Opinion
Case No.: 3:20-cv-00539-AJB-AGS
11-04-2020
Sataby KYDYRALI, Petitioner, v. Chad F. WOLF, Acting Secretary of Homeland Security; et al., Respondents.
Joshua A. Altman, Altman Immigration Law, PC, San Diego, CA, for Petitioner. U.S. Attorney CV, Caroline Clark Prime, U.S. Attorney's Office, San Diego, CA, for Respondents Chad F. Wolf, Matthew T. Albence, Gregory J. Archambeault, William P. Barr. U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, for Respondent Christopher J. Larose.
Joshua A. Altman, Altman Immigration Law, PC, San Diego, CA, for Petitioner.
U.S. Attorney CV, Caroline Clark Prime, U.S. Attorney's Office, San Diego, CA, for Respondents Chad F. Wolf, Matthew T. Albence, Gregory J. Archambeault, William P. Barr.
U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, for Respondent Christopher J. Larose.
AMENDED ORDER GRANTING PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Anthony J. Battaglia, United States District Judge
Before the Court is Petitioner Sataby Kydyrali's amended petition for writ of habeas corpus, wherein he challenges the constitutionality of Respondents' decision to detain him for over twenty months without an individualized bail hearing before a neutral adjudicator. (Doc. No. 3 at 7.) For the reasons set forth below, the Court GRANTS the petition.
The Court uses the term bail and bond in the Order interchangeably.
I. BACKGROUND
Petitioner is a thirty-one-year-old asylum seeker from Kazakhstan, who entered the United States on July 5, 2018 and has since been detained by Respondents at Otay Mesa Detention Center ("OMDC"). (Doc. No. 3 at 2, 3, 5.) After an asylum officer determined that Petitioner had a credible fear of persecution or torture in Kazakhstan, he was placed from expedited removal proceedings to full removal proceedings before an Immigration Judge (IJ). (Id. at 5.) On August 21, 2018, Immigration and Customs Enforcement (ICE) granted Petitioner parole conditioned on a $10,000 bond payment, but later revoked its decision to grant parole based on an Interpol Red Notice. (Id. ) Despite the Interpol notice being later withdrawn by Kazakhstani authorities, ICE continued to detain Petitioner without parole. (Id. )
Eight months later, on April 18, 2019, an IJ denied Petitioner's application for relief and ordered him removed to Kazakhstan. (Id. at 5.) On October 4, 2019, the Board of Immigration Appeals (BIA) affirmed the IJ's decision and dismissed his appeal. (Id. at 6.) On October 10 and 15, 2019, Petitioner filed a petition for review and motion for stay of removal in the Ninth Circuit, and the Ninth Circuit granted a temporary stay. (Id. )
In October or November 2019, Petitioner again requested ICE to grant him parole, and ICE denied it. (Id. ) On November 15, 2019, the IJ noted that Petitioner had been subjected to prolonged detention but denied his request for a bond hearing for lack of jurisdiction. (Id. at 6.) On January 15, 2020, the IJ denied his motion to reconsider. (Id. ) On February 21, 2020, Petitioner again requested that ICE grant him parole, but ICE denied his request on March 6, 2020. (Id. ) Petitioner filed a fourth parole request on April 3, 2020, and it was denied on April 13, 2020. (Doc. No. 12-1 at 8.)
On March 23, 2020, Petitioner commenced this action. (Doc. No. 1.) After the Court denied Petitioner's motions for a temporary restraining order, (Doc. Nos. 10, 23), it issued a briefing schedule for the habeas petition. On October 8, 2020, the Ninth Circuit denied Petitioner's petition for review of his removal order. (Doc. No. 32 at 1.) Petitioner will be requesting rehearing of his case, and he is not subject to detention under 8 U.S.C. § 1231(a)(2). (Doc. No. 35 at 2.) This Order follows.
II. LEGAL STANDARD
A district court may grant a writ of habeas corpus when a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). "[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings." Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).
