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Diaz-Ceja v. McAleenan

United States District Court, D. Colorado

July 2, 2019

JOEL DIAZ-CEJA, Petitioner,
KEVIN McALEENAN,[1] Respondent.


          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Petitioner Joel Diaz-Ceja's ("Petitioner" or "Mr. Diaz-Ceja") Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("the Petition"). [#7, filed April 26, 2019]. The then-presiding judge, the Honorable Gordon P. Gallagher, issued an Order to Show Cause ordering Respondent, the then-Secretary for Homeland Security Kirstjen Nielsen ("the Secretary" or "Respondent") to show cause why Petitioner is not being illegally detained. [#8]. The Secretary filed a Response on May 23, 2019 [#21] and Petitioner filed a Reply on June 10, 2019. [#23]. The undersigned presides over this case pursuant to 28 U.S.C. § 636(c), the parties' consent [#16], and the Order of Reference dated May 20, 2019 [#18]. For the reasons stated in this Memorandum Opinion and Order, the Petition for Habeas Corpus is GRANTED IN PART and DENIED IN PART


         Mr. Diaz-Ceja is a thirty-three-year-old Mexican citizen resident in the United States and currently subject to removal proceedings. [#7 at ¶ 1]. He arrived without inspection as a child in May 1991 and has lived in the United States since that time. [Id. at¶ 2]. In 2016, [3] Mr. Diaz-Ceja entered into a deferred judgment for Transporting a Controlled Substance in violation of Nevada Revised Statute §453.321 ("the drug offense"). [Id.]. Following his plea, Petitioner entered a diversionary program under a deferred judgment. [Id; #21-2 at 5]. On March 9, 2017, while checking in with his probation officer, he was detained and issued a Notice to Appear ("the Notice" or "NTA") by officers from the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). [Id; #21-1 at 2; #21-17 at ¶ 6]. The Notice did not have a date and time for Mr. Diaz-Ceja's appearance at further proceedings. [#7 at 15].

         Mr. Diaz-Ceja was initially detained pursuant to ICE's discretion to detain an alien under 8U.S.C. § 1226(a), which provides "[o]n 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." He then requested a bond redetermination hearing before an Immigration Judge ("IT") before the Executive Office for Immigration Review ("EOIR") to seek his release pending removal proceedings. [#21-17 at ¶ 8; #21-3 at 2]. The IJ denied bond on April 11, 2017. In doing so, the IJ did not find that he was required to hold Mr. Diaz-Ceja pending a removal decision because he was inadmissible due to his conviction relating to a controlled substance as defined by2lU.S.C. § 802. Instead, the IJ concluded that Petitioner did not meet his burden of proving that he is not a danger to the community and in fact finding that Mr. Diaz-Ceja's drug offense rendered him a, per se danger to the community, [#2l-3 at 3]. Mr. Diaz-Ceja appealed the denial of his request to change his custody status to the Board of Immigration Appeals ("BIA"). [#21-17 at¶ 9; #21-4]. The BIA rejected Petitioner's appeal, [#2l-4 at 3].

         On June 6, 2017, Mr. Diaz-Ceja appeared before an IJ for a hearing on the merits of his immigration status and he was ordered removed to Mexico, [#2l-5 at 2-3]. Mr. Diaz-Ceja conceded removability based on the fact that he had entered without permission [#2l-6 at 7-8], but sought relief from removal based on asylum, withholding of removal, and under the Convention Against Torture. The IJ denied his requests for relief, finding him ineligible based on his conclusion that Mr. Diaz-Ceja's drug offense qualified as an "aggravated felony." [#2l-5; #21-6]. Petitioner again appealed to the BIA which again denied relief in an order dated September 5, 2017, rejecting Mr. Diaz-Ceja's argument that his deferred judgment did not qualify as a conviction for immigration law purposes, [#2l-6 at 6]. Petitioner then sought review in the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") which issued a temporary stay of removal pending a decision on the matter before it. [#2l-7 at 2 (the stay)]. While this review was pending and pursuant to governing law in the Ninth Circuit, ICE conducted an evaluation of