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No. CV-17-4791-JAT (DMF) (D. Ariz. Jul. 20, 2018)

No. CV-17-4791-JAT (DMF)


Jose Alberto Espindola Arizmendi, Petitioner, v. John F. Kelly, et al., Respondents.



Petitioner Jose Alberto Espindola Arizmendi ("Petitioner") has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1) Petitioner contends his continued detention violates his substantive and procedural due process rights under the Fifth Amendment. (Id. at 9-10) Respondents filed a response. (Doc. 8) The undersigned ordered the parties to submit two rounds of supplemental briefing subsequent to the U.S. Supreme Court's decision and opinion in Jennings v. Rodriguez, ___U.S.___, 138 S. Ct. 830 (2018), which now have been filed. (Docs. 10-11, 13-14) For the reasons set forth below, the undersigned recommends the Petition be denied and dismissed with prejudice.


Petitioner is a native and citizen of Mexico. (Doc. 8-1 at 3) In December 2012, Petitioner was approved for the Deferred Action for Childhood Arrivals ("DACA") program. (Id. at 7) His renewal application for DACA status was approved in October 2014, which was valid until October 24, 2016. (Id. at 12) On October 10, 2016, U.S. Immigration and Customs Enforcement ("ICE") agents interviewed Petitioner at the Maricopa County Sheriff's Office jail after he was arrested by the Mesa Police Department on drug charges. (Id. at 15-18) ICE agents took Petitioner into custody on October 11, 2016, and detained him at the Eloy Detention Center. (Doc. 8 at 2) ICE issued a Notice to Appear, charging Petitioner as subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as "an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." (Doc. 8-1 at 20)

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act.

On November 8, 2016, an Immigration Judge conducted a change in custody/bond hearing, and denied bond, finding that Petitioner "is a danger." (Id. at 22) Petitioner reserved appeal. (Id.) ICE transferred custody of Petitioner to the Maricopa County Sheriff's Office on February 1, 2017, pursuant to his pending drug charges. (Id. at 24) On May 19, 2017, ICE again took custody of Petitioner when he was "booked out" of the Maricopa County Jail, and returned him to the Eloy Detention Center. (Id. at 29) Petitioner was provided a change in custody/bond hearing at which the Immigration Judge took "no action." (Id. at 34) Respondents say this hearing occurred on May 23, 2017. (Doc. 8 at 3) On June 5, 2017, Petitioner was afforded another change in custody/bond hearing at which the Immigration Judge indicated that the Department of Homeland Security ("DHS") had "shown that Respondent remains a danger." (Doc. 8-1 at 36) Petitioner appealed, and the Board of Immigration Appeals dismissed his appeal in an order dated January 19, 2018. (Id. at 50-52)

Respondents aver that Petitioner was again turned over to the Maricopa County Sheriff's office in July 2017, on his drug related charges. (Doc. 8 at 3) Petitioner entered a plea agreement and pleaded to a count of solicitation of possession of marijuana for sale, a Class 6 undesignated felony. (Doc. 8-1 at 55) ICE retook custody of Petitioner from the county sheriff on November 1, 2017. (Id. at 39) On January 25, 2018, an IJ conducted a change in custody/bond hearing. (Id. at 59) The Immigration Judge denied Petitioner's request for change in custody status, finding that Petitioner had not been "in DHS custody for 180 days." (Id.)

In their supplemental briefing, Respondents explain that Petitioner's change in custody/bond hearing held on January 25, 2018 was a "Joseph hearing." (Doc. 14 at 4) "A 'Joseph hearing' is immediately provided to a detainee who claims that he is not covered by § 1226(c). ... At the hearing, the detainee may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 I. & N. Dec. 799, 1999 WL 339053 (BIA 1999)." Demore, 538 U.S. at 514 n.3.

The parties appear to agree that Petitioner has been detained in DHS custody since November 1, 2017. (Doc. 8 at 1, Doc. 10 at 2) They also appear to agree that Petitioner has been detained since November 1, 2017 pursuant to 8 U.S.C. § 1226(c). (Doc. 11 at 2, Doc. 13 at 8) Respondents indicate that Petitioner is scheduled for a master calendar hearing on July 31, 2018. (Doc. 14 at 5)

Respondents explain that "[w]hen Petitioner was first taken into custody by ICE, he was detained pursuant to 8 U.S.C. § 1226(a) because he had not yet been convicted of the crimes for which he had been arrested. Petitioner subsequently pled guilty to and was convicted for solicitation of possession of marijuana for sale. When Petitioner was re-detained following his conviction, his detention was mandatory under 8 U.S.C. § 1226(c)." (Doc. 14 at 4 n.4) --------


