United States District Court, D. Colorado
For Guadalupe Sanchez-Penunuri, Petitioner: Matthew William Buck, Buck Law LLC, Denver, CO.
For John P. Longshore, Field Office Director, U.S. Immigration and Customs Enforcement, Janet Napolitano, Secretary, U.S. Department of Homeland Security, John Morton, Director, U.S. Immigration and Customs Enforcement, Eric Holder, Jr., Attorney General, United States of America, Respondents: Amanda Adams Rocque, U.S. Attorney's Office-Denver, Denver, CO; Sarah B. Fabian, U.S. Department of Justice-DC-#868, Washington, DC.
CHRISTINE M. ARGUELLO, United States District Judge.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on Petitioner Guadalupe Sanchez-Penunuri's petition for a writ of habeas corpus. (Doc. # 1.) For the reasons stated below, the Court grants Mr. Sanchez-Penunuri's petition.
Mr. Sanchez-Penunuri is a native and citizen of Mexico who first entered the United States in 1985 and obtained legal permanent residency in 1990. In 2003, Mr. Sanchez-Penunuri pleaded guilty to two felony violations of Colorado laws banning the possession and distribution of controlled substances. He was sentenced to a three-year term of probation, a fine, and community service, all of which he completed by 2007. On August 27, 2013, Mr. Sanchez-Penunuri was arrested by Immigration and Customs Enforcement and has been detained at the GEO Detention Facility in Aurora, Colorado, since that date. (Doc #1 at 5-6.)
This case concerns Mr. Sanchez-Penunuri's access to a bond hearing, which in the immigration context is governed by 8 U.S.C. § 1226(a). Certain classes of immigrants are not entitled to a § 1226(a) bond hearing because they are subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). Mr. Sanchez-Penunuri asked an Immigration Judge (IJ) to conduct a bond hearing in accord with § 1226(a). The IJ, however, rejected this request, reasoning that Mr. Sanchez-Penunuri was subject to mandatory detention under § 1226(c). (Doc. # 1-1.) The IJ was required to deny Mr. Sanchez-Penunuri's bond hearing request because he was bound by Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), a precedential decision from the Board of Immigration Appeals (BIA), which broadly interprets § 1226(c) to include noncitizens such as Mr. Sanchez-Penunuri.
Mr. Sanchez-Penunuri argues he is entitled to a bond hearing because the BIA's interpretation of § 1226(c) is erroneous and the conditions dictating mandatory detention in § 1226(c) do not apply to him. In the alternative, he argues that the statute as applied violates his constitutional rights. The government disagrees, arguing that § 1226(c) requires mandatory detention for Mr. Sanchez-Penunuri and that no constitutional violation arises from his detention.
II. LAW AND ANALYSIS
This Court must resolve several issues in the present case. First, in light of an argument raised by the government in its response to Mr. Sanchez-Penunuri's habeas petition, this Court must determine if Mr. Sanchez-Penunuri has named a proper respondent for the petition, such that this Court can reach the merits of his claims. Second, this Court must consider the parties' competing interpretations of § 1226(c) and determine whether the statute applies to Mr. Sanchez-Penunuri. Third, if the statute does apply to Mr. Sanchez-Penunuri, this Court must reach Mr. Sanchez-Penunuri's alternative argument that the statute as applied violates his constitutional rights.
This Court concludes that Mr. Sanchez-Penunuri has named a proper respondent and that it can therefore consider the merits of Mr. Sanchez-Penunuri's claims. Further, on the merits, this Court substantially agrees with Mr. Sanchez-Penunuri's interpretation of § 1226(c) and, in line with the majority of federal courts to have addressed this issue, concludes that § 1226(c) does not apply to Mr. Sanchez-Penunuri. Thus, this Court concludes that Mr. Sanchez-Penunuri is entitled to a bond hearing under § 1226(a). Because the language of the statute dictates this result, this Court declines to reach Mr. Sanchez-Penunuri's constitutional challenge.
A. IMMEDIATE CUSTODIAN RULE
Before reaching the merits, this Court must address the threshold question of whether Mr. Sanchez-Penunuri has named a proper respondent in his habeas petition. Mr. Sanchez-Penunuri brought his petition under 28 U.S.C. § 2241(c)(3), which extends habeas relief to persons " in custody under or by color of the authority of the United States," 28 U.S.C. § 2241(c)(1), and to those " in custody in violation of the Constitution or laws or treaties of the United States," id. § 2241(c)(3). (Doc. # 1, at 3.) There is no dispute that Mr. Sanchez-Penunuri's petition satisfies the " in custody" requirements of § 2241 or that this Court has subject matter jurisdiction pursuant to this statute.
