Opinion
Civil Action No. 1:20-cv-01289 (RDA/IDD)
2021-02-01
Fily Amaya MARTINEZ, Petitioner, v. Russell HOTT, et al., Respondents.
Eileen Patricia Blessinger, Blessinger Legal PLLC, Falls Church, VA, for Petitioner. Elizabeth Anne Spavins, United States Attorney's Office, Alexandria, VA, for Defendants Russell Hott, CHAD WOLF, Matthew T. Albence, Immigration and Customs Enforcement. John Michael Erbach, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.
Eileen Patricia Blessinger, Blessinger Legal PLLC, Falls Church, VA, for Petitioner.
Elizabeth Anne Spavins, United States Attorney's Office, Alexandria, VA, for Defendants Russell Hott, CHAD WOLF, Matthew T. Albence, Immigration and Customs Enforcement.
John Michael Erbach, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.
ORDER
Rossie D. Alston, Jr., United States District Judge This matter comes before the Court on Respondents Russell Hott's, Chad Wolf's, Matthew T. Albence's, and Immigration and Customs Enforcement's ("Government Respondents") Motion for Summary Judgment (Dkt. 10) and Petitioner Fily Amaya Martinez's ("Petitioner") Motion to Strike Paragraphs 16-19 from the Declaration of James Mullan ("Motion to Strike") (Dkt. 13). This Court has dispensed with oral argument as it would not aid in the decisional process. Local Crim. R. 47. This matter has been fully briefed and is now ripe for disposition. Considering Petitioner's Corrected Petition for Writ of Habeas Corpus ("Amended Habeas Petition") (Dkt. 2); the Government Respondents’ Motion for Summary Judgment (Dkt. 10); the Government Respondents’ Memorandum of Law in Support of their Motion for Summary Judgment (Dkt. 11); Petitioner's Response in Opposition to the Government Respondents’ Motion for Summary Judgment (Dkt. 15); the Government Respondents’ Reply Memorandum in Support of their Motion for Summary Judgment (Dkt. 16); Petitioner's Motion to Strike (Dkt. 13); the Government Respondents’ Opposition to Petitioner's Motion to Strike (Dkt 17); Petitioner's Reply in Support of his Motion to Strike (Dkt. 18); and Respondent Crawford's Show Cause Response (Dkt. 8), and for the following reasons, it is hereby ORDERED that Petitioner's Motion to Strike be GRANTED;
IT IS FURTHER ORDERED that the Government Respondents’ Motion for Summary Judgment be GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that Petitioner's request to voluntarily dismiss Claim Three of his Amended Habeas Petition be GRANTED;
IT IS FURTHER ORDERED that Claim Three of the Amended Habeas Petitioner be DISMISSED without prejudice; and
IT IS FURTHER ORDERED that Petitioner be afforded an individualized bond hearing within fifteen days of the entry of this Order. The Immigration Judge is directed to conduct the individualized bond hearing consistent with the procedures set forth in this Order.
I. BACKGROUND
A. Factual Background
Petitioner is a native of El Salvador who, on or about September of 1988, first entered the United States. Dkt. Nos. 2, ¶¶ 19-20; 11, ¶ 1. In November of 1995, he was "adjusted to lawful permanent resident status." Dkt. Nos. 2, ¶ 20; 11, ¶ 2.
In May of 2001, in the Fairfax County General District Court, Petitioner pleaded guilty to the misdemeanor offense of possession of marijuana in violation of Va. Code § 18.2-108. Dkt. Nos. 2, ¶ 27(i); 11, ¶ 3. Accordingly, he was sentenced to 240 days in jail and six months of community service. Dkt. 2, ¶ 27(i).
Subsequently, in October of that same year, Petitioner pleaded guilty to possession of marijuana in violation of Va. Code § 18.2-250.1, for which he was sentenced to 300 days of incarceration with 240 days suspended, a $100 fine, and received suspension of his driver's license for 6 months. Dkt. 2, ¶ 27 (ii).
Further, in November of that same year, in the Circuit Court of Fairfax County, Petitioner was found guilty of receiving stolen property in violation of Va. Code § 18.2-102, and was sentenced to 360 days of incarceration with 180 days suspended. Dkt. Nos. 2, ¶ 27(ii); 11, ¶ 3. That same month, Petitioner also pleaded guilty to unauthorized use of a vehicle in violation of Va. Code § 18.2-102 and was sentenced to 360 days of incarceration with 180 days suspended. Dkt. 2, 27(iv).
And, on or around September 16, 2002, Petitioner was "found guilty of misdemeanor carrying a concealed weapon – first offense, in [ ] [the] Fairfax County General District Court." Dkt. 11, ¶ 6.
