Summary
applying Singh burden of proof allocation to Section 1226 initial bond hearing
Summary of this case from Al-Sadeai v. U.S. Immigration & Customs Enf'tOpinion
Case No. 5:19-cv-05191-EJD
01-23-2020
Mario Alexander IXCHOP PEREZ, Petitioner, v. Kevin MCALEENAN, et al., Respondents.
Jennifer Taylor Friedman, San Francisco Public Defenders Office, San Francisco, CA, for Petitioner. Pamela T. Johann, United States Attorney's Office, San Francisco, CA, for Respondents.
Jennifer Taylor Friedman, San Francisco Public Defenders Office, San Francisco, CA, for Petitioner.
Pamela T. Johann, United States Attorney's Office, San Francisco, CA, for Respondents.
Re: Dkt. No. 1
ORDER GRANTING WRIT OF HABEAS CORPUS
EDWARD J. DAVILA, United States District Judge
Mario Alexander Ixchop Perez, a noncitizen, has been detained by the U.S. Government pursuant to 8 U.S.C. § 1226(a) since January 23, 2018. During his detention, his applications for relief from removal and his subsequent appeals have moved through the legal system. Here, he petitions the court for the writ of habeas corpus on the grounds that the Immigration Judge who denied him bond violated both section 1226(a) and Due Process. This court finds that the Immigration Judge's order was contrary to Ninth Circuit precedent. The court will issue the writ and will order the Government to provide Mr. Ixchop with another bond hearing within 21 days of the date of this order. At this hearing, the Government shall bear the burden of showing by clear and convincing evidence that Mr. Ixchop is either a flight risk or that he poses a danger to the community.
I. Background
Mr. Ixchop is a 38-year old citizen of Guatemala. Declaration of Nino Gagelonia ("Gagelonia Decl.") ¶ 4. He entered the United States without being inspected, admitted, or paroled. Id. He has primarily lived in San Francisco since 1996. See id. ; Ex. G at 6. He attended Mission High School for three years. Ex. G at 6. He married a U.S. citizen in 2014, and they have three young children who are U.S. citizens. Id.
Pincites to Exhibits G and K go to the ECF page numbers.
Mr. Ixchop has a criminal record stemming from alcohol abuse, though he represents that he is in recovery. Between 2009 and 2015, he was arrested and convicted of DUI five times. Ex. G at 7-8; Gagelonia Decl. ¶¶ 5-7, 9-10; Ex. 1 at 3-6. He served time in jail for all of the convictions. Gagelonia Decl. ¶¶ 5-7, 9-10; Ex. 1 at 3-6. His final arrest for DUI came on October 18, 2015. Ex. G at 8; Ex. 1 at 6. His first four convictions were for misdemeanors; his final was a felony conviction. Ex. g at 7-8; Ex. 1 at 3-6. He represented to the Immigration Judge at his bond hearing—and represents to this court—that he has been sober since the 2015 arrest. Ex. G at 8-11; Pet. ¶¶ 33-34. After being released from custody for the 2015 arrest, he enrolled in the Dry Zone DUI Program at the Mission Council on Alcohol Abuse. Ex. G at 51. The director of the program represented in a letter dated February 20, 2018, that his progress and prognosis were both "good," and that he had a tentative discharge date of January 23, 2019. Id. While in detention, he has graduated from Phases I and II of the Deciding, Educating, Understanding, Counseling, and Evaluation substance abuse program. Id. at 55-56. He also participated in the Men and Woman of Purpose self-help rehabilitation service. Id. at 58-59. At his bond hearing, he introduced a psychological evaluation conducted by Dr. Caroline Salvador-Moses. Id. at 2, 32-46. She concluded that he presented a "low" risk of reoffending. Id. at 42, 46. He represented to the Immigration Judge that, if released, he would enroll in an ankle bracelet alcohol monitoring program. Id. at 11, 63-72.