Rather, the dispute arises over who can grant Mr. Sanchez-Penunuri the relief he requests. Mr. Sanchez-Penunuri originally named four respondents in his petition: the Attorney General, the Secretary of the Department of Homeland Security, the Director of ICE, and the Field Director of Denver's ICE Office. He alleges these respondents can provide the type of relief he requests: " an individualized bond hearing before an Immigration Judge." (Doc. # 1, at 22.)
The government disagrees. Citing Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004), the government argues that none of these individuals are proper respondents for a habeas petition based on a challenge to immigration detention.
Similar to this case, Padilla concerned a habeas petition filed under 28 U.S.C. § 2241 by Jose Padilla, a United States citizen detained as an " enemy combatant" and suspected member of Al Qaeda, pursuant to the Authorization for Use of Military Force Joint Resolution, Pub. L. 107-40, 115 Stat. 224. At the time he filed his habeas petition, Mr. Padilla--who was then detained in the Consolidated Naval Brig in Charleston, South Carolina--named the Secretary of Defense as the respondent to his petition. The lower courts agreed that naming the Secretary
was proper, rationalizing that although the warden of the naval brig exercised control over Mr. Padilla's day-to-day activities, the Secretary maintained the legal reality of control. Padilla, 542 U.S. at 433.
The Supreme Court disagreed, concluding that the " immediate custodian rule" applied to Mr. Padilla's petition. The Court traced the origin of this rule to Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), which held that the habeas statute " contemplate[s] a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Padilla, 542 U.S. at 435 (quoting Wales, 114 U.S. at 574 (emphasis supplied by the Padilla Court)).
Further, the Padilla Court continued, " in accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement-'core challenges'-the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Padilla, 542 U.S. at 435. Rather than the Secretary of Defense, the Court concluded that the commander of the brig in South Carolina--Mr. Padilla's immediate custodian--was the only proper respondent. Id. at 436.
The government invokes this " core challenge" language from Padilla and argues the immediate custodian rule applies here. Thus, the government concludes that " [a]ll of the named individuals are remote supervisory officials, and all are therefore improperly named and should be dismissed from this Petition." (Doc. # 11, at 1 n.1.) At the same time, the government alleges that Mr. Sanchez-Penunuri is " detained at the Denver Contract Detention Facility, and the warden of that facility is Johnny Choate, who is therefore the proper respondent to this Petition." ( Id.) Mr. Sanchez-Penunuri disputes that Mr. Choate is the proper respondent and maintains that the local Field Office Director for Immigration and Customs Enforcement is the only proper respondent. (Doc. # 12, at 1 n.1.)
Resolving this dispute between the parties actually involves answering two separate questions. First, the Court must determine if the immediate custodian rule applies to Mr. Sanchez-Penunuri's petition. Second, if the rule does not apply, this Court must determine who is a proper respondent.
This Court concludes first that the immediate custodian rule does not apply to Mr. Sanchez-Penunuri's type of challenge to detention. Second, this Court finds that at least two of the originally named respondents--the Attorney General and DHS Secretary--are properly named. Third, however, out of an abundance of caution and for the reasons stated below, this Court declines to dismiss any respondent from this case.
2. Padilla Exception for Immigration Detention
As an initial matter, this Court notes that the government's basis for demanding that the other named respondents be dismissed is entirely contained within one relatively short footnote at the beginning of the government's response to Mr. Sanchez-Penunuri's petition. (Doc. # 11, at 1 n.1.) This Court views what is a borderline conclusory argument as insufficient, especially because the government fails to alert the Court to adverse authority contained
in Padilla itself that might dictate a different result.
In particular, the government inexplicably ignores a footnote appended to the language it references from Padilla, which in fact qualifies the Padilla holding by stating that the Court has " left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation." Padilla, 542 U.S. at 435 n.8. This same footnote in Padilla references (but declines to weigh in on) a circuit split on whether the immediate custodian rule applies in the immigration detention context. See also id. at 458 (Stevens, J., dissenting) (" All Members of this Court agree that the immediate custodian rule should control in the ordinary case . . . . But we also all agree . . . that special circumstances can justify exceptions from the general rule." (internal quotation marks omitted)).
The Tenth Circuit has yet to weigh in on the circuit split identified in Padilla. Thus, deciding what appears to be an issue of first impression in this circuit, this Court first concludes that the immediate custodian rule does not apply in the immigration detention context, at least under the unique circumstances of this case. In reaching this conclusion, this Court is guided in part by reasoning of the Ninth Circuit in Armentero v. INS, 340 F.3d 1058, 1059-60 (9th Cir. 2003) ( Armentero I ), reh'g granted, opinion withdrawn, 382 F.3d 1153 (9th Cir. 2004), opinion after grant of reh'g, 412 F.3d 1088 (9th Cir. 2005) ( Armentero II ), which this Court reviews in detail below.