A. 8 U.S.C. § 1226(c)

Title 8 U.S.C. section 1226 governs the apprehension and detention of aliens. 8 U.S.C. § 1226. Subsection (c) addresses the detention of criminal aliens. Petitioner's detention is authorized under section 1226(c)(B), which provides that the:

Attorney General shall take into custody any alien who ... is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title ... when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(B). Significantly, § 1226(c)(2) requires that "the Attorney General 'may release' one of those aliens 'only if the Attorney General decides' both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. § 1226(c)(2) (emphasis added)." Jennings, 138 S. Ct. at 846.

The offense Petitioner pleaded to, solicitation of possession of marijuana for sale, falls within the ambit of 8 U.S.C. § 1227(a)(2)(B)(i), which provides that "any alien who at any time after admission has been convicted of a violation of (or conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) ... is deportable." 8 U.S.C. § 1227(a)(2)(B)(i). Title 21 U.S.C. § 802 defines terms for the purposes of drug abuse prevention and control. Section 802(6) defines the term "controlled substance" as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter ... ." 21 U.S.C. § 802(6). Title 21 U.S.C. § 812(c) lists marijuana as a Schedule I drug. 21 U.S.C. § 812(c), Schedule I (c)(10).

B. Jennings v. Rodriguez , 138 S. Ct. 830 (2018)

In Jennings v. Rodriguez, the United States Supreme Court issued an opinion that governs the question presented in this Petition. 138 S. Ct. 830. In so doing, the Court reversed the Ninth Circuit holding that non-citizens detained under 8 U.S.C. §§ 1225(b)(1), (b)(2), and 1226(c) were entitled to bond hearings every six months. Id. at 839, 852. The Ninth Circuit had reasoned that in order to avoid "constitutional concerns, § 1226(c)'s mandatory [detention] language must be construed to contain an implicit reasonable time limitation." Rodriguez v. Robbins, 804 F.3d 1060, 1079 (9th Cir. 2015) (internal quotations omitted). The Supreme Court disagreed, and explained that to apply the canon of constitutional avoidance, the statute at issue must be susceptible of more than one construction and the proposed reading of that statute must be plausible. Jennings, 138 S. Ct. at 842. The Court concluded that the language of § 1226(c) is unambiguous and could not plausibly be construed to contain an unstated temporal limitation on detention. The Court instructed that:

[Section] 1226 applies to aliens already present in the United States. ... Section 1226(c) in turn states that the Attorney General "shall take into custody any alien" who falls into one of the enumerated categories involving criminal offenses and terrorist activities. 8 U.S.C. § 1226(c)(1).

Section 1226(c) then goes on to specify that the Attorney General "may release" one of those aliens "only if the Attorney General decides" both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. § 1226(c)(2) (emphasis added).
Like § 1225(b), § 1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released "only if" the Attorney General decides that certain conditions are met, § 1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with § 1226(a), § 1226(c) makes clear that detention of aliens within its scope must continue "pending a decision on whether the alien is to be removed from the United States." § 1226(a).
[Section] 1226(c) is not "silent" as to the length of detention. It mandates detention "pending a decision on whether the alien is to be removed from the United States," ... and it expressly prohibits release from that detention except for narrow, witness-protection purposes. ... Indeed, we have held as much in connection with § 1226(c) itself. In Demore v. Kim, 538 U.S., at 529, 123 S. Ct. 1708 we distinguished § 1226(c) from the statutory provision in Zadvydas by pointing out that detention under § 1226(c) has "a definite termination point": the conclusion of removal proceedings. As we made clear there, that "definite termination point"—and not some arbitrary time limit devised by courts—marks the end of the Government's detention authority under § 1226(c).
Respondents next contend that § 1226(c)'s limited authorization for release for witness-protection purposes does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released "only if" certain conditions are met, 8 U.S.C. § 1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.
We hold that § 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings "only if" the alien is released for witness-protection purposes.

Jennings v
. Rodriguez, ___U.S. ___, 138 S. Ct. 830, 846-47 (2018) (emphasis in original).

