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observing that "Justice Kennedy noted in his concurrence in Demore that situations may arise in which a detained person could be 'entitled to an individualized determination as to his risk of flight and dangerousness'"
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CIVIL NO. 19-3143 (DSD/BRT)
2020-04-22
DENG CHOL A., Petitioner, v. William BARR, et al., Respondents.
John R. Bruning, The Advocates for Human Rights, Michael D. Reif, Rajin Olson, Robins Kaplan LLP, Nadia Anguiano-Wehde, Benjamin Casper Sanchez, University of Minnesota Law School Clinics, Kathleen A. Moccio, Minneapolis, MN, for Petitioner. Ana H. Voss, Ann M. Bildtsen, David W. Fuller, United States Attorney's Office, Minneapolis, MN, for Respondents William Barr, Chad Wolf, Matthew Albence, Peter Berg. David John Walker, Freeborn County Attorney's Office, Albert Lea, MN, for Respondent Kurt Freitag.
John R. Bruning, The Advocates for Human Rights, Michael D. Reif, Rajin Olson, Robins Kaplan LLP, Nadia Anguiano-Wehde, Benjamin Casper Sanchez, University of Minnesota Law School Clinics, Kathleen A. Moccio, Minneapolis, MN, for Petitioner.
Ana H. Voss, Ann M. Bildtsen, David W. Fuller, United States Attorney's Office, Minneapolis, MN, for Respondents William Barr, Chad Wolf, Matthew Albence, Peter Berg.
David John Walker, Freeborn County Attorney's Office, Albert Lea, MN, for Respondent Kurt Freitag.
ORDER
David S. Doty, Judge
This matter is before the court upon the petition for a writ of habeas corpus by Deng Chol A. Based on a review of the file, record, and proceedings herein, and for the following reasons, the petition is granted in part.
This District has adopted the policy of using only the first name and last initial of any nongovernmental parties in immigration matters such as this.
BACKGROUND
Petitioner is a native of South Sudan who came to the United States in 2005 as a refugee. Am. Pet. Ex. A, at 3. He became a lawful permanent resident in 2007. Id.
I. Immigration Removal Proceedings
Petitioner has been detained under 8 U.S.C. § 1226(c) since May 29, 2019. Id. He was picked up on a charge of removability under § 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA) stemming from a conviction for possession of marijuana. Id.; id. Ex. B. Petitioner sought relief from removal and the immigration judge (IJ) scheduled an individualized hearing for September 23, 2019. Id. Ex. D, at 2. At that hearing, the government filed two additional charges of removability under INA § 237(a)(2)(A)(ii) and (iii). Id. Ex. C. These charges were based on a June 12, 2019, conviction for petty theft and a May 29, 2019, conviction for attempted grand theft. Id. The IJ continued the hearing to October 3, 2019, at which point she issued an order concluding that petitioner was not subject to removal based on any of the filed charges and terminated the removal proceedings. Id. Ex. D, at 7–8.
On October 28, 2019, the government moved for reconsideration of the IJ's order terminating removal proceedings on the grounds that it had a new charge of removability. Id. Ex. E. With that motion, the government filed a Form I-261 charging petitioner with removability under INA § 237(a)(2)(A)(iii), based on his May 29, 2019, conviction for accessory to a felony. Id. The IJ granted the government's motion and reopened removal proceedings the next day, before petitioner had a chance to respond. Id. Ex. F.
Petitioner challenged the IJ's order on numerous grounds and moved to reinstate the termination order. See id. Ex. G. The IJ summarily denied the motion. Id. Ex. H. Petitioner then moved to terminate the removal proceedings, arguing that he was not subject to removal based on his conviction for accessory to a felony. Id. Ex. I. The IJ again summarily denied the motion, sustained the charge of removability, and set a preliminary hearing date for January 7, 2020, wherein petitioner could file applications for relief from removal. Id. Ex. J; id. Ex. K ¶ 3.
At the January 7 hearing, petitioner decided not to pursue applications for relief from removal and decided instead to appeal the IJ's previous rulings to the Board of Immigration Appeals (BIA). Id. Ex. K ¶ 4. As a result, the IJ ordered petitioner removed based on the sole remaining charge of removability stemming from his conviction for accessory to a felony. Id. On February 4, 2020, petitioner appealed the IJ's decisions to the BIA. ECF No. 17 Ex. M. That appeal remains pending.