3. Armentero I
Armentero I, which was decided about a year before Padilla and is referenced in the aforementioned Padilla footnote, concerned a habeas challenge to immigration detention brought by Luis Armentero, a Cuban national. Although Mr. Armentero was found removable from the United States, immigration authorities could not return him to Cuba. The Immigration and Naturalization Service (INS) nevertheless kept him detained, with no apparent plan to release him. Mr. Armentero challenged this detention on constitutional grounds and named the INS as the sole respondent in a habeas petition brought under 28 U.S.C. § 2241.
The Ninth Circuit declined to reach the merits of Mr. Armentero's petition, finding that the INS was an improper respondent. Ultimately, after reviewing prior Supreme Court and lower-court precedent on the matter, the Ninth Circuit concluded " while a petitioner's immediate physical custodian is typically a proper respondent in traditional habeas petitions, the statutory custodian requirement of 28 U.S.C. § 2241 is sufficiently flexible to permit the naming of respondents who are not immediate physical custodians if practicality, efficiency, and the interests of justice so demand." Id. at 1068.
The Ninth Circuit reached this conclusion in part because of the distinctive nature of immigration detention which, as the court explained, is often outsourced to state, local, and even private facilities. As the Ninth Circuit reasoned, when immigration detainees are housed in such non-federal facilities, " a writ directed to the warden of the institution would make little legal sense, as the wardens' control over immigration detainees in their institutions results from their limited contractual arrangements with federal authorities." Id.
Having concluded that the immediate custodian rule did not apply, the Ninth Circuit endeavored to identify the proper custodian under the unique facts of Mr. Armentero's case. Id. at 1068. Importantly, at the time Armentero I was decided, the government agreed with the Ninth Circuit that the immediate custodian rule should not apply: rather than identifying the warden of an INS detention facility as a proper respondent, the government advanced the position that the appropriate respondent was the " Bureau of Immigration and Customs Enforcement Interim District Director for the region in which a petitioner is detained." Id. at 1071; see also id. (" Notably, neither party proposes that the warden of the facility in which Armentero is detained is the appropriate respondent." (emphasis in original)).
The Ninth Circuit disagreed with the government as to the identity of the correct respondent, concluding that both the Attorney General and the Secretary of DHS were the proper respondents for Mr. Armentero's petition. Id. at 1071. In support of this position, the Ninth Circuit relied on a number of statutory authorities, along with regulations and legal memos issued by both the Department of Justice and the Department of Homeland Security (DHS), which suggested that the heads of both of these federal departments exercised control over different aspects of Mr. Armentero's detention.
Because DHS had only recently been created, the Armentero I court could not
determine which of these two department heads exercised more control over the detainee or if one department exercised exclusive control. The court concluded " [u]ntil the exact parameters of the Attorney General's power to detain noncitizens under the new Homeland Security scheme are decisively delineated, we believe it makes sense for immigration habeas petitioners to name the Attorney General in addition to naming the DHS Secretary as respondents in their habeas petitions." Id. at 1073 (emphasis in original). The Ninth Circuit remanded the case with instructions that these government officials be added as respondents. Id. at 1074.
4. Armentero II
The Supreme Court's decision in Padilla prompted the Armentero I panel to grant a petition to rehear the case. However, at some point during the litigation, Mr. Armentero apparently absconded from the facility where he had been detained. In light of this development, a two-judge majority on the Armentero I panel vacated the original decision in accord with the " fugitive disentitlement" doctrine. Armentero II, 412 F.3d 1088 (9th Cir. 2005).
Judge Berzon, however, disagreed with the two-judge majority that the fugitive disentitlement doctrine applied. In dissent, she explained how she would have resolved the merits of the question to be addressed on rehearing: namely, the application of the immediate custodian rule in light of Padilla. See Armentero II, 412 F.3d 1088, 1088-1091 (9th Cir. 2005) (Berzon, J., dissenting). This analysis is instructive to the issue to be decided here.
In addressing the merits, Judge Berzon first noted how the government's position had changed in light of Padilla :
The government did not argue in Armentero I that the immediate custodian was the proper respondent. Rather, it argued that the proper respondent was the [INS] District Director (now the [ICE] " Field Office Director" )--the supervisor of the local office of the then-INS. Moreover, the government argued then, and continues to suggest now, that, so long as a detainee files his habeas petition in the district of confinement, the immediate custodian rule need not apply. In such a case, the government purports to " waive" whether the proper respondent is the Field Office Director or a subordinate, so long as it is no one superior to the Field Office Director.
Armentero II, 412 F.3d at 1096 (footnote omitted; emphasis in original). In other words, there was virtually no material difference between the government's position in Armentero I and Armentero II : in both cases the government advocated that the immediate custodian rule did not apply and that a local official, the ICE Field Office Director (ICE FOD), was the proper respondent. See also Campbell v. Ganter, 353 F.Supp.2d 332 (E.D.N.Y. 2004) (adhering to this same position, post- Padilla ).