III. DISCUSSION
Petitioner asserts that his over twenty-month-long immigration detention without an individualized bail hearing before a neutral adjudicator violates the Fifth Amendment's Due Process Clause. (Doc. No. 3 at 7.) Respondents contend that pursuant to 8 U.S.C. § 1225(b), Petitioner is subject to mandatory detention while his asylum application is pending, and that mandatory detention is not subject to constitutional limits of procedural or substantive due process. (Doc. No. 27 at 4, 7.) A. Due Process Challenge to Detention Under 8 U.S.C. § 1225(b)
Here, there is no dispute that Petitioner is an arriving alien subject to mandatory detention under 8 U.S.C. § 1225(b). (Doc. Nos. 3 at 7; 27 at 1, 4–5.) Rather, the dispute is over whether Petitioner, as an arriving alien, is entitled to a constitutionally protected due process right against unreasonably prolonged detention. (Doc. Nos. 3 at 8; 27 at 7.)
In Jennings v. Rodriguez , the Supreme Court held that the general immigration detention statutes, 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), do not contain an implicit six-month limit on detention, and thereby overruled prior Ninth Circuit precedent that afforded detainees subject to detention under these statutes bond hearings every six months. ––– U.S. ––––, 138 S. Ct. 830, 844–48, 200 L.Ed.2d 122 (2018). Jennings , however, held only that detained aliens are not statutorily entitled to periodic bond hearings. See id. Jennings did not determine the constitutional question at issue here—whether arriving aliens subject to prolonged detention under 8 U.S.C. § 1225(b) are entitled to a bond hearing as a matter of due process. See id. at 138 S. Ct. at 851 (remanding for consideration of constitutional issues); Rodriguez v. Marin , 909 F.3d 252, 255 (9th Cir. 2018) ("The Court instead chose to answer only the question whether the statutory text itself included a limit on prolonged detention or a requirement of individual bond hearings."); see also Lett v. Decker , 346 F. Supp. 3d 379, 383 (S.D.N.Y. 2018) ("The Supreme Court did not, however, determine whether arriving aliens facing prolonged detention are entitled to a bond hearing as a matter of constitutional Due Process."); Otis V. v. Green , No. 18-742 (JLL), 2018 WL 3302997, at *6 (D. N.J. July 5, 2018) (" Jennings did not address ... [whether] those detained under the statute, as applicants for admission, possess some rights under the Due Process Clause which may be impugned should detention under the statute become unduly and unreasonably prolonged.").
Respondents argue that Petitioner is not entitled to a bond hearing because arriving aliens, like Petitioner, are entitled to only that process authorized by Congress—here, mandatory detention subject only to the Department of Homeland Security's discretion to grant him humanitarian parole. (Doc. No. 27 at 6–7.) In support, Respondents primarily rely on the "entry fiction" promulgated in Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 213, 73 S.Ct. 625, 97 L.Ed. 956 (1953). This concept provided that "[a]lthough aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country." Barrera-Echavarria v. Rison , 44 F.3d 1441, 1450 (9th Cir. 1995) (citation omitted). Through this legal fiction, courts held that "[b]ecause excludable aliens are deemed under the entry doctrine not to be present on United States territory, a holding that they have no substantive right to be free from immigration detention reasonably follows." Id. at 1450. While the Ninth Circuit noted in 1995, that "[s]uch a result is conceptually defensible," id. , subsequent Supreme Court and Ninth Circuit case law indicate that such a result would not be constitutionally defensible.
For instance, in Zadvydas v. Davis , the Supreme Court stated:
A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to deprive any person of liberty without due process of law. Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.
533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (alterations and quotations omitted). See also id. at 694–95, 121 S.Ct. 2491 (declining to consider whether "subsequent developments have undermined Mezei's legal authority" but noting that Congress' plenary power "is subject to important constitutional limitations."). Pertinent here, in Jennings , Justice Breyer specifically laid out the indefensibility of applying the entry fiction to prevent the Constitution's most ancient right of freedom from arbitrary detention from attaching to certain aliens.
