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Casillas v. Sessions

United States District Court, D. Colorado

July 20, 2017

JEFFERSON BEAUREGARD SESSIONS III, U.S. Attorney General; IVAN E. GARDZELEWSKI, Immigration Judge; JOHN F. KELLY, Secretary of the Department of Homeland Security; JEFFREY LYNCH, U.S. ICE Field Office Director for the Denver Field Office; TRACEY CAMMORTO, Acting U.S. ICE Assistant Field Office Director for the Denver Field Office; and JOHNNY CHOATE, Warden of the Denver ICE Contract Detention Facility, Respondents.


          Craig B. Shaffer United States Magistrate Judge

         Before the court is a verified petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by pro bono counsel on behalf of Petitioner Hilaria Aurora Quintana Casillas (“Petitioner”). Petitioner alleges that the Bureau of Immigrations and Custody Enforcement (“ICE”) is detaining her in violation of federal law.[1] Judge David M. Ebel referred the Petition to this court for a recommendation. Doc. 10. The court recommends denying the first cause of action for failure to state a claim and recommends dismissing the second cause of action without prejudice as premature, requiring Petitioner to first pursue review under 8 C.F.R. § 241.13.


         The following facts appear to be undisputed.

Hilaria Aurora Quintana-Casillas (the applicant) is a fifty-five-year-old native and citizen of Mexico. The applicant was previously removed from the United States in 2002 to Mexico. She reentered the United States without inspection in December 2013 at El Paso, Texas. On June 2, 2016, the Department of Homeland Security (DHS or the Department) served the applicant with a Notice of Intent/Decision to Reinstate Prior Order. The applicant expressed a fear of returning to Mexico and was referred to an Asylum Officer (AO) for a reasonable fear interview. The applicant was interviewed on June 22, 2016. On June 23, 2016, the AO found that the applicant had not established a reasonable fear of persecution upon return to Mexico and referred her case to the Court by filing a Form I-863, Notice of Referral to the Immigration Judge (I-863). Exh. 1. The Court vacated the decision of the AO on July 20, 2016, and the applicant was placed in "withholding-only" proceedings.

Doc. 1-1 at 1 (In re Quintana-Casillas, File No. A# 090 321 665, Executive Office for Immigration Review, written decision of Alison R. Kane, Immigration Judge, Feb. 7, 2017).

[Petitioner] became a lawful permanent resident of the United States in 1989. In 1997, Petitioner was convicted in New Mexico state court of possession of marijuana with intent to distribute and conspiracy to distribute marijuana. Petitioner lost her legal permanent resident status as a result of the removal proceedings initiated after this conviction and was removed to Mexico in June 1999. Petitioner illegally reentered the United States about a month later. In 2001, Petitioner was convicted in a Colorado state court for possession of cocaine with intent to distribute a controlled substance. Petitioner was sentenced to eight years of imprisonment, and the sentence was suspended after having credited her with 95 days for time served. Doc. 1-1 at 9. Petitioner was removed again to Mexico in 2002. Petitioner illegally reentered the United States in December 2013.

Doc. 14 (the Government's Response, citations to Declaration of Tracey Cammorto, Doc. 14-1 ¶¶ 3-6 omitted).

         The immigration judge denied Petitioner's requests for withholding of removal, due to her criminal convictions, and granted her request for deferral of removal. Doc. 1-1 at 7-11. DHS appealed the deferral order to the Board of Immigration Appeals (“BIA”). Petitioner requested that an immigration judge hold an individualized bond hearing; on March 23, 2017, that request was denied for lack of jurisdiction to conduct a bond hearing in a “withholding only” proceeding. Doc. 1-3.

         At some point after DHS filed its appeal with BIA, Petitioner requested that the Enforcement and Removal Operations (“ERO”) department of ICE exercise “prosecutorial discretion.” That request is reflected in in the email response of Tracey Cammorto, Acting Assistant Field Office Director, DHS/ICE/ERO/GEO:

This response is to your request for ERO to exercise prosecutorial discretion in the case of your client, Quintana Casillas, Hilaria Aurora A090 321 665. DHS filed an appeal with the Board of Immigration Appeals (BIA) on March 8, 2017 which is currently pending, and there is no final order granting any form of protection. Ms. Quintana Casillas is subject to a final order of removal and is properly detained as her criminal history presents concerns for public safety. Your client is an aggravated felon with convictions for Controlled Substance Possession W/Intent to Distribute and sentenced to 8 years in Dept. of Corrections, suspended. She has another conviction for Felony Conspiracy and Felony Controlled Substance Distribution and was sentenced to 18 months imprisonment, suspended. Ms. Quintana Casillas' criminal history warrants continued detention as provided for in the memo from Michael J. Garcia, former Assistant Secretary, regarding the detention policy where an Immigration Judge has granted Asylum and ICE has appealed, dated February 9, 2004.
Once there is a final decision on the appeal with the BIA, we will be able to address the custody concerns you have for your client.