In April 2014, Immigrations and Customs Enforcement officers arrested Mr. Ixchop, and he was placed in removal proceedings. Gagelonia Decl. ¶ 8. He was released the same day on $1,500 bond. Id. ¶ 11. On January 23, 2018, ICE officers arrested him while he was reporting for an interview with immigration officials. Gagelonia Decl. ¶ 11. They determined that he had violated the conditions of his release on bond and that he posed a danger to the public. Id. They detained him under 8 U.S.C. section 1226(a). Id. ¶ 13. On June 29, 2018, he appeared for a bond hearing. Ex. A at 1. The Immigration Judge issued an order holding, in relevant part, that "the respondent carries the burden of demonstrating: (1) he is not a danger to the community; and (2) he is not a flight risk." Id. The Immigration Judge then found that Mr. Ixchop "currently presents a danger to the community as he presents a very clear danger to other people. Respondent has fairly recent and multiple convictions for driving under the influence of alcohol." Id. at 2. The Immigration Judge did not find him to be a flight risk. See id. The Immigration Judge ordered Mr. Ixchop to be detained without bond. Id. at 2. Mr. Ixcop appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. Ex. B.
Unless otherwise noted, all subsequent references to the U.S. code are to Title 8.
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On October 5, 2018, Mr. Ixchop appeared by video teleconference at an individual merits hearing on his applications for relief from removal. Gagelonia Decl. ¶ 18. The Immigration Judge denied his applications and ordered him removed to Guatemala. Ex. K. He appealed to the Board of Immigration Appeals ("BIA"). Ex. L. The BIA dismissed his appeal on May 6, 2019. Id. He then filed a petition for review and motion for stay of removal with the Ninth Circuit. Ex. M. Those applications remain pending. Pet. ¶ 40. On August 8, 2019, he filed a motion for a custody re-determination hearing under Casas-Castrillon v. Dep't of Homeland Sec. , 535 F.3d 942 (9th Cir. 2008), arguing that he faced prolonged detention. Ex. Q. The Immigration Judge denied the motion. Ex. R. While Mr. Ixchop was initially detained at the West Contra Costa County Jail in Richmond, California, in August 2018 the Government transferred him to Denver Contract Detention Facility in Aurora, Colorado in August 2018. Ex. E.
Mr. Ixchop remains in detention under section 1226(a). He filed this petition on August 20, 2019. The parties stipulated to a briefing schedule, the Government filed a return to the petition, and Mr. Ixchop filed a traverse. The court finds this matter suitable for resolution without oral argument.
II. Jurisdiction
Under federal statute, a district court is authorized to grant a writ of habeas corpus when petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). With respect to noncitizens though, the REAL ID Act of 2005 ("RIDA") provides that "all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226 ] shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1251(b)(9). In other words, noncitizens may not petition district courts for the writ of habeas corpus to challenge issues "arising" from their removal proceedings. Alvarez v. Sessions , 338 F. Supp. 3d 1042, 1047 (N.D. Cal. 2018) (Davila, J.). With respect to bond determinations, federal law provides that "[n]o court may set aside any action or decision by the Attorney General ... regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." 8 U.S.C. § 1226(e). RIDA though does not strip district courts of jurisdiction to hear habeas petitions concerning issues collateral or ancillary to removal proceedings. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 840-41, 200 L.Ed.2d 122 (2018) ; see also Casas-Castrillon , 535 F.3d at 946 ("Even post-RIDA, aliens may continue to bring collateral legal challenges to the Attorney General's detention authority ... through a petition for habeas corpus."). Section 1226(e) "precludes an alien from challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release. But § 1226(e) "does not preclude challenges to the statutory framework that permits the alien's detention without bail." Jennings , 138 S. Ct. at 841 (quotations, citation, and alteration omitted). Because Mr. Ixchop brings his petition to challenge the statutory and constitutional validity of his bond hearing, the court finds that it has jurisdiction to consider it.
While Mr. Ixchop is physically detained in Colorado, his proceedings continue before the Immigration Court in San Francisco, California. Ex. F. Neither party objects to this venue. The court finds that venue is appropriate in the Northern District of California.