It is clear that the Fifth Amendment's protections extend to "all persons within the territory of the United States." ... But the Government suggests that those protections do not apply to asylum seekers or other arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.
This last-mentioned statement is, of course, false. All of these noncitizens are held within the territory of the United States at an immigration detention facility.... At most one might say that they are "constructively" held outside the United States: the word "constructive" signaling that we indulge in a "legal fiction," shutting our eyes to the truth. But once we admit to uttering a legal fiction, we highlight, we do not answer, the relevant question: Why should we engage in this legal fiction here?
The legal answer to this question is clear. We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so [ ] simple [is]: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution's boundaries. See Zadvydas, supra , at 720–721, 121 S.Ct. 2491 (KENNEDY, J., dissenting) ("inadmissible aliens" who are "stopped at the border" are "entitled to be free from detention that is arbitrary or capricious").
138 S. Ct. at 862–63 (BREYER, J. dissenting) (emphasis in original).
And on remand from Jennings , the Ninth Circuit emphasized that "arbitrary civil detention is not a feature of our American government" and expressed "grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional" Rodriguez , 909 F.3d at 256 (emphasis added). As such, the Court finds that the principles articulated in these decisions are highly indicative that the entry fiction doctrine does not trump the constitutional issues raised here. Indeed, various district courts have, post- Jennings , considered this very question and have similarly concluded, "agree[ing] that prolonged mandatory detention pending removal proceedings, without a bond hearing, will—at some point—violate the right to due process." Banda v. McAleenan , 385 F. Supp. 3d 1099, 1116 (W.D. Wash. 2019) (quotation and citation omitted) (collecting cases). Furthermore, the Court finds that Respondents' reliance on Mezei and Barrera-Echavarria is misplaced. Each are distinguishable from Petitioner's case. Mezei concerned an alien who, prior to filing his habeas petition, had already been permanently excluded from the United States on security grounds. 345 U.S. at 207, 73 S.Ct. 625 ("This case concerns an alien immigrant permanently excluded from the United States on security grounds but stranded in his temporary haven on Ellis Island because other countries will not take him back."). Unlike Mr. Mezei, Petitioner is not alleged to present national security concerns, has not been permanently excluded from the United States, and seeks a bond hearing prior to a conclusive decision on his application for admission. As such, the Court finds Mezei inapposite. See Rosales-Garcia v. Holland , 322 F.3d 386, 413–14 (6th Cir. 2003) (en banc) (noting that the Mezei Court is limited to the national security context in which it was decided); Lett v. Decker , 346 F. Supp. 3d 379, 386 (S.D.N.Y. 2018) (" Mezei may compel the conclusion that arriving aliens already excluded on national security grounds are not entitled to a bond hearing prior to their arranged deportation. However, Mezei does not compel the categorical conclusion that all arriving aliens may be subject to prolonged confinement without a bond hearing.").
See Djelassi v. ICE Field Office Dir. , 434 F. Supp. 3d 917, 920 (W.D. Wash. 2020) (arriving alien detained for 18 months entitled to a bond hearing); Banda v. McAleenan , 385 F. Supp. 3d 1099, 1116 (W.D. Wash. 2019) (arriving alien detained for approximately 17 months granted a bond hearing); Bermudez Paiz v. Decker , No. 18-4759, 2018 WL 6928794, at *9–*10 (S.D.N.Y. Dec. 27, 2018) (arriving alien granted bond hearing after more than 16 months in detention); Vargas v. Beth , 378 F.Supp.3d 716, 724-29 (E.D. Wis. 2019) (continued detention of returning LPR subject to mandatory detention for over 9 months with no date set for appeal, and a colorable defense to removal violated due process); Tuser E. v. Rodriguez , 370 F.Supp.3d 435 (D.N.J. 2019) (due process requires individualized bond hearing and prolonged 19-month detention is unreasonable); Jamal A. v. Whitaker , 358 F.Supp.3d 853, 858 (D. Minn. 2019) (returning LPR arriving alien granted bond hearing after 19 months); Pierre v. Doll , 350 F.Supp.3d 327 (M.D. Pa. 2018) (requiring bond hearing for non-LPR in prolonged detention for almost 2 years); Lett v. Decker , 346 F.Supp.3d 379 (S.D.N.Y. 2018) (prolonged detention under § 1225(b) without a bond hearing for over 10 months violated due process); Brissett v. Decker , 324 F.Supp.3d 444, 449-52 (S.D.N.Y. 2018) (returning LPRs have constitutional rights); Kouadio v. Decker , 352 F. Supp. 3d 235, 241 (S.D.N.Y. 2018) (34-month detention without bond hearing violated Due Process Clause); Perez v. Decker , No. 18-CV-5279 (VEC), 2018 WL 3991497, at *6 (S.D.N.Y. 2018) (almost year-long detention is unreasonable and individual bond hearing required).