Doc. 1-4 (Ex. D to Petition, email of Tracey Cammorto, dated March 27, 2017).

         One month later, Petitioner filed her present habeas petition through pro bono counsel. Doc. 1. On May 10, 2017, the court found good cause to require the Respondents to show cause why the petition should not be granted. Doc. 12. Briefing was completed May 19, 2017.

         On July 14, 2017, Petitioner filed a status update regarding the Government's appeal of the deferral order. Doc. 16. Petitioner's counsel states that upon calling the BIA on that date, he was informed that the appeal had been remanded to the immigration judge for further proceedings. Id. at 2. On July 18, 2017 Petitioner filed a copy of the BIA's July 13, 2017 order. Doc. 17-1. The BIA dismissed the Government's appeal and remanded to the immigration judge pursuant to 8 C.F.R. § 1003.1(d)(6) for “the purpose of allowing the Department of Homeland Security the opportunity to complete or update any identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order.” Id. at 2. As far as the court is aware, Petitioner continues to be detained.


         The court has jurisdiction to hear the Petition because Petitioner alleges that she “is in custody in violation of the Constitution, or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (“§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention”). Having reviewed the court's file including the Petition, Defendants' response (doc. 14) to the show cause order, and the Petitioner's reply (doc. 15) in support of her Petition, the court has determined that it can address the issues discussed in this recommendation without a hearing. 28 U.S.C. § 2243; Sayed v. Trani, No. 16-cv-00926-RBJ, 2017 WL 698799, at *1 (D. Colo. Feb. 21, 2017) (citing Jeter v. Keohane, 739 F.2d 257, n.1 (7th Cir. 1984) (“An evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court.”).

         “Immigration law is distinguished by its complexity more than by its clarity.” Garcia v. Sessions, 856 F.3d 27, 30 (1st Cir. 2017). At least two statutes govern the detention of aliens who are present in the United States: 8 U.S.C. § 1226 and 8 U.S.C. § 1231. The former addresses arrest and detention of aliens “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Section 1226 provides a bond hearing, except for certain “criminal aliens” whose detention (without a bond hearing or parole) is mandatory. 8 U.S.C. § 1226(a), (c)(1). Section 1231 addresses detention of aliens who have been “ordered removed, ” requires detention during a 90 day removal period (measured from the date the removal order is “administratively final”), and expressly provides that detention beyond the 90 day period may be extended indefinitely for certain criminal aliens. 8 U.S.C. § 1231(a)(1)(A), (1)(B), (2), (6). This Petition asks the court to resolve which of these two statutes applies to Petitioner and then to hold that her continued detention violates her due process rights.

         A. Count I

          In her first claim, Petitioner alleges that 8 U.S.C. § 1226 governs her detention, subject to due process requirements, because while the Government's appeal of the deferral order was pending, she awaited a “decision on whether [she] is to be removed” within the meaning of § 1226(a).[2] Petitioner admits that subsection (c) of the statute applies to her and thus her detention is mandatory without a right of bond hearing or parole. Doc. 1 at 6-7. She argues that § 1226(c) is nonetheless limited by constitutional due process rights, citing Demore v. Kim, 538 U.S. 510 (2003). Specifically, Petitioner argues a right to an individualized bond hearing in front of an immigration judge after her detention became prolonged.

         In Demore, the Court held § 1226(c) constitutional because aliens could “be detained for the brief period necessary for their removal proceedings, ” which was “roughly a month and a half in the vast majority of cases in which [§1226(c)] is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” 538 U.S. at 513, 530. For the same proposition, Petitioner also cites a pending case at the U.S. Supreme Court, Jennings v. Rodriguez, No. 15-1204, 136 S.Ct. 2489 (2016), and several circuit opinions outside the Tenth Circuit.[3] Petitioner alleges that her detention under § 1226(c) has become prolonged, that Respondents have therefore violated her due process rights by not granting her request for an individualized bond hearing, and requests that the court order the immigration judge to hold such a hearing.

         However, Petitioner also recognizes that she is subject to a removal order that the Government reinstated pursuant to § 1231:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5) (emphasis added). Thus, Petitioner has been “ordered removed” within the meaning of 8 U.S.C. § 1231 and is barred from seeking ...

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