Opinion
Civil Action No. 1:21-cv-00764
2021-10-22
Hanif KHAN, Plaintiff, v. Shawn BYERS, et al., Defendants.
Jennifer Kwon, Legal Aid Justice Center, Richmond, VA, Simon Yehuda Sandoval-Moshenberg, Legal Aid Justice Center, Fall Church, VA, for Plaintiff. Peter B. Baumhart, US Attorney's Office, Alexandria, VA, for Defendants Shawn Byers, Alejandro Mayorkas, Attorney General Merrick Garland.
Jennifer Kwon, Legal Aid Justice Center, Richmond, VA, Simon Yehuda Sandoval-Moshenberg, Legal Aid Justice Center, Fall Church, VA, for Plaintiff.
Peter B. Baumhart, US Attorney's Office, Alexandria, VA, for Defendants Shawn Byers, Alejandro Mayorkas, Attorney General Merrick Garland.
ORDER
Liam O'Grady, United States District Judge Before the Court is Petitioner Hanif Khan's Petition for a Writ of Habeas Corpus, Dkt. 1, and Defendants' Motion for Summary Judgment, Dkt. 14. Mr. Khan petitions this Court for a writ of habeas to "remedy his unconstitutional detention by Respondents." Dkt. 1 at 1. Mr. Khan has been held in the custody of Immigration and Customs Enforcement ("ICE") since October 23, 2018 and challenges his prolonged detention without a renewed bond hearing. Id. at 2.
Based on the following analysis, Mr. Khan's Petition for a Writ of Habeas Corpus, Dkt. 1, is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment, Dkt. 14, is DENIED.
I. BACKGROUND
A. Mr. Khan's Arrival and Arrest
Petitioner Hanif Khan is 36-years old and a native of Pakistan. His parents fled from Afghanistan to Pakistan after the Soviet invasion of Afghanistan. While Mr. Khan has obtained Pakistani identification documents in the past, he understands those documents to have been revoked, and does not understand himself to be a citizen of Pakistan. Dkt. 1 at 6.
Mr. Khan came to the United States on a student visa in August 2015. His student visa was later terminated, but he remained in the United States. See Dkt. 1 at 6; Dkt. 15 at 6. Mr. Khan states that "he has significant ties to the community, including [previously] stable employment history at an Exxon gas station and regular participation at the Islamic Center of Henrico." Dkt. 1 at 6.
In February 2018, Mr. Khan was arrested and charged with two counts of sexual battery. While working as a driver for Uber, a ride-sharing service, Mr. Khan falsely claimed to be the Victim's Uber driver and then groped her and forced her to touch him inappropriately while in his car. Dkt. 15 at 6. In August 2018, one of the two counts of sexual battery was dismissed nolle prosequi , while the other was amended to a misdemeanor assault. Mr. Khan pleaded guilty to the misdemeanor assault charge. He was sentenced to 90 days of jail time with all 90 days suspended. Dkt. 1 at 7.
On October 23, 2018, Mr. Khan was arrested by ICE at his residence and placed into removal proceedings. He has been detained by ICE since that date. Id.
B. Mr. Khan's Legal Proceedings
Congress has authorized the Department of Homeland Security ("DHS") to detain non-citizens during their removal proceedings. The Immigration and Nationality Act, 8 U.S.C. § 1226(a) authorizes that, during such removal proceedings, individuals may be eligible for release from detention on bond or conditional parole unless they have committed certain criminal or national security offenses (not at issue here) rendering them subject to mandatory detention under § 1226(c). See Dkt. 1 at 5. ICE makes initial custody determinations for individuals detained under § 1226(a). Thereafter, non-citizens may seek review of an ICE custody determination before an Immigration Judge at a hearing known as a bond hearing. 8 C.F.R. §§ 1003.19(a) and (h)(2)(i). At the bond hearing, the Immigration Judge determines whether continued detention is necessary, or whether the non-citizen may be released on bond, recognizance, or other conditions. See U.S.C. § 1226(a); 8 C.F.R. § 1236.1(d)(1). Dkt. 1 at 5.
By contrast, 8 U.S.C. § 1231 governs the Executive's authority to detain a non-citizen after he receives a final order of removal from the United States. The Supreme Court has held that § 1231 authorizes "an alien's post-removal-period detention" only during "a period reasonably necessary to bring about that alien's removal from the United States." Accordingly, the statute "does not permit indefinite detention." Zadvydas v. Davis , 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Supreme Court has recognized a presumptively reasonable detention period under § 1231 of six months. Id. at 701, 121 S.Ct. 2491.