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In Barrera-Echavarria , the issue of prolonged detention without a bond hearing was not at issue. 44 F.3d at 1450. ("We note that this case does not involve ... the constitutionality of ‘indefinite’ or ‘permanent’ detention with no prospect of release.") Rather, the case involved an excludable alien who "received a special one-time review by a Justice Department panel comprised of non-INS officials" and "ha[d] the opportunity on an annual basis to show that since the previous review he has changed his behavior and would no longer constitute a danger to society if paroled." Id. No such circumstances are present here. Petitioner received no special review before an impartial adjudicator and is afforded no periodic review of his custody status. As such, the Court also finds Barrera-Echavarria inapposite.
Accordingly, guided by basic notions of due process gleaned from recent Supreme Court and Ninth Circuit case law, the Court joins the majority of courts across the country in concluding that an unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing violates due process. See also Yagao v. Figueroa , No. 17-CV-2224-AJB-MDD, 2019 WL 1429582, at *2 (S.D. Cal. Mar. 29, 2019) ("[T]he Court agrees with the many district courts finding that prolonged detention without a bond hearing likely violates due process.").
B. Unreasonably Prolonged Detention
Turning to the remaining question of whether Petitioner's detention has been unreasonably prolonged, the Court applies, consistent with courts in this district, the six-factor analysis in Banda v. McAleenan which considers:
(1) total length of detention to date;
(2) likely duration of future detention;
(3) conditions of detention;
(4) delays in the removal proceedings caused by the detainee;
(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.
385 F. Supp. 3d at 1106 (quoting Jamal A. v. Whitaker , 358 F. Supp. 3d 853, 858–59 (D. Minn. 2019) ); see Djelassi v. ICE Field Office Dir. , 434 F. Supp. 3d 917, 920 (W.D. Wash. 2020) (applying the same test); see also Gonzalez v. Bonnar , No. 18-CV-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019) (applying a similar test). Respondents assert no alternative test.
Applying the factor-based test, the Court finds that the first factor, total length of detention, weighs in favor of Petitioner as he has been detained for over twenty-seven months—a very, very long time. See Banda , 385 F. Supp. 3d at 1118 ("Petitioner has been in detention for approximately 17 months, which is a very long time."). Given the stay of his removal order and anticipated request for a rehearing on the denial of his petition for review to the Ninth Circuit—coupled with the uncertainty of international travel due to the COVID-19 pandemic—he is likely to be in continued detention for several additional months. Thus, the Court finds that factor two, the likely duration of future detention, also weighs in favor of Petitioner. As to the third factor, conditions of detention, the Court notes that Petitioner is detained at OMDC, a private, for-profit detention center operated by CoreCivic, Inc., which also runs many state penitentiaries. Thus, his detention is "indistinguishable from penal confinement." Jamal , 358 F. Supp. 3d at 859 (citation and quotation marks omitted). Moreover, with Petitioner's medical history of tuberculosis and chronic pneumonia, the Court finds that confinement in a facility where he has little to no control over his surroundings and limited ability to protect himself from COVID-19 exposure further weighs in favor of Petitioner. (Doc. Nos. 12-2 at 13–15, 17–18, 23–24, 109; 17-1 at 1–2.)