On or around July 29, 2002, the then Immigration and Naturalization Service ("INS") issued Petitioner a Notice to Appear, and charged Petitioner with:
being an immigrant who, at any time after admission, was convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), which as defined in 8 U.S.C. § 1101(a)(43)(G), includes a law relating to a theft offense for which the sentence imposed was one year or more; and an immigrant who, at any time after admission, was convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. § 802 ), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, see 8 U.S.C. § 1227(a)(2)(B)(i).
Dkt. 11, 7 (citing Dkt. Nos. 11-1, ¶ 12; 2, ¶ 27).
On February 14, 2003, Petitioner appeared before the Arlington Immigration Court where the Immigration Judge ordered that Petitioner be removed from the United States to El Salvador. Dkt. Nos. 2, 5; 11, ¶ 8; 11-1, 8. Accordingly, on April 25, 2003, Petitioner was so removed. Dkt. Nos. 11, 9; 11-1, 14.
Sometime after his removal, Petitioner returned to the United States and "entered without inspection." Dkt. Nos. 11, ¶ 10; 11-1, ¶ 15.
On October 12, 2018, the Department of Homeland Security arrested Petitioner and reinstated the 2003 order of removal. Dkt. Nos. 2, ¶ 22; 11, ¶ 15; 11-1, ¶ 20. Thereafter, on January 11, 2019, in the Eastern District of Virginia, Petitioner was charged with and pleaded guilty to illegal reentry after conviction of an aggravated felony in accordance with 8 U.S.C. § 1326. Dkt. Nos. 2, ¶ 23; 11, ¶ 17. As a result of that conviction, Petitioner was sentenced to 366 days of incarceration and was committed to the custody of the Bureau of Prisons ("BOP"). Dkt. Nos. 2, ¶ 23; 11, ¶ 17; 11-1, ¶ 23.
Then, on September 20, 2019, after being released from the custody of the BOP, Petitioner was taken into custody by Immigration and Customs Enforcement ("ICE") and was detained at the Farmville Detention Center, where he remains. Dkt. Nos. 2, ¶ 23; 11, ¶ 18; 11-1, ¶ 24.
On October 4, 2019, the United States Citizenship and Immigration Services ("USCIS") determined that Petitioner was in "reasonable fear" of returning to El Salvador, issued Petitioner a form I-863, and referred the matter to the Arlington Immigration Court for withholding proceedings. Dkt. Nos. 2, ¶ 5; 11, ¶ 20; 11-1, ¶ 26. There, Petitioner requested bond, and after ICE filed information regarding Petitioner's criminal history, Petitioner's counsel withdrew the request for bond and "agreed that Petitioner was subject to mandatory detention" under 8 U.S.C. § 1226 (c). Dkt. 11, 20; 11-1, ¶ 26.
On January 7, 2020, Petitioner applied for withholding of removal and protection under the Convention Against Torture, and the Immigration Judge scheduled a hearing on Petitioner's application for March 5, 2020. Dkt. Nos. 2, ¶ 25; 11, ¶ 21; 11-1, ¶ 27. At the request of Petitioner's counsel, the hearing was rescheduled to March 23, 2020. Dkt. Nos. 11, ¶ 22; 11-1, ¶ 28. On March 23, 2020, Petitioner's counsel requested another continuance, which the Immigration Judge granted. Dkt. Nos. 11, ¶ 23; 11-1, ¶ 29. In turn, the hearing on Petitioner's application was rescheduled for May 20, 2020, and the hearing did, in fact, commence on that day. Dkt. Nos. 11, ¶¶ 23-24; 11-1, ¶ 29-30.
On August 4, 2020, United States Immigration Judge Deepali Nadknari issued a written decision granting Petitioner's application for withholding of removal under the Convention Against Torture Act. Dkt. Nos. 2, ¶ 26; 11, ¶ 26; 11-1, ¶ 32. On September 3, 2020, ICE appealed Judge Nadknari's decision to the Board of Immigration Appeals ("BIA"). Dkt. Nos. 2, ¶ 26; 11, ¶ 28; 11-1, ¶ 34. That appeal remains pending before the BIA. Dkt. Nos. 2, ¶ 26; 11, ¶ 29; 11-1, ¶ 35.
B. Procedural Background
On October 30, 2020, Petitioner commenced this action by filing a Petition for Writ of Habeas Corpus in this Court. Dkt. 1. On November 19, 2020, Petitioner filed an Amended Petition for a Writ of Habeas Corpus. Dkt. 2. Then, on December 3, 2020, this Court ordered all Respondents to show cause as to why Petitioner's Amended Habeas Petition should not be granted within three days of December 3, 2020. Dkt. 6.