Mr. Khan first sought bond on February 7, 2019, but his bond motion was denied by an Immigration Judge at a bond hearing that day. The Immigration Judge found that Mr. Khan failed to demonstrate that he was not a danger to the community based on his conviction of misdemeanor assault. Dkt. 1 at 7.
Mr. Khan appeared at another hearing on March 5, 2019. After admitting that he did not comply with the terms of his nonimmigrant student visa, Mr. Khan was found removable as charged. Dkt. 15 at 7. On May 2, 2019, Mr. Khan sought affirmative relief from removal, electing to file an 1-589 application for asylum, withholding of removal, and protection under regulations implementing the Convention Against Torture. Id.
One June 24, 2019, the Immigration Court in Arlington, Virginia held a mental competency hearing and, in an oral ruling, found Mr. Khan to be mentally incompetent. Subsequently, Mr. Khan was evaluated and diagnosed with "Chronic Post-Traumatic Stress Disorder, Unspecified Schizophrenia Spectrum, and other Psychotic Disorder." Dkt. 1 at 7. Mr. Khan sought relief based on his fear of returning to his native country on account of his mental health issues, his religion, and his political viewpoints. On January 17, 2020, Mr. Khan's application for "Asylum and Withholding of Removal and Protection under the Convention Against Torture" was denied by the Arlington Immigration Court, and Mr. Khan was ordered removed. Id.
Mr. Khan promptly filed his notice of appeal with the Board of Immigration Appeals, and timely filed his appeal brief on or about June 3, 2020. The removal order against Mr. Khan became administratively final on July 2, 2021, when the BIA dismissed his appeal. See Dkt. 15-2; Dkt. 17 at 6.
On July 27, 2021, Petitioner filed an appeal with the Fourth Circuit, which agreed to review the removal order. The Fourth Circuit then granted Mr. Khan's motion for stay of removal on August 11, 2021. See Dkt. 8-5; Dkt. 17 at 6.
***
Mr. Khan is now 36-years old. ICE detained Mr. Khan on October 23, 2018 and has incarcerated him since then at the Farmville Detention Facility in Farmville, Virginia. Dkt. 1 at 3. All told, as of the time of this Court's order, Mr. Khan has been detained for more than three years. His incarceration for civil purposes has been overwhelmingly longer than the 90-day suspended sentence he received for his criminal conviction. Dkt. 1 at 8-9.
In his Petition for a Writ of Habeas Corpus, Mr. Khan asks the Court to order that he be provided with a de novo bond hearing with adequate procedural safeguards within 15 days, at which the government must bear the burden of justifying continued detention by clear and convincing evidence, and at which the prolonged nature of his detention is given due consideration and weighed as a relevant factor on bond. Dkt. 1 at 14. Mr. Khan further argues that the government should bear the burden of justifying continued detention. Dkt. 1 at 12.
Defendants counter in their Motion for Summary Judgment, Dkt. 14, that Mr. Khan's arguments fail because: (1) Mr. Khan has been subject to an administratively final removal order since July 2021, and therefore 8 U.S.C. § 1231, rather than 8 U.S.C. § 1226(a) governs his detention. Therefore, Petitioner's detention pursuant to § 1231 is presumptively reasonable for a total of six months – or until January 2022. Moreover, Defendants assert, (2) even if § 1226(a) governs Mr. Khan's detention, the applicable procedural due process framework set out in Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) establishes that he has already received procedural due process in the form of multiple hearings on his requests for bonds. Dkt. 23 at 3.
II. LEGAL STANDARD
Summary judgment will be granted where, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact. Fed. R. Civ. P. 56(c) ; Marlow v. Chesterfield Cty. Sch. Bd. , 749 F. Supp. 2d 417, 426 (E.D. Va. 2010). A party opposing a motion for summary judgment must respond with specific facts, supported by proper documentary evidence, showing that a genuine dispute of material fact exists and that summary judgment should not be granted in favor of the moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As the Supreme Court has held, "the 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." Bouchat v. Baltimore Ravens Football Club, Inc. , 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 ).