To the extent Petitioner contends that § 1226(c) is unconstitutional as applied to him, his claim fails. In Demore, the Supreme Court recognized that "detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process." Demore, 538 U.S. at 523. Prior to Demore, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that the post-removal-period detention statute, read in light of Constitutional protections, implicitly limited an alien's detention to a period reasonably necessary to bring about that alien's removal. 533 U.S. at 699. The Zadvydas Court emphasized the fact that "post-removal detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point." Id. at 697. As the Jennings Court noted in the above excerpt, in Demore, it distinguished § 1226(c) from the statute at issue in Zadvydas, finding that the aliens challenging their detention after final orders of deportation in Zadvydas were detainees "for whom removal was 'no longer practicably attainable.'" 538 U.S. at 527. The Court concluded that § 1226(c) is facially constitutional because, unlike post-removal-period detention, it does not allow for indefinite detention, and the detentions it requires are generally short in duration. 538 U.S. at 531.

The Jennings Court, however, explicitly declined to reach the merits of the petitioners' constitutional arguments. 138 S. Ct. 851. Consequently, it is unclear under current Supreme Court precedent at what point a detention pursuant to § 1226(c) will become unreasonable without a hearing, making continued detention unconstitutional in a particular case. The Supreme Court remanded the case to the Ninth Circuit to consider "the respondents' constitutional arguments on their merits." Id. On remand, the Ninth Circuit has ordered the parties to file supplemental briefs on "whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under U.S.C. § 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts more than six months[,]" among other issues. Rodriguez v. Jennings, 887 F.3d 954, 955 (9th Cir. 2018). / / / / / /

C. Whether Petitioner's detention is unconstitutional

Petitioner argues that Ninth Circuit opinions have consistently found that prolonged mandatory detention presents serious due process concerns, and that Demore's decision upholding mandatory detention without a bond hearing was based on its understanding that such detentions are generally of brief duration. (Doc. 13 at 8) He contends that his detention is unconstitutional because it has exceeded six months. (Doc. 10 at 5) Petitioner's arguments do not square with the Supreme Court's opinion in Jennings v. Rodriguez. The Court made plain that § 1226(c) means what it says in that "aliens detained under [§ 1226(c)] are not entitled to be released under any circumstances other than those expressly recognized by the statute[,]" that is, where the Attorney General decides that release "is necessary for witness protection purposes and that the alien will not pose a danger or flight risk." 138 S. Ct. at 846. The Jennings Court further emphasized that aliens subject to mandatory detention under § 1226 have a clear "termination point" in sight: "the conclusion of removal proceedings" marking "the end of the Government's detention authority under § 1226(c)." Id. The Court characterized the lower court's six-month time limit as having been fashioned "out of statutory silence" and as an "arbitrary time limit devised by courts." Id. Moreover, as is noted above, the Court took great pains to distinguish its holding in Zadvydas and the statute at issue there from its holding in Demore, addressing § 1226(c).

In Demore, the petitioner, a lawful permanent resident, had already been detained for six months prior to the District Court's order granting habeas relief. 538 U.S. at 530-31. In his concurring opinion, Justice Kennedy discussed circumstances under which due process may require a bond hearing for an alien subject to mandatory detention pursuant to § 1226(c):

since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified. Zadvydas, 533 U.S., at 684-686, 121 S. Ct. 2491; id., at 721, 121 S. Ct. 2491 (KENNEDY, J., dissenting) ("[A]liens are entitled to be free from detention that is arbitrary or capricious"). Were there to be an unreasonable delay by the

INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons. That is not a proper inference, however, either from the statutory scheme itself or from the circumstances of this case.

, 538 U.S. at 532-33 (KENNEDY, J., concurring).

Here, Petitioner's detention period has exceeded that of the petitioner in Demore by approximately two-and-a-half months. Petitioner has submitted no evidence that the government has improperly or unreasonably delayed the regular course of proceedings, or that the government has detained him for any purpose other than the resolution of his removal proceedings. Moreover, as noted, in January 2018, Petitioner received a Joseph hearing, and Respondents advise the Court that he is scheduled for a master calendar hearing on July 31, 2018 (Doc. 14 at 8). The undersigned is unable to conclude that, under this set of circumstances and the current state of applicable federal statutes and U.S. Supreme Court caselaw, Petitioner's detention at this point violates his due process rights.


Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." However, such certificates are only required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). This case arises under 28 U.S.C. § 2241, and does not attack a State court detention. Accordingly, no ruling on a certificate of appealability is required, and no recommendation thereon will be offered.


For the reasons stated above, the undersigned recommends that the Court deny Jose Alberto Espindola Arizmendi's habeas petition, and dismiss it with prejudice. / / / / / /


IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be denied and dismissed with prejudice.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1), should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6 and 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.

Dated this 20th day of July, 2018.


Honorable Deborah M. Fine

United States Magistrate Judge

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