Accordingly, Respondent Jeffrey Crawford ("Respondent Crawford") replied by indicating that he "is not a government employee of any kind," but rather, he "is employed as the Director of Immigration Centers of America – Farmville, LLC[,]" which is a private entity that "provides services" to ICE. Dkt. 8, ¶¶ 1, 2. As such, he indicated that he "underst[ood] that he is a nominal respondent named in this case" as he is "the immediate custodian of" Petitioner. Id. at ¶ 3. Respondent Crawford further averred that he would "abide by any directive, final order or judgment (pending appeal if execution of such final order or judgment is stayed pending appeal) entered by this Court directing him to act with respect to Petitioner." Id. at ¶ 4.
The Government Respondents responded to the Court's December 3, 2020 Order by filing the instant Motion for Summary Judgment and attached the Declaration of James Mullan ("Mullan Declaration") to their Memorandum in Support of that motion. Dkt. Nos. 10; 11; 11-1. On December 18, 2020, Petitioner moved to strike the Mullan Declaration, and on December 21, 2020, Petitioner opposed the Government Respondents’ Motion for Summary Judgment. Dkt. Nos. 13; 15. The Government Respondents opposed Petitioner's Motion to Strike (Dkt. 17), and filed a reply in furtherance of their Motion for Summary Judgment (Dkt. 16), while Petitioner filed a reply in support of his Motion to Strike (Dkt. 18).
II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson , 477 U.S. at 247-28, 106 S.Ct. 2505. A "material fact" is one that might affect the outcome of a party's case. Id. at 248, 106 S.Ct. 2505 ; JKC Holding Co. v. Wash. Sports Ventures, Inc. , 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Hooven-Lewis v. Caldera , 249 F.3d 259, 265 (4th Cir. 2001). A "genuine" issue concerning a "material fact" arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the non-moving party's favor. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Rule 56(e) requires the non-moving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56 (c)(4).
III. ANALYSIS
In his Amended Habeas Petition, Petitioner sets forth three claims of relief: (1) that Respondents violated the Due Process Clause of the Fifth Amendment to the United States Constitution ("Claim One"); (2) that Respondents violated 8 U.S.C. § 1226 ("Claim Two"); and (3) that Respondents violated Petitioner's substantive due process rights under the Fifth Amendment to the United States Constitution ("Claim Three"). Dkt. 2, ¶¶ 78-91.
In response to the Amended Habeas Petition, the Government Respondents filed their Motion for Summary Judgment, to which the Government attached the Mullan Declaration. Dkt. Nos. 10; 11-1. In that motion, the Government Respondents argue that the Court should deny Petitioner's Amended Habeas Petition because the claims contained therein "lack merit." Dkt. 11, 1. While the parties seem to agree that Petitioner is detained pursuant to 8 U.S.C. § 1226(c), the Government Respondents contend that summary judgment is appropriate for two primary reasons. See generally , Dkt. 1. First, the Government Respondents urge that Claims One and Two should be rejected because Petitioner's continued detention does not violate 8 U.S.C. § 1226 or the Due Process Clause. Id. at 11-21. Second, the Government Respondents argue that Claim Three should be denied because in that claim, Petitioner "challenges his conditions of confinement but seeks the impermissible relief of immediate release, which is not available for such a claim." Id. at 21. And further, the Government Respondents contend that "[e]ven if Petitioner could theoretically challenge the conditions of his confinement based on COVID-19 through his [Amended] [H]abeas [P]etition, he fails to state such a claim." Id. at 23 (emphasis in original).
In response to the Government Respondents’ Motion for Summary Judgment, Petitioner filed his Motion to Strike. Dkt. 13. In that motion, Petitioner argues that paragraphs 16-19 of the Mullan Declaration should be stricken. See generally, id. And regarding the substantive issues that the Government Respondents raise, Petitioner posits that Claims One and Two are sufficient. Dkt. 15, 4-14, 15. Thus, he believes he "is entitled to a bond hearing at which the [G]overnment [should] bear[ ] the burden of continued detention; absent such a hearing, or if the [G]overnment cannot meet its burden, [ ] [Petitioner] must be ordered released forthwith." Id. Petitioner requests leave to voluntarily dismiss Claim Three without prejudice. Id. at 14.
Accordingly, there are four issues before this Court. First, this Court must discern whether to strike paragraphs 16-19 of the Mullan Declaration. Second, the Court must decide whether Petitioner's detention violates the Due Process Clause of the Fifth Amendment of the United States Constitution or 8 U.S.C. § 1226(c). And if his detention does indeed violate either provision, third, the Court must determine the contours of the proper remedy. Fourth and finally, the Court must adjudicate whether Plaintiff should be granted leave to voluntarily dismiss Claim Three. The Court will address each issue in turn.
A. Petitioner's Motion to Strike
As a threshold matter, the Court will first address whether Paragraphs 16-19 of the Mullan Declaration should be stricken.