III. Administrative Exhaustion
The government argues that if Mr. Ixchop's circumstances have changed to warrant a new bond hearing, then the court should dismiss the petition for his failure to exhaust his administrative remedies. It contends that he should have moved for a second custody redetermination hearing based on changed circumstances under 8 C.F.R. § 1003.19(e). The court disagrees because his petition is not based on a theory of changed circumstances, but rather on the theory that the Immigration Judge misapplied the burden of proof. He has already appealed the Immigration Judge's denial of bond to the BIA. Mr. Ixchop has sufficiently exhausted his administrative remedies.
IV. Discussion
Mr. Ixchop makes two arguments in support of his petition. First, he argues that his initial bond hearing violated section 1226(a) and/or the Due Process Clause of the Constitution. Second, he contends that his detention has been so prolonged that Due Process entitles him to a new bond hearing. The court finds that his bond hearing was constitutionally deficient, so the court does not address his second argument.
Although section 1226(a) does not address the allocation of the burden of proof in bond proceedings, Mr. Ixchop contends that the statutory context and legislative intent demonstrate that the Government, not the noncitizen, should bear the burden of showing that the noncitizen is either a flight risk or a danger to the community. Section 1226(a) provides in full:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; and
(2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
Mr. Ixchop advances this argument with two theories. First, he argues that in 1996 when Congress enacted section 1226(a), it would have understood that the BIA then applied a presumption against detention. Pet. ¶ 60. He cites the 1976 BIA decision Matter of Patel , where the BIA stated, "An alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security or that he is a poor bail risk." 15 I. & N. Dec. 666 (BIA 1976) (citation omitted). This argument must fail though because the Supreme Court held, after the Patel decision but before the enactment of section 1226(a), that "any presumption of release pending deportation" had been "eliminated." Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Thus, this court cannot accept that in enacting section 1226(a) Congress intended to incorporate a presumption against detention that would place the burden of proof on the Government.
Next, Mr. Ixchop compares section 1226(a) to section 1226(c). Section 1226(c)(2) provides certain criminal noncitizens may be released, if among other requirements "the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." He argues that the court should infer that Congress did not intend for noncitizens detained under section 1226(a) to carry the burden of proof because section 1226(a) does not assign the burden of proof to a either party, while section 1226(c) assigns the burden of proof to the detained noncitizen. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Nken v. Holder , 556 U.S. 418, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). The court disagrees with Mr. Ixchop's conclusion though. The court will not read Congressional intent to invert where the burden lays under section 1226(c) for section 1226(a). A better reading of the statute is that Congress's silence in section 1226(a) indicates that Congress's intent was to leave the question to the Attorney General. Cf. Reno , 507 U.S. at 294-95, 113 S.Ct. 1439.
b. Due Process
However, that authority delegated to the Attorney General is still subject to the requirements of Due Process. And, under Ninth Circuit precedent, Due Process requires that the government, not the noncitizen, bear the burden at an immigration bond hearing. The Due Process Clause of the Fifth Amendment provides that "[n]o person shall ... be deprived of ... liberty ... without due process of law." U.S. Const. amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Supreme Court "repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas , 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (string citation omitted). In Singh v. Holder , the Ninth Circuit considered which party should bear the burden of proof at an immigration bond hearing where the noncitizen has been subjected to prolonged detention (a " Casas hearing") and what standard of proof should apply there. 638 F.3d 1196 (9th Cir. 2011) (" Singh "). The Ninth Circuit held that "[g]iven the substantial liberty interest at stake," the Government, not the noncitizen, "must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond at a Casas hearing." Id. at 1203.