II. Developments Relating to Petitioner's Criminal History
On February 18, 2020, the Circuit Court of South Dakota vacated petitioner's May 29, 2019, conviction for accessory to a felony due to a defect in the underlying criminal proceedings, namely, the lack of a sufficient factual basis. ECF No. 25 Ex. Z. As discussed above, that conviction was the sole basis for removal sustained by the IJ.
The Circuit Court's order was subsequently amended on February 21, 2020, to fix a clerical error. See ECF No. 25 Ex. AA.
On February 19, 2020, petitioner pleaded guilty to and was sentenced in the Circuit Court of South Dakota on charges of attempted grand theft and aiding, abetting or advising criminal re: conceal weapon with intent to commit felony. ECF No. 25 Ex. Z. These "new" convictions, however, stemmed from the same facts that supported petitioner's original convictions for attempted grand theft and accessory to a felony. Compare ECF No. 25 Ex. Y (original judgment and sentence for petitioner's convictions on charges of accessory to a felony and attempted grand theft based on facts occurring on September 2, 2018), with id. Ex. Z (new judgment and sentence for petitioner's convictions on charges of aiding, abetting or advising criminal re: conceal weapon with intent to commit felony and attempted grand theft based on facts occurring on September 2, 2018); see also id. Ex. BB (explaining that the "new" conviction for attempted grand theft was due to the fact that petitioner's previous conviction would, as a matter of procedure, be withdrawn and vacated, thus necessitating a new guilty plea on the same charge). Id. Ex. Z.
As a result of the vacatur of the conviction forming the basis for the sole charge of removability against him, petitioner filed a motion to terminate removal proceedings with the BIA on February 24, 2020. ECF No. 19 Ex. R. The government opposed petitioner's motion to terminate, and instead moved to remand proceedings to the IJ for further fact finding. Id. Ex. S. The government attached a Form I-261 listing additional allegations supporting removal to its motion, but did not include actual charges of removability based on petitioner's new conviction for aiding and abetting and his renewed conviction for attempted grand theft. Id. Ex. S, at 8.
The BIA now has three items pending before it: (1) petitioner's appeal relating to the underlying removal proceedings; (2) petitioner's motion to terminate removal proceedings based on the vacatur of his conviction underlying the charge of removability; and (3) the government's motion to remand for further fact finding.
III. Petition for Writ of Habeas Corpus
Petitioner first petitioned this court for a writ of habeas corpus on December 20, 2019. See ECF No. 1. He filed his amended petition on January 16, 2020. See ECF No. 13. Petitioner argues that his continued detention violates the Due Process Clause of the Fifth Amendment. The government opposes the petition.
Petitioner also argues that his prolonged detention without a bond hearing violates the Eighth Amendment's prohibition against excessive bail. Because the court grants the petition on Fifth Amendment grounds, it will not consider the merits of petitioner's Eighth Amendment claim.
On March 26, 2020, petitioner filed a letter to update the court regarding the developments in his underlying criminal convictions — namely, the vacatur of the conviction underlying his charge of removability — and to argue that these developments strengthen his petition. See ECF No. 18. The government continues to oppose the petition. See ECF Nos. 21, 24.
DISCUSSION
Under 8 U.S.C. § 1226(c), detention of a person charged with removability based on their commission of various crimes is mandatory. 8 U.S.C. § 1226(c). The court is prohibited from reviewing whether detention under the statute is proper. Id. § 1226(e). A person detained by the government, however, may challenge the legality of his confinement through a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). This right extends to those persons challenging the lawfulness of immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ; see also Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Although the court may not review discretionary decisions made by immigration authorities, it may review immigration-related detentions to determine if they comport with the demands of the Constitution. Zadvydas, 533 U.S. at 688, 121 S.Ct. 2491.
I. Due Process and Continued Detention Under § 1226(c)
Under the Due Process Clause of the Fifth Amendment, no citizen or noncitizen "shall ... be deprived of life, liberty, or property ... without due process of law." U.S. Const. amend. V ; see Mathews v. Diaz, 426 U.S. 67, 78, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). "[I]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
The government argues that petitioner's continued detention under § 1226(c) is constitutional, especially in light of the Supreme Court's ruling in Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018). Jennings struck down the Ninth Circuit's determination that § 1226(c) implicitly requires a bond hearing after six months of detention. 138 S. Ct. at 836. The Court held that, because § 1226(c) is clear on its face, it was improper for the Ninth Circuit to use the canon of constitutional avoidance to determine that a bond hearing was required after six months. Id. at 846.