As set forth above (supra , p. 830), the Government Respondents attached the Mullan Declaration to their Motion for Summary Judgment. See generally , Dkt. 11-1. Therein, Assistant Field Office Director James Mullan ("AFOD Mullan") declares that he has been employed with the "Department of Homeland Security ..., Immigrations and Customs Enforcement ("ICE"), Enforcement and Removal Operations ("ERO"), since July [of] 2002." Id. at ¶ 1. In his current capacity, he "supervise[s] [the] management of detaine[e] cases throughout immigration proceedings as well as overall detention procedures and conduct." Id. AFOD Mullan submitted the Mullan Declaration based on:
a review of information contained in the alien file of Petitioner, records and databases maintained by ICE, and other documents and physical evidence relevant to Petitioner; [ ] [AFOD Mullan's] own personal knowledge and observations during the course of [his] [ ] official duties; and information conveyed to [AFOD Mullan] by other law enforcement officials.
Id. at ¶ 3. Further, AFOD Mullan has "been personally involved in managing the case of Petitioner[.]" Id.
In Paragraphs 16-19 of the Mullan Declaration, AFOD Mullan describes that:
On or around September 21, 2009, a Specialized Examining Magistrate in El Salvador issued an arrest warrant for Petitioner for Aggravated Homicide.
* * * *
On or around January 15, 2010, a Specialized Examining Magistrate in El Salvador issued an arrest warrant for Petitioner for Attempted Aggravated Homicide (committed against a different individual than the arrest warrant referenced in paragraph 16).
* * * *
On or around January 21, 2010, a Specialized Examining Magistrate in El Salvador issued an arrest warrant for Petitioner for Aggravated Homicide (committed against a different individual than the arrest warrants referenced in paragraphs 16-17).
* * * *
On or around November 9, 2010, a Specialized Examining Magistrate in El Salvador issued an arrest warrant for Petitioner for being a co-perpetrator for the crime of Aggravated Murder (committed against a different individual than the arrest warrants referenced in paragraphs 16-18) and criminal association.
Id. at ¶¶ 16-19.
Petitioner argues that this Court should strike these paragraphs of the Mullan Declaration because he believes those paragraphs are "rife with hearsay, to which no hearsay exception applies," and also because the statements contained within paragraphs 16-19 "violate[ ] the best evidence rule." Dkt. 13, ¶ 6. Petitioner's position is that although AFOD Mullan has generally set forth the basis under which he made the statements contained within his declaration, those general statements are insufficient because they do not "distinguish[ ] which purported facts are to the personal knowledge of [AFOD] Mullan [and] which purported facts are based purely on hearsay." Id. Further, Petitioner explains that the Mullan Declaration "fails to state the source of any of the information, aside from the vague statement that the facts were obtained from ‘information contained in the alien file,’ ‘records and databases maintained by ICE,’ ‘other documents and physical evidence,’ and ‘information conveyed to [AFOD Mullan] by other law enforcement officials.’ " Id. And specifically, Petitioner takes issue with paragraphs 16-19 because in those paragraphs, AFOD Mullan "does not specify that he knows [about the information contained therein] from personal knowledge." Id. at ¶ 7. Thus, Petitioner reasons that in light of this ambiguity, and because AFOD Mullan is not employed by the Salvadoran law enforcement agency that supposedly issued these warrants, AFOD Mullan must "lack[ ] personal knowledge of the contents of these warrants[,]" and therefore, the paragraphs of the Mullan Declaration referencing these warrants should be stricken. Id.
The Government Respondents counter that the Court should deny Petitioner's Motion to Strike because paragraphs 16-19 of the Mullan Declaration do not constitute hearsay. Dkt 17, 2-3. The Government Respondents contend that the statements in paragraphs 16-19 are not hearsay because they are not being offered for the truth of the matter asserted as they are not presented to the Court to prove that "Petitioner committed the crimes described in the warrants." Id. at 2 (quoting United States v. Guerrero-Damian , 241 F. App'x 171, 173 (4th Cir. 2007) ; (citing Fed. R. Evid. 801(c) )) (also citing United States v. Pratt , 239 F.3d 640, 643-44 (4th Cir. 2001) ). Instead, the Government argues that those statements are "provided to this Court in order to explain what information was presented to the Immigration Judge during removal proceedings thus far." Dkt. 17, 2. And even if the statements are hearsay, the Government Respondents maintain that because they have also filed the actual warrants that form the basis of AFOD Mullan's statements, and those warrants are admissible pursuant to the public records exception to the general rule against hearsay, Petitioner's Motion to Strike is moot. See generally , Dkt. 17.
