effect this Order will have on detention. The court will therefore deny the Motion for Bond Hearing as moot, but without prejudice to the right of Petitioner to file for such relief anew.
IT IS THEREFORE ORDERED rejecting, in part, the Report and Recommendation (Doc. 18), insofar as it is inconsistent with this order.
IT IS FURTHER ORDERED granting the Petition for Writ of Habeas Corpus (Doc. 1).
IT IS FURTHER ORDERED permanently enjoining Respondents from removing Petitioner to Colombia until such time as the Respondents can show that she is not likely to be murdered there.
IT IS FURTHER ORDERED denying as moot Petitioner's Motion for Bond Hearing (Doc. 26).