The reasoning of Singh applies equally here. The noncitizen in Singh had been subjected to prolonged detention pending his removal proceedings. He was taken into custody without a bond hearing in April 2007. Id. at 1201. He received a Casas hearing challenging his prolonged detention in September 2008. Id. That Immigration Judge found that he posed a danger to the community and denied bond. Id. He petitioned a district court for the writ of habeas corpus, the District Court denied the petition, and he appealed. Id. at 1201-02. The Ninth Circuit reasoned that "due process requires ‘adequate procedural protections’ to ensure that the government's asserted justification for physical confinement ‘outweighs the individual's constitutionally protected interest in avoiding physical restraint.’ " Id. at 1203 (quoting Casas-Castrillon , 535 F.3d at 950 (quoting Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 )). The potential injury of depriving an individual of their liberty "is so significant [that] a clear and convincing evidence standard of proof provides the appropriate level of procedural protection." Id. at 1203-04 (citing Addington , 441 U.S. at 427, 99 S.Ct. 1804 ). Mr. Ixchop was detained for over five months before he had his first bond hearing. He did not have a merits hearing until over eight months after his arrest. He had been detained for over a year-and-a-half before he filed this petition. While Singh considered the burden at a Casas hearing, the court finds that its reasoning applies equally to initial bond hearings under section 1226(a), given the "risk of error" concerning the "deprivation of liberty." Id. The Government's attempt to cabin Singh to only apply to Casas hearings is not availing. The Government's application of Singh would create a system in which a detained noncitizen bears the burden at their initial bond hearing, but the burden then shifts at a Casas hearing. Such a system would be illogical.
The Government argues that the Supreme Court's recent decision in Jennings "casts doubt on the continued viability of" Singh. Return at 9. This court disagrees. The Jennings decision is based on the statutory interpretation of section 1226. The Supreme Court expressly did not address Constitutional questions. 138 S. Ct. at 851. Singh , in contrast, was decided on Due Process grounds. 638 F.3d at 1203-04. The two cases addressed different legal questions. This court will follow the numerous Courts in this District that have found that Jennings did not overrule Singh . See, e.g. , Marroquin Ambriz v. Barr , 2019 WL 5550049, at *8 (N.D. Cal. Oct. 28, 2019) ("[T]he Court therefore adds its voice to the chorus of decisions holding that Jennings did not overrule Singh 's conclusions regarding the required burden of proof."); Gonzalez v. Bonnar , 2019 WL 330906, at *6 (N.D. Cal. Jan. 25, 2019) ("[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."); Cortez v. Sessions , 318 F. Supp. 3d 1134, 1147 (N.D. Cal. 2018) ("[T]he court declines to find that Jennings reversed the clear and convincing evidence standard announced in Singh or later Ninth Circuit cases relying on Singh 's reasoning."). The Government cites no authority holding that Singh is no longer good law.
Nor is the court persuaded by the Government's citations to pre- Singh cases that do not address the question before this court. In Demore v. Kim , the Supreme Court upheld the constitutionality of the detention of criminal noncitizens under section 1226(c) ; it did not address the burden and standard of proof at bond determinations under section 1226(a). 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Ninth Circuit has characterized Demore 's holding as "limited." Casas-Castrillon , 535 F.3d at 950. And in Carlson v. Landon , the Supreme Court considered the "narrow question" of whether the Attorney General could detain "active alien communists on warrants" without bail pending determination of their removability. 342 U.S. 524, 526, 72 S.Ct. 525, 96 L.Ed. 547 (1952). The court finds that these cases are off-point and do not disrupt the court's application of Singh to the present facts.