In light of these arguments, the Court will address whether paragraphs 16-19 of the Mullan Declaration should be stricken and whether the Court may consider the warrants and translations of those warrants set forth in Dkt. Nos. 17-1 and 17-2 in deciding the Motion for Summary Judgment.
i. Paragraphs 16-19 of the Mullan Declaration
As explained above (supra , p. 830), "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56 (c)(4). And to be sure, hearsay is defined as an out of court statement offered for the truth of the matter asserted, and such statements are inadmissible unless they fall into an exception or exemption to the rule against hearsay evidence. Fed. R. Evid. 801 -04, 807 ; see also, Guerrero-Damian , 241 F. App'x at 173 ("A statement offered for a purpose other than to prove the truth of the assertion contained within the statement is not inadmissible hearsay.").
The Government contends that AFOD Mullan's statements, which assert that a Salvadoran law enforcement agency issued multiple arrest warrants as to Petitioner, are not hearsay because those statements are not being offered to prove that Petitioner actually committed the alleged crimes that are the subject of the warrant. Dkt. 17, 2. Let it be clearly stated that this Court finds that the statements that are at issue, are not that Petitioner actually committed certain crimes. Dkt. 11-1, ¶¶ 16-19. Rather, the statements offered by the Government Respondents are that there are four Salvadoran arrest warrants issued pertaining to Petitioner that allege that Petitioner committed aggravated homicide, attempted aggravated homicide, and aggravated murder with respect to four different individuals. Id.
Moreover, while the Government Respondents urge that they are using AFOD Mullan's statements concerning the warrants to "explain what information was presented to the Immigration Judge during removal proceedings thus far," a review of the Government Respondents’ Memorandum in Support of their Motion for Summary Judgment reveals that this is not the case. See Dkt. 11, 15. For example, on page 15 of their Memorandum in Support of their Motion for Summary Judgment, the Government Respondents specifically maintain that:
there are multiple outstanding warrants for Petitioner's arrest in El Salvador for violent crimes including multiple aggravated homicides .... Petitioner's detention particularly comports with the purposes of § 1226(c) because Petitioner committed multiple crimes after entering the United States and is the subject of multiple arrest warrants in El Salvador."
Id. (citing to paragraphs 16-19 of the Mullan Declaration). Accordingly, at least in this one instance, the Government Respondents do not merely use paragraphs 16-19 of the Mullan Declaration to "explain what information was presented to the Immigration Judge during removal proceedings thus far[,]" as the Government Respondents maintain is the intended purpose of offering those statements. Compare , Dkt. 17, 2, with , Dkt. 11, 15.
Thus, this Court finds that indeed the statements have been offered for the truth of the matter asserted, which is that these arrest warrants were indeed issued. And based on the circumstances presented, it appears that the statements standing alone do, in fact, constitute hearsay. As such, the Court will strike paragraphs 16-19 of the Mullan Declaration.
ii. The Warrants and Translations
The Government Respondents’ alternative argument is effectively that whether these statements are hearsay is irrelevant because the Government Respondents have attached the actual warrants, and the certified translated versions of those warrants, as exhibits to their Opposition to the Motion to Strike. See Dkt. Nos. 17, 3; 17-1; 17-2. While submission of the warrants and translations might address Petitioner's "best evidence" argument, the Court finds that it cannot consider the warrants and translations pursuant to the public records exception to the rule against hearsay. See Fed. R. Evid. 803(8). Under that exception, in relevant part, "[a] record or statement of a public office" is "not excluded by the rule against hearsay" if "it sets out ... in a civil case[,] ... factual findings from a legally authorized investigation; and the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness." Id. It is important to note that the opponent of the evidence, here, Petitioner, "is not necessarily required to introduce affirmative evidence of untrustworthiness.... A determination of untrustworthiness necessarily depends on the circumstances." Fed. R. Evid. 803 advisory committee's note to 1975 amendment.
Here, however, Petitioner does challenge the trustworthiness of the warrants. Dkt. 18, 6-8. In support of his position that the warrants are not trustworthy, Petitioner points to the findings of United States Immigration Judge Deepali Nadkarni, who considered and decided to grant Petitioner's Application for Asylum and for Withholding of Removal under the Immigration and Nationality Act ("INA"). Id. at 7-8 (citing Dkt. 1-3, 9-10). Indeed, after hearing all of the evidence in support and against Petitioner's Application for Asylum and for Withholding, Judge Nadkarni found that "the evidence d[id] not sufficiently indicate that there is probable cause or serious reasons for believing that [ ] [Petitioner] committed the crimes described in the Salvadoran warrants ...." Dkt. 1-3, 9. Judge Nadkarni further explained that this finding was warranted because:
[T]he Salvadoran arrest warrants were issued nearly nine months and then one year after [ ] [Petitioner] had already been living in the United States. [ ] [Petitioner] testified that he d[id] not know any information about the circumstances surrounding the warrants, ha[d] nothing to do with those crimes, and did not commit those crimes. None of the warrants indicate the date of the alleged homicide or attempted homicide and do not provide any specific details regarding how [ ] [Petitioner] [ ] [was] allegedly involved. Moreover, [ ] [Petitioner's] testimony, [Petitioner's] [ ] expert [witness's] testimony, and the record evidence sufficiently indicate[d] that the Salvadoran government has a practice of indiscriminately issuing baseless warrants for arrest as a means to harass suspected gang members. In fact, [ ] [Petitioner] credibly testified that while he was living in El Salvador, the police arrested, falsely accused, and charged him approximately five times for crimes he did not commit and was never convicted of.