Factor four, delays in the removal proceedings caused by the detainee, also weighs in favor of Petitioner because the record does not indicate that he has been dilatory in pursuing his rights. As for factor five, delays in the removal proceedings caused by the government, the Court notes that Petitioner's case was pending before the agency for fourteen months—well beyond the average completion time for removal proceedings in a detained case. See Demore , 538 U.S. at 529, 123 S.Ct. 1708. In fact, the IJ specifically noted in her decision that Petitioner "has been subjected to prolonged detention." (Doc. No. 8 at 25.) While Respondent was responsible for a three-month delay of the briefing schedule for his petition for review at the Ninth Circuit, the Court does not find this sufficient to counterbalance the length of time his case has been pending due to " ‘crowded dockets,’ which courts typically attribute to the Government—not the Petitioner." Djelassi , 434 F. Supp. 3d at 923. Finally, factor six, the likelihood that the removal proceedings will result in a final order of removal, weighs in favor of Respondents because although Petitioner seeks rehearing at the Ninth Circuit, its initial denial of his petition for review suggests a likelihood that the proceedings will culminate in a final order.
As five of the six factors—including "the length of detention, which is the most important factor," Banda , 385 F. Supp. 3d at 1118 —weigh in favor of Petitioner, the Court finds that he has been subject to unreasonably prolonged detention, and Respondents' failure to afford him an individualized bond hearing before an impartial adjudicator in the nearly twenty-eight months they have detained him violates his due process rights. As a district court in Minnesota noted: "It is important to bear in mind the context: The detention that is being examined here is the detention of a human being who has never been found to pose a danger to the community or to be likely to flee if released." Jamal , 358 F. Supp. 3d at 859.
Indeed, a month after his arrival into the United States, ICE granted Petitioner parole after finding him not to be a danger or a flight risk. (Doc. No. 27-1 at 4.) And while ICE revoked the parole due to an Interpol notice, that Interpol notice was later withdrawn, and at no point thereafter—despite Petitioner's continuous and subsequent requests for parole—did ICE reinstate its initial decision to grant him parole. The Court acknowledges Respondents' claim that Petitioner's requests for parole were denied because they determined him to be a flight risk, but the record does not support their contention. Nowhere in the August 2018 and March 2020 parole decisions do the words "flight risk" appear. (Doc. No. 27-1). Although Respondents did submit a document from the deportation officer assigned to Petitioner's case attesting that the parole denials were based on a finding of flight risk, the document is not signed, and thus, the Court declines to give it conclusive weight. In any event, the Court notes that the Ninth Circuit has found "that the discretionary parole system available to § 1225(b) detainees is not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention." Rodriguez v. Robbins , 715 F.3d 1127, 1144 (9th Cir. 2013).
Lastly, the Court finds that Jennings has not overruled the reasoning in Singh v. Holder , 638 F.3d 1196, 1203 (9th Cir. 2011) such that it would be inappropriate to place the burden of proof on the government at a bond hearing. See Gonzalez , No. 18-CV-05321-JSC, 2019 WL 330906, at *6 ("[N]umerous courts post- Jennings have rejected the government's suggestion that Jennings reversed appellate court decisions placing the burden on the government to justify prolonged detention by clear and convincing evidence."). Respondents offered no case law authority for its arguments to the contrary. Therefore, based on the foregoing analysis and the particular circumstances of this case, the Court GRANTS Petitioner's petition under 28 U.S.C. § 2241 for an individualized bond hearing with the procedural requirements set forth in Singh.
IV. CONCLUSION
In sum, the Court GRANTS Petitioner's petition under 28 U.S.C. § 2241 and DENIES AS MOOT his petition under the All Writs Act, 28 U.S.C. § 1651(a). Accordingly, the Court ORDERS that within 14 days of the date of this Order, Petitioner must be provided a bond hearing before an immigration judge, where the government bears the burden of establishing by clear and convincing evidence that Petitioner is a danger to the community or such a flight risk that no amount of bond or monitoring system can ensure his appearance for future proceedings, in order to continue his detention.