III. DISCUSSION
There are two legal questions at issue here. First, does 8 U.S.C. § 1226(a) or 8 U.S.C. § 1231 apply to Mr. Khan's detention? Second, if § 1226(a) applies, have the procedural due process requirements under the Fifth Amendment to the United States Constitution, and as set forth in Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) been met? Each of these legal questions is addressed in turn. In addressing each of these issues, the Court is guided by its recent decision in Cardona Tejada v. Crawford , Civ. No. 1:21-cv-314, 2021 WL 2909587 (E.D. Va., May 19, 2021). The facts of Cardona Tejada are similar to those of the present case, and its reasoning applies here.
A. Mr. Khan is detained under 8 U.S.C. § 1226(a)
Mr. Khan argues that he is subject to detention under 8 U.S.C. § 1226(a). Under that provision, the United States "may" detain a non-citizen "pending a decision on whether [he] is to be removed from the United States." 8 U.S.C. § 1226(a)(1). This provision is discretionary. Mr. Khan asserts "The Fourth Circuit ... granted Petitioner's motion for stay of removal on August 11, 2021. Under the plain text of the statute, therefore, the ‘removal period’ has not commenced in Petitioner's case because the Fourth Circuit is judicially reviewing his case, a stay of removal has been ordered, and the date of the Fourth Circuit's final order is the latter of the dates at issue. Petitioner is thus currently detained under § 1226." Dkt. 17 at 6; see also Dkt. 8-5.
By contrast, Defendants argue that Mr. Khan is subject to detention under 8 U.S.C. § 1231, which governs the Executive's authority to detain a non-citizen after he receives a final order of removal from the United States. Specifically, Defendants assert that "Petitioner's removal order is administratively final because the BIA has dismissed his appeal from the [Immigration Judge]'s order denying relief from removal" on July 2, 2021. Dkt. 15 at 12. Moreover, Defendants assert that ICE's reasonable interpretation that § 1231 governs custody after a final removal order, regardless of whether a Court of Appeals has stayed removal, is entitled to Chevron deference. See Chevron U.S.A., Inc. v. NRDC, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; Dkt. 15 at 12.
The Court finds that Mr. Khan is subject to detention under 8 U.S.C. § 1226(a). "A careful review of the applicable INA statutory language makes clear that where, as here, a court stays an administratively final removal order pending judicial review, it is § 1226, not § 1231, that is applicable." Bah v. Barr , 409 F. Supp. 3d. 464, 467 (E.D. Va. 2019). Mr. Khan's motion for a stay of removal was granted by the Fourth Circuit on August 11, 2021. Therefore, "there is no final decision on petitioner's removal and there will be none unless and until the Fourth Circuit completes its review and issues its decision." Id. at 468. Section 1231 does not apply "unless and until the Fourth Circuit lifts the stay and issues its final order." Id. Therefore, Mr. Khan's detention under § 1226 is discretionary.
B. Mr. Khan is Entitled to a Current Bond Hearing under the Procedural Due Process Requirements of the Fifth Amendment.
As Mr. Khan asserts, "[i]mmigration detention under § 1226(a) is a form of civil detention." See Zadvydas v. Davis , 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ; Portillo v. Hott , 322 F. Supp. 3d 698, 707 (E.D. Va. 2018). The parties agree that, so long as 8 U.S.C. § 1226(a) governs, the relevant legal framework for determining the procedural due process owed is the three-part framework set forth in Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Dkt. 1 at 10; Dkt. 15 at 17. Defendants argue that, even under § 1226(a), Mr. Khan's claim that due process requires a specialized bond hearing is meritless, as the bond hearings that Mr. Khan has already received satisfy these due process requirements. Dkt. 15 at 17.
Mathews sets forth three factors that a court must consider to determine whether due process has been afforded: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
The Court finds that all three of these factors weigh in Mr. Khan's favor, and therefore that the Fifth Amendment compels the conclusion that Mr. Khan be afforded a current bond hearing. First, "the private interest that will be affected by the official action" is Mr. Khan's liberty interest. As the Court stated in Cardona Tejada v. Crawford , "[t]he private interest affected here – Petitioner's interest in bodily liberty – is undoubtably ‘the most significant liberty interest there is.’ " Cardona Tejada v. Crawford , 2021 WL 2909587 at * 3 (E.D. Va., May 19, 2021) (internal citations omitted). "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." Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491. There is no doubt that Mr. Khan's liberty interest strongly supports his claim for a bond hearing.