Jennings, however, stopped short of determining whether and to what extent prolonged detention under § 1226(c) would violate the Constitution. Id. at 847. The Supreme Court previously determined that detention under § 1226(c) for the "brief period necessary" for removal proceedings does not violate the Due Process Clause. Demore, 538 U.S. at 513, 123 S.Ct. 1708. In making that determination, however, the Court looked at periods of detention averaging a month and a half to five months. Id. Here, we are well past even the six months considered in Jennings, and indeed, Justice Kennedy noted in his concurrence in Demore that situations may arise in which a detained person could be "entitled to an individualized determination as to his risk of flight and dangerousness." Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring).
The Eighth Circuit has not yet ruled on whether prolonged detention under § 1226(c) is constitutionally permissible. After Jennings, courts in this district have approached due process challenges to § 1226(c) detention by considering the specific facts of each case to determine whether the length of detention was reasonable. See Muse v. Sessions, 409 F. Supp. 3d 707, 715 (D. Minn. 2018).
II. Muse Factors
Courts in this district consider the following factors when determining whether a petitioner's prolonged detention under § 1226(c) violates due process: (1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the petitioner; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal. Id. Here, four of the six factors weigh in favor of granting petitioner's request for release.
The government contends that the court should also consider a public safety factor and compare the length of incarceration imposed on petitioner's predicate criminal offenses with the length of his detention under § 1226(c). The court declines to do so, however, because it does not find this factor helpful. As noted by other decisions within this district, criminal incarceration and detention under § 1226 "are different types of custody imposed for different reasons by different sovereigns." Muse, 409 F. Supp. 3d at 715 n.3 ; see also Tua Mene Lebie B. v. Barr, No. 19-cv-2177, 2019 WL 5715703, at *5 (D. Minn. Nov. 5, 2019). The length of imprisonment imposed for criminal punishment has no bearing on whether continued civil detention by the federal government is constitutional.
A. Length of Detention to Date
Petitioner has been in § 1226(c) detention for almost 11 months. The government argues that the current length of petitioner's detention is not extraordinary and that the first Muse factor does not weigh in favor or relief. The court disagrees.
Courts in this district have held that habeas relief is warranted in situations involving periods of detention similar to or shorter than the 11 months at issue here. See Bolus A. D. v. Sec'y of Homeland Sec., No. 18-cv-1557, 2019 WL 1905848 (D. Minn. Feb. 11, 2019) (recommending habeas relief at 13.5 months), report and recommendation adopted as modified by 376 F. Supp. 3d 959 ; Liban M.J. v. Sec'y of Dep't of Homeland Sec., No. 18-cv-1843, 2018 WL 8495827, at *2 (D. Minn. Dec. 10, 2018) (recommending habeas relief at 12.5 months), report and recommendation adopted by 367 F. Supp. 3d 959 ; Abdulkadir A. v. Sessions et al., No. 18-cv-2353, 2018 WL 7048363, at *1-2, 12 (D. Minn. Nov. 13, 2018) (recommending habeas relief at nine months), report and recommendation adopted by 2019 WL 201761 ; Tao J. v. Sec'y of Dep't of Homeland Sec., No. 18-cv-1845, 2018 WL 8141439 (D. Minn. Nov. 2, 2018) (recommending habeas relief at 10 months), report and recommendation adopted by 2019 WL 1923110. Detentions of this length become even more problematic where, as here, the petitioner has not been afforded a bond hearing wherein "the Government has justified its actions [as to] whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community." Muse, 409 F. Supp. 3d at 715 (internal quotation omitted). As such, the court finds the first factor weighs in favor of relief.
B. Likely Duration of Future Detention
The second factor also weighs in favor of relief under these circumstances. The court disagrees with the government's argument that this factor relies on "unhelpful hypothesizing of future events." See ECF No. 14, at 20. As petitioner notes, his appeal to the BIA is in its early stages. It seems clear based on the proceedings so far that petitioner's detention will likely be prolonged by an appeal of the BIA decision, regardless of the outcome. Accordingly, this factor also weighs in favor of relief.
C. Conditions of Detention
Although the government questions the relevance of the fourth Muse factor, the conditions of petitioner's detention, the court agrees with other decisions in this district that this factor warrants consideration. The government contends that Congress was aware when passing § 1226(c) that immigration officials would often detain persons subject to removal in criminal facilities. The fact remains, however, that persons detained under § 1226(c) are subject to civil detention not criminal incarceration. See Muse, 409 F. Supp. 3d at 717 (citation omitted). Therefore, the more the conditions of petitioner's detention resemble penal confinement, the more this factor weighs in favor or relief.
The government concedes that petitioner has been held in the Freeborn County Jail during his entire period of § 1226(c) detention. He is detained alongside inmates awaiting criminal trials and serving criminal sentences. As this is indistinguishable from criminal confinement, this factor weighs in favor of relief.