Nevertheless, Judge Berzon disagreed with the government, reasoning that a local official such as an ICE FOD could not serve as a proper respondent. She began by suggesting the Padilla decision itself misapplied Wales, which, as mentioned above, was the main case the Supreme Court relied upon in articulating the immediate custodian rule. Quoting an opinion from another district court, Judge Berzon noted:
We often think of habeas corpus as the remedy the prisoner seeks, i.e., that if the prisoner is entitled to relief, the court will issue a writ of habeas corpus, which will end his imprisonment. But as the older statutes show, the writ of habeas corpus merely initiates the proceedings. It is analogous in this respect to the writ of certiorari, another prerogative writ still in use. When the Supreme Court grants a writ of certiorari, it is bringing the case before it for decision rather than deciding it on the merits. The same is true in the case of habeas corpus.
Armentero II, 412 F.3d at 1097 (quoting Roman v. Ashcroft, 162 F.Supp.2d 755, 759 (N.D. Ohio 2001)).
Drawing on this analogy between the habeas writ and the certiorari writ, Judge Berzon noted that " [a]t the time of Wales," naming the immediate custodian " was a practical necessity" because that person was " best suited physically to bring the prisoner before the court, regardless of his authority to effectuate the prisoner's release." Id. (emphasis in original). The need to require the prisoner's presence on the habeas writ, however, was obviated by the growing practice adopted by habeas courts of requiring show-cause proceedings before issuing the writ. Id. This practice, endorsed unanimously by the Supreme Court in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), is now codified in 28 U.S.C. § 2243, the statute that governs the issuance of the writ. Armentero II, 412 F.3d at 1097.
In light of this precedent and history, Judge Berzon concluded that the Wales Court's version of the " immediate custodian rule" was based on " what is today a legal anachronism: that the petitioner is actually to be brought before the court." Id. at 1098. In other words, before Walker, there existed a perceived requirement to use the habeas writ as a necessary trigger for determining the merits of a habeas petition: just as the Supreme Court cannot decide a case without granting the certiorari writ, so too was a court unable to decide a habeas case without granting the habeas writ and having the presence of the " corpus" at the proceeding on the merits.
But in light of Walker and the codification of the show-cause rule in § 2243, Judge Berzon advocated that " [t]oday . . . the more central question raised in a habeas petition is whether the respondent has the authority to effectuate the petitioner's release." Id. Thus, reasoned Judge Berzon, the exceptions to the immediate custodian rule, such as those referenced in the aforementioned Padilla footnote, were driven by " practical considerations," in order to avoid naming a respondent with no real power to effectuate release. Id.
Having charted the contours of the immediate custodian rule, its exceptions, and the reasoning that drives the exceptions, Judge Berzon applied this reasoning to the facts of the petitioner's case. After a review of the specific statutes and rules authorizing and regulating detention for noncitizens such as Mr. Armentero, Judge Berzon concluded that no local official, such as an ICE FOD, could authorize his release. Rather, Judge Berzon concluded that the correct respondent must be an official superior to the local ICE official because only such a person would have the authority to effectuate release, under regulations relevant to the unique circumstances of Mr. Armentero's case. Id. at 1099-102.
5. The Immediate Custodian Rule and Immigration Detainee Access to Discretionary Relief
Since Armentero II, the government has apparently reconsidered its position on the application of the immediate custodian rule in immigration detention cases. Whereas in Armentero II (and Armentero I ) the government argued that the immediate custodian rule did not apply and a local ICE FOD was a proper respondent, now the government suggests that the rule does apply and the ICE FOD is an improper party. Indeed, the government's newfound eagerness to raise challenges about proper habeas respondents appears to be about six months old: in Baquera v. Longshore, No. 13-CV-00543-RM-MEH, 948 F.Supp.2d 1258, 2013 WL 2423178 (D. Colo. June 4, 2013), a habeas challenge with the same claims as those at issue here, the government raised no argument about the propriety of naming the exact same officials as those identified by Mr. Sanchez-Penunuri.
Further, the government's novel position on this question appears in tension with the relevant regulations interpreting § 1226(c). These regulations authorize the ICE District Director, not the immediate custodian, to exercise his or her discretionary judgment to release noncitizens whose prolonged detention might violate the Constitution. See 8 C.F.R. § 1236.1(c)(6)(i); id. § 1236.1(c)(6)(ii).
In fact, apart from an immigration judge, the ICE District Director is the only official who appears authorized by regulation to make custody decisions for immigration detainees. Further, this Court finds no regulation identifying the warden of an immigration detention facility as the person with authority to release a detainee. Perhaps this is because, as the Armentero I court observed, ICE often
outsources detention to state, local, or private facilities and therefore endowing such an official with this authority " would make little legal sense, as the wardens' control over immigration detainees . . . results from their limited contractual ...