Id. at 9-10. And in addition to pointing to Judge Nadkarni's findings, Petitioner argues that the warrants are untrustworthy because they: (1) "contain no indication that Petitioner could have committed the described crimes[;]" (2) "do not describe Petitioner's alleged involvement in the crimes, nor do they indicate when the crimes were purported to have taken place[;]" and (3) as Judge Nadkarni pointed out, "Petitioner had already been living in the United States for nearly a year before the warrants were issued." Dkt. 18, 8. Considering all of these circumstances, the Court finds that Petitioner has met his burden in demonstrating circumstances surrounding the warrants "indicate a lack of trustworthiness." Fed. R. Evid. 803(8)(B). As such, the Court will not consider the warrants in deciding the Motion for Summary Judgment.
B. The Government Respondents’ Motion for Summary Judgment
In Claims One and Two of his Amended Habeas Petition, Petitioner argues that his now 16-month detention violates the Fifth Amendment's Due Process Clause and 8 U.S.C. § 1226. Dkt. 2, ¶¶ 78-87. In Claim Three, he asserts that the conditions of his confinement violate his Fifth Amendment substantive due process rights. Id. at ¶¶ 88-91.
In response, the Government Respondents request that this Court grant summary judgment in their favor as to all three of Petitioner's claims. See generally , Dkt. 11. They contend that this is the appropriate remedy as to Claims One and Two because Petitioner's " § 1226(c) detention comports with due process[,]" under the applicable standards. Id. at 1-2, 8-19. The Government Respondents maintain that the standard set forth in Demore v. Kim , 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), is applicable to determine whether Petitioner's detention runs afoul with his due process right. See id. at 1. In the alternative, the Government Respondents argue that should this Court find that the standard propounded in Portillo v. Hott , 322 F. Supp. 3d 698 (E.D. Va. 2018), is applicable, nevertheless, Petitioner's detention does not violate his due process rights. Dkt. 11, 2. The Government Respondents also maintain summary judgment is appropriate as to Petitioner's third claim because Petitioner's challenges to his conditions of confinement are not actionable through a habeas petition, and even if they were, Petitioner fails to state a claims that his conditions amount to punishment or that the Government Respondents have acted with deliberate indifference. Id. at 2, 21-28.
With respect to his first and second claims, Petitioner contends that his detention under § 1226(c) does not comport with due process. Dkt. 15, 4-11. He argues that this Court should apply the Portillo standard, and under that framework, his "prolonged detention" without a bond hearing violates his due process rights. Id. Petitioner moves to voluntarily dismiss his third claim. Id. at 14.
i. Petitioner is Entitled to an Individualized Bond Hearing
It is first important to note that here, the parties agree that Petitioner is detained pursuant 8 U.S.C. § 1226(c). See Dkt. Nos. 11, 8-9; 15, 5; see also 8 U.S.C. § 1226(c). This is crucial because determining what statute underlies Petitioner's detention is significant as it bears on whether Petitioner is entitled to an individualized bond hearing. "[I]t is well-established that aliens detained under § 1226 must receive bond hearings if their lengthy detentions violate Due Process." Bah v. Barr , 409 F. Supp. 3d 464, 467 (E.D. Va. 2019) (citing Diop v. ICE/Homeland Sec. , 656 F.3d 221, 232-33 (3d Cir. 2011), abrogated on other grounds, Borbot v. Warden Hudson Cty. Corr. Facility , 906 F.3d 274 (3d. Cir. 2018) ).
The Court agrees with all parties that Petitioner is detained pursuant to 8 U.S.C. § 1226(c). 8 U.S.C. § 1226 permits the detention of an alien "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. 1226(a). And "[f]or certain individuals with criminal histories," such as Petitioner, "detention is mandatory." Guzman Chavez v. Hott , 940 F.3d 867, 873 (4th Cir. 2019) (citing 8 U.S.C. § 1226 (c) ), cert. granted sub nom. Pham v. Guzman Chavez , ––– U.S. ––––, 141 S.Ct. 107, 207 L.Ed.2d 1050 (2020) ). To be sure, 8 U.S.C. § 1226 provides that "[t]he Attorney General shall take into custody any alien who" has committed certain criminal offenses.