D. Delays in Removal Proceedings Caused by Either Party
Both parties contend that these two factors — the nature and extent of any delays caused by either petitioner or the government — weigh in their favor. Petitioner argues that the government has engaged in dilatory tactics to prolong his detention. Although the government has not proceeded in the most efficient manner, it is not clear that it acted for the purpose of prolonging petitioner's detention.
For example, it was not until after the IJ concluded at the October 3, 2019, hearing that petitioner was not removable under the current charges, that the government brought an additional charge that appears to have been available earlier. The new charge related to petitioner's conviction for the offense of accessory to a felony, for which he was convicted on May 29, 2019. See Am. Pet. Ex. E, at 4. This was the same day that petitioner was convicted of attempted grand theft, for which the government previously brought charges of removal. See id. Ex. C. The government maintains that it did not learn of the two May 29, 2019, convictions at the same time. See id. Ex. E, at 2.
The government, although recognizing petitioner's right to do so, argues that any delays in his removal proceedings stemmed from his assertion of various defenses to removal. Petitioner will not, however, be penalized for asserting such defenses. See Liban M.J., 367 F. Supp. 3d at 965. As neither of the parties have engaged in dilatory tactics, these two factors are neutral.
E. Likelihood that Removal Proceedings Will Result in Final Order of Removal
Finally, the sixth factor also weighs in favor of relief. The court is not normally in a position to weigh the merits of either petitioner's appeals or the government's grounds for removal. Here, however, the court cannot ignore that petitioner is currently detained despite the fact that the conviction underlying the sole charge of removal sustained by the IJ has now been vacated. See ECF No. 19 Ex. R, at 6 (allowing petitioner to withdraw his guilty plea on the charge of accessory to a felony). The government argues that its remand motion pending before the BIA is proper because it has filed new charges of removability. In its Form I-261, however, there are no additional charges of removability listed. See ECF 19 Ex. S, at 8. Because the conviction underlying petitioner's sole charge of removability has been vacated, this factor weighs in favor of relief. See Haji S. v. Barr, No. 18-cv-3493, 2019 WL 3238354, at *3 (D. Minn. July 18, 2019).
Although the Form I-261 is devoid of additional charges of removability, it does include two allegations supporting removal stemming from what the government contends are new convictions. As explained above, however, one of the convictions is not new. See ECF No. 25 Exs. X, Y, Z, AA, BB. Further, the IJ determined, when she terminated the removal proceedings on October 3, 2019, that petitioner's conviction for attempted grand theft is not grounds for removal. See Am. Pet. Ex. D.
Because four of the six Muse factors weigh in favor of petitioner, the court grants the petition for writ of habeas corpus.
III. Remedy
Although the court grants the petition, the question remains as to the proper remedy. Petitioner seeks to be released from detention or, in the alternative, asks for a bond hearing. In this instance, a bond hearing is appropriate as it "will protect both [petitioner's] rights under the Due Process Clause and the government's legitimate interest in detaining a removable alien when such detention is necessary to serve the purposes of § 1226(c)." Muse, 409 F. Supp. 3d at 718 ; see also Haji S., 2019 WL 3238354, at *3 (ordering a bond hearing even where the conviction underlying petitioner's charge of removal was vacated).
This does not end the inquiry, however. Petitioner asserts that at the bond hearing the government should carry the burden of proving by clear and convincing evidence that petitioner's continued detention is necessary to protect the community or to prevent him from fleeing. The government argues that, in the event the court orders a bond hearing, it is proper for petitioner to carry the burden of proof.
Section 1226(c) is silent on which party bears the burden of proof, and neither the Supreme Court nor the Eighth Circuit have addressed the issue. Although some courts in this district have indicated that it is a question for the immigration judge in the first instance, this court is unaware of any case with a detailed analysis of the issue. See Abshir H.A. v. Barr, No. 19-cv-1033, 2019 WL 3719414, at *3 (D. Minn. Aug. 7, 2019) ; Bolus A.D., 376 F. Supp. 3d at 963 ; Muse, 409 F. Supp. 3d at 718.
The government argues that the bond procedures in place for other immigration proceedings are adequate to protect petitioner's constitutional rights, citing both regulation and BIA precedent. Those regulations, however, do not apply to § 1226(c) detainees. See 8 C.F.R. § 236.1(c)(8) (specifically exempting § 1226(c) detainees from availing themselves of the release and bond provisions described therein). The BIA precedent cited by the government is similarly unavailing, as the reasoning in those cases was based on these same regulations that plainly do not apply to § 1226(c) detainees. See Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006) ; Matter of Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA 1999).