The second Mathews factor, "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards," also weighs in favor of granting Mr. Khan a bond hearing. See Mathews , 424 U.S. at 335, 96 S.Ct. 893. "[A]s the period of ... confinement grows, so do the required procedural protections no matter what level of due process may have been sufficient at the moment of initial detention." Velasco Lopez v. Decker , 978 F.3d 842, 853 (2d. Cir. 2020) (citing Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491 ). Mr. Khan has been detained since October 23, 2018, Dkt. 1 at 2, more than three years. This is a period six times longer than the presumptively reasonable six-month detention period set forth in Zadvydas. As the Court stated in Cardona Tejada , given the prolonged length of this detention, "there is most certainly a heightened risk that Petitioner is being erroneously deprived of his strong interest in bodily liberty." Cardona Tejada , 2021 WL 2909587 at * 3 (E.D. Va., May 19, 2021). Moreover, subsequent bond hearings provide an important check against erroneous deprivations of liberty. "This is so because the Department of Justice has enacted 8 C.F.R. § 1003.19(e), a regulation that provides non-citizens such as Petitioner the right to seek ‘subsequent bond redetermination[s]’ before an Immigration Judge, thereby providing credence to the very position that a current bond hearing here is appropriate." Id. Therefore, Mr. Khan is entitled to another bond hearing at which time the Immigration Judge may reevaluate whether Mr. Khan's continued detention is appropriate in light of his prolonged detention and his strong interest in bodily liberty.
Finally, the third Mathews factor, the "government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail," also weighs in favor of granting Mr. Khan a bond hearing. See Mathews , 424 U.S. at 335, 96 S.Ct. 893. As the Court held in Cardona Tejada , "[a]lthough the third Mathews factor would ordinarily favor [Defendants], that cannot be the case here, as Petitioner's prolonged, indefinite, and unreasonable detention comports neither with the Fifth Amendment nor the ordinary operation of the INA." Cardona Tejada , 2021 WL 2909587, at *4. As aforementioned, Mr. Khan's three-year detention has now lasted a period that is six times longer than the presumptively reasonable detention period set forth in Zadvydas , and there is no clear end in sight to Mr. Khan's detention. Moreover, Mr. Khan's habeas petition requests not a release from detention, but merely the opportunity to present his case for release to an Immigration Judge. The administrative burden of conducting such a bond hearing is minimal.
In sum, given Mr. Khan's strong liberty interest, his prolonged detention of more than three years, and the minimal administrative burden imposed on the Defendants in granting a bond hearing, the Court holds that the Fifth Amendment compels the conclusion that Mr. Khan must be afforded a current bond hearing. See generally Bah v. Barr , 409 F. Supp. 3d. 464, 467 (E.D. Va. 2019) (Ellis, J.) (finding that Petitioner was entitled to a bond hearing); Portillo v. Hott , 322 F. Supp. 3d 698, 700 (E.D. Va. 2018) (Brinkema, J.) (same); Mauricio-Vasquez v. Crawford , No. 1:16-cv-1422, 2017 WL 1476349, at *6 (E.D. Va. Apr. 24, 2017) (Trenga, J.) (same).
IV. CONCLUSION
It is hereby ORDERED that Mr. Khan's Petition for a Writ of Habeas Corpus, Dkt. 1, is GRANTED IN PART and DENIED IN PART.
Specifically, Mr. Khan's Habeas Petition is GRANTED in so far as it is DECLARED that Petitioner's three year detention violates the Fifth Amendment's Due Process Clause; and Mr. Khan's Habeas Petition is GRANTED in so far as Defendants must schedule a bond hearing before an Immigration Judge to occur on or before January 28, 2022. At the hearing, the Immigration Judge is to determine (i) whether Mr. Khan must continue to be detained pending the outcome of Mr. Khan's removal proceedings, if necessary, or (ii) whether Mr. Khan may be released on conditions that would reasonably assure Mr. Khan's appearance at subsequent immigration proceedings and the safety of the community.
Mr. Khan's Habaes Petition is DENIED in all other respects. The Immigration Judge may apply the burdens of proof and persuasion as she or he sees fit.
Plaintiff may petition the Court for Attorneys' Fees by Separate Motion.
It is further ORDERED that Defendants' Motion for Summary Judgment, Dkt. 14, is DENIED.
It is SO ORDERED.