Accordingly, this court will join the "consensus view" among District Courts concluding that after Jennings "where ... the government seeks to detain an alien pending removal proceedings, it bears the burden of proving that such detention is justified." Darko v. Sessions , 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) ; see also, e.g. , Brito v. Barr , 415 F.Supp.3d 258, 266 (D. Mass. 2019) ("[T]he Court holds that the Due Process Clause requires the Government bear the burden of proof in § 1226(a) bond hearings."); Rajesh v. Barr , 2019 WL 5566236, at *6 (W.D.N.Y. Oct. 29, 2019) ("The Court joins with these courts and concludes that the Fifth Amendment's Due Process Clause requires the Government to bear the burden of proving, by clear and convincing evidence, that detention is justified at a bond hearing under § 1226(a)."); Singh v. Barr , 400 F. Supp. 3d 1005, 1018 (S.D. Cal. 2019) (" Singh v. Barr ") ("The Court agrees with the reasoning of its sister courts and concludes that the Fifth Amendment's Due Process Clause requires the Government to bear the burden of proving, by clear and convincing evidence, that continued detention is justified at a § 1226(a) bond redetermination hearing."); Hernandez-Lara v. Immigration & Customs Enf't. , 2019 WL 3340697, at *4 (D.N.H. July 25, 2019) ("This court finds persuasive those opinions that have held that, in § 1226(a) cases, due process requires the burden be placed on the government."); Diaz-Ceja v. McAleenan , 2019 WL 2774211, at *10 (D. Colo. July 2, 2019) ("The court finds that allocating the burden to a noncitizen to prove that he should be released on bond under § 1226(a) violates due process"). This court will also join other District Courts to hold that due process requires the Government to carry its burden by clear and convincing evidence. See, e.g. , Rajesh , 2019 WL 5566236, at *6 ; Singh v. Barr , 400 F. Supp. 3d at 1018 ; Marroquin Ambriz , 2019 WL 5550049, at *8 (N.D. Cal. Oct. 28, 2019) ("Marroquin Ambriz is entitled to a hearing at which the government bears the burden of proof, by clear and convincing evidence, that he is dangerous or a flight risk.").
Finally, the Government's argument the BIA's interpretation of section 1226 as requiring the detained noncitizen to bear the burden at their bond hearing is a reasonable interpretation of the statute and is entitled to deference under Chevron, USA, Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). This argument is not persuasive. "Regardless of whether ... Chevron deference applies to the BIA's interpretation of the statute, the issue before the Court is whether the Constitution requires the government to bear the burden of proof in § 1226(a) bond hearings. A Chevron argument about statutory interpretation does not change the constitutional analysis." Pensamiento v. McDonald , 315 F. Supp. 3d 684, 693 (D. Mass. 2018).
c. Prejudice
The court now turns to whether the Immigration Judge's constitutional error prejudiced Mr. Ixchop. See Singh v. Barr , 400 F. Supp. 3d at 1019. The Immigration Judge's denial of bond was based solely on Mr. Ixchop's five DUIs. Ex. A at 2. "[C]ourts must consider the remoteness of the DUI and intervening events that might undermine a finding of dangerousness." Obregon v. Sessions , 2017 WL 1407889, at *7 (N.D. Cal. Apr. 20, 2017) ; see also Singh v. Barr , 400 F. Supp. 3d at 1019 ("the recency ... of the offenses" is relevant to a determination of dangerousness or flight risk). "[W]hen it comes to non-violent crimes, especially those caused by addiction, the passage of time does make a difference, as does the availability of treatment options." Obregon , 2017 WL 1407889, at *8 ; see also Ramos v. Sessions , 2018 WL 905922, at *5 (N.D. Cal. Feb. 15, 2018). Mr. Ixchop has produced evidence that may well indicate that he is not a danger to the community on account of his past alcohol abuse. He has been sober since his last DUI in October 2015. He has been in treatment for substance abuse, both before and during his detention. The director of one of his treatment programs represented that his progress had been "good." An expert disclosed a psychological evaluation concluding that he presented a "low" risk of reoffending. He expressed a willingness to enroll in an ankle-monitor treatment program, should he be released from detention. Given this evidence, "[i]t is not unreasonable to think a different determination might have obtained if the government was forced to bear the burden of proof by a clear and convincing standard." Singh v. Barr , 400 F. Supp. 3d at 1020.
V. Conclusion and Order
For the reasons discussed above, the court grants Mr. Ixchop's petition for the writ of habeas corpus. The court orders the Government to present Mr. Ixchop for an individual bond hearing within 21 days of the date of this order. At this hearing, the Government shall bear the burden of proving by clear and convincing evidence that his continued detention is justified.