Further, the government's argument that the Eighth Circuit considered the bond hearing process constitutionally permissible in Ali v. Brott, 770 Fed. App'x 298, 301 (8th Cir. 2019), is unpersuasive. In Ali, the Eighth Circuit determined that petitioner's detention under § 1226(a) was reasonable because of the availability of a bond hearing. See Ali, 770 Fed. App'x at 301–02. The court did not, however, weigh in on whether placing the burden of proof at a bond hearing on the detainee was constitutionally permissible. Id. Because it does not address the question at issue here, Ali is inapposite.
Nor does the Supreme Court precedent cited in Ali weigh in on this question.
Although petitioner persuasively argues that procedural due process requires the government to bear the burden of proof, the court is not convinced that it should prospectively order an immigration judge to apply a specific standard of proof at a bond hearing. See Bolus A.D., 376 F. Supp. 3d at 963. The court will note again, however, that detention under § 1226(c) is civil in nature. In other civil settings, both the Supreme Court and Congress have determined that it is proper for the government to carry the burden of proving by clear and convincing evidence that detention is necessary. See Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (holding that the government must prove by clear and convincing evidence that, in state civil commitment proceedings, an individual should be involuntarily committed to a mental hospital; see also 18 U.S.C. § 3142(f) (requiring the government to justify pretrial criminal detention on grounds of danger to the community by clear and convincing evidence). Given that the court has determined that petitioner's prolonged civil detention without a bond hearing under § 1226(c) violates his constitutional rights, it would appear to make little sense to afford petitioner less due process than is afforded other civil, and even some criminal, detainees. See Cooper v. Oklahoma, 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (recognizing that due process places a heightened burden of proof on the state in civil proceedings where an individual's interest is of particular importance and more significant than monetary loss); Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 ("Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process Clause] protects.").
The court has considered the recent recommendation in a case concerning the prolonged detention of a § 1226(c) detainee wherein Magistrate Judge Bowbeer recommended that the government be ordered to bear the burden of demonstrating by clear and convincing evidence at the bond hearing that the petitioner's continued detention was warranted. See Muse v. Sessions, 19-cv-3099, ECF No. 21, at 22 (D. Minn. Apr. 10, 2020). The procedural posture of that case was different, however, in that there had already been a bond hearing in which the immigration judge put the burden of proof on the petitioner. See id. at 20. Here, petitioner has not yet had a bond hearing.
Accordingly, instead of defaulting to placing the burden of proof on petitioner, and in light of the fact that the statute and BIA precedent relating to bond procedure in other immigration detention settings does not apply to § 1226(c) detainees, the immigration judge should consider what the proper standard of proof is and which party properly carries the burden of proof at the bond hearing.
It appears to be regular practice for an immigration judge to place the burden on the detainee to prove that detention is no longer proper. See Muse, 19-cv-3099, ECF No. 21, at 20; ECF No. 17 Ex. N ¶¶ 4, 6; ECF No. 17 Ex. P, at 2–3.
IV. Attorney's Fees and Costs
Under the Equal Access to Justice Act, the court shall, under certain circumstances, award fees and other expenses to the prevailing party. 28 U.S.C. § 2412(d)(1)(A). The party requesting fees and expenses must submit an application to the court within thirty days of final judgment. Id. § 2412(d)(1)(B). Here, neither party has submitted briefing regarding the propriety of awarding costs and fees under the Equal Access to Justice Act. The court will therefore allow petitioner to bring a separate motion for costs and fees, to which the government may respond.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. The amended petition for writ of habeas corpus [ECF No. 13] is granted in part;
2. The government shall produce petitioner for a bond hearing in front of an immigration judge as soon as practicable, but no later than May 6, 2020;
3. Prior to any bond hearing, the government will ensure that petitioner has an opportunity to speak with counsel in person or by telephone, in private, for not less than one hour;
4. At the bond hearing, the immigration judge shall consider arguments regarding the proper standard of proof and which party properly holds the burden of proving whether petitioner presents a danger to the community or risk of flight;
5. The immigration judge shall make an individualized determination as to whether petitioner's continued detention is necessary to protect against danger to the community or to prevent petitioner from fleeing;
6. In the event a bond hearing cannot reasonably be held by May 6, 2020, the parties shall provide a status update on or before May 6, 2020; and
7. Petitioner may, within 30 days of this order, bring a motion for costs and fees under the Equal Access to Justice Act.