Indeed, Petitioner is detained "pending a decision on whether [ ] [he] is to be removed from the United States" as the Arlington Immigration Court has granted Petitioner's application for withholding of removal under the INA, and ICE filed a timely appeal of the Arlington Immigration Court's decision. Dkt. 2, ¶¶ 32-33. And, given Petitioner's criminal history, Dkt. Nos. 2, ¶ 27; ¶¶ 3-6, his detention is mandatory pursuant to § 1226(c).
Thus, this Court must determine whether the length of Petitioner's detention without a bond hearing is improper. "The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law." Bah , 409 F. Supp. 3d at 470 (quoting U.S. Cost. amend. V). This protection extends to aliens in immigration proceedings. Bah , 409 F. Supp. 3d at 470 (citing Zadvydas v. Davis , 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ).
The Supreme Court's jurisprudence regarding the constitutional concerns attendant with the prolonged detentions of aliens provides the contours for this Court's analysis. In Demore , an alien was detained pursuant to § 1226(c). 538 U.S. at 513-14, 123 S.Ct. 1708. In that case, the Supreme Court observed that detention under § 1226(c) has "a definite termination point," and that "the detention at stake under § 1226(c) lasts roughly" between "a month and a half ... and about five months." Demore , 538 U.S. at 528-530, 123 S.Ct. 1708 ; see also Bah , 409 F. Supp. 3d at 470. Additionally, as this Court has recognized on prior occasions, in Demore , "Justice Kennedy joined the Demore majority opinion on the understanding that an alien ‘could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued became unreasonable or unjustified.’ " Bah , 409 F. Supp. 3d at 470 (quoting Demore , 538 U.S. at 532-33, 123 S.Ct. 1708 ) (Kennedy, J., concurring). And, in the wake of Demore , "multiple circuit courts have ordered bond hearings for aliens detained pursuant to § 1226(c)." Bah , 409 F. Supp. 3d at 470 (citing Diop , 656 F.3d at 232-33 ; Borbot , 906 F.3d at 278 ).
In the case at bar, the Government Respondents argue that "Petitioner's detention does not violate due process because his removal proceedings have a definite termination point and there is no evidence that ICE is detaining him for any purpose other than to protect against risk of flight or dangerousness." Dkt. 11, 13. However, Petitioner's now 16-month detention has far-exceeded the typical length of detention for those detained pursuant to § 1226(c) and has become "unreasonable or unjustified" as a matter of fact and as a matter of law. Bah , 409 F. Supp. 3d at 470 (quoting Demore , 538 U.S. at 532-33, 123 S.Ct. 1708 ) (Kennedy, J., concurring).
Moreover, this Court also recognizes the five-factor test this Court developed to determine whether continued detention without a bond hearing comports with due process. Portillo , 322 F. Supp. 3d at 707. Under that framework, a court may consider:
(1) the duration of detention, including the anticipated time to completion of the alien's removal proceedings; (2) whether the civil detention exceeds the criminal detention for the underlying offense; (3) dilatory tactics employed in bad faith by the parties or adjudicators; (4) procedural or substantive legal errors that significantly extend the duration of detention; and (5) the likelihood that the [G]overnment will secure a final removal order.
Id. The first factor "is the most important." Id. (quoting Haughton v. Crawford , No. 1:16-cv-634, 2016 WL 5899285, at *8 (E.D. Va. Oct. 7, 2016) ).
Factor one weighs in Petitioner's favor as Petitioner has been detained for 16 months—9 months longer that the outermost limit of the typical time periods for detention under § 1226(c), as recognized by the Supreme Court, Demore , 538 U.S. at 528-530, 123 S.Ct. 1708.
As for the second factor—whether civil detention exceeds criminal detention for the underlying offense—the parties seem to agree that this factor cuts in Petitioner's favor as 16 months is greater than the sentences that Petitioner served for his underlying convictions (8 months). See Dkt. Nos. 15, 8-9; Dkt. 11, 18; Dkt. 2, ¶ 27(i)(ii); Dkt. 11-1, ¶¶ 8-9.
Factor three stands in equipoise because there is no evidence to support the conclusion that either party has acted in bad faith.
With respect to factor four, the Government Respondents suggest that this factor weighs against Petitioner because Petitioner's own actions extended his detention. Dkt. 11, 18. To this end, the Government Respondents point out that "[o]nly Petitioner has requested [ ] extensions in the current removal proceedings ...." Id. This Court finds that to balance this factor against Petitioner would "impermissibly penalize[ ] an alien's exercise of his legal rights," and does not "mitigate the Due Process concerns" at issue. Bah , 409 F. Supp. 3d at 471-72 (quoting Ly v. Hansen , 351 F.3d 263, 272 (6th Cir. 2003) ). Thus, factor four also stands in equipoise as Petitioner is taking advantage of the procedural rights available to him.
As for the fifth factor, the Court observes that both parties naturally predict that the BIA will rule in their favor. And while it may be the case that the Arlington Immigration Court ruled in Petitioner's favor, it is at best speculative to presume that the BIA will necessarily affirm that ruling.
Considering the Supreme Court jurisprudence and the five-factor test, this Court finds Petitioner's continued detention without a bond hearing is unreasonable. Thus, Petitioner is entitled to an individualized bond hearing.
ii. The Individualized Bond Hearing Must Comport with Due Process
With respect to ordering individualized bond hearings, jurists in this district have set forth different procedures. In Bah , the Court analogized that alien's bond hearing to a criminal pre-trial bond hearing and found that that particular petitioner bore the initial burden of producing "evidence that favors release." 409 F. Supp. 3d at 472. Ultimately, however, the Government was required to prove " ‘to the satisfaction of the [Immigration Judge] that’ no condition or combination of conditions ... will reasonably assure the appearance of the person as required and the safety of any other person and the community." Id. (citing 8 C.F.R. § 1236.1 ). In Portillo , the Court considered that "in light of the ongoing infringement of the alien's liberty interest and the strong tradition that the burden of justifying civil detention falls on the [G]overnment, the ‘balance between individual and [G]overnment interests requires that the burden of justifying petitioner's continued detention falls upon the [G]overnment.’ " 322 F. Supp. 3d at 709 (quoting Haughton , 221 F. Supp. 3d at 714 ). In Portillo , the Court required the Government to " ‘demonstrate by clear and convincing evidence that petitioner's ongoing detention is appropriate to protect the community and ensure petitioner's appearance at future proceedings.’ " Id.
However, in Mauricio-Vasques v. Crawford , the Court considered that "there is a strong interest in consistency in applying the same standard to criminal aliens as to non-criminal aliens," found that the petitioner "ha[d] not demonstrated why a criminal alien should be treated more deferentially than a non-criminal alien," and noted that it was "not the place of a federal court to craft a new standard." No. 1:16-cv-1422, 2017 WL 1476349, at *6 (E.D. Va. 2017). The Court deferred to "the agency's existing regulations" outlined in 8 C.F.R. § 236.1(c)(8) and held that the petitioner bore the burden to " ‘demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceedings.’ " Id. (citing 8 C.F.R. § 236.1(c)(8) ).
In addition, the Fourth Circuit has held that petitioners who were entitled to individualized bond hearing subject to reinstate removal orders, and who sought withholding of their removal, were detained pursuant § 1226. Guzman Chavez , 940 F.3d at 882. The Fourth Circuit then found that at their individualized bond hearings, those aliens "must carry their burden of proving that they are eligible for conditional release." Id. (citing 8 C.F.R. § 236.1 (c)(8) ). Section 236.1 (c)(8) provides that:
[a]ny officer authorized to issue a warrant of arrest may, in the officer's discretion release an alien ... provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceedings.
Existing regulations and Fourth Circuit authority guide this Court's determination on this matter. Accordingly, Petitioner "must demonstrate to the satisfaction of the [Immigration Judge] that such release would not pose a danger to property or persons, and that [ ] [he] is likely to appear for any future proceeding." Id.
C. Petitioner's Request for Voluntary Dismissal of Claim Three
In his Opposition to the Government Respondents’ Motion for Summary Judgment, Petitioner requested leave to dismiss Claim Three without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). Dkt. 15, 14. Petitioner has indicated that "[b]ased on information and [his] belief, the situation at Farmville Detention Facility," where he is presently detained, "has improved since the filing of the virus," and therefore, "[a]t this time, the [C]ourt need no decide whether hypothetical events could constitute a due process violation, or otherwise find on the merits of Claim [ ] [Three]." Id.
Fed. R. Civ. P. 41(a)(2) provides in relevant part that, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." In light of Petitioner's representations, the Court deems Petitioner's voluntary dismissal of Claim Three as proper. Accordingly, Claim Three is DISMISSED without prejudice.
IV. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that Petitioner's Motion to Strike (Dkt. 13) is GRANTED;
IT IS FURTHER ORDERED that the Government Respondents’ Motion for Summary Judgment (Dkt. 10) is GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that Petitioner's request to voluntarily dismiss Claim Three of his Amended Habeas Petition be GRANTED; and
IT IS FURTHER ORDERED that Petitioner be afforded an individualized bond hearing within fifteen days of the entry of this Order. The Immigration Judge is directed to conduct the individualized bond hearing consistent with the procedures set forth in this Order.
It is SO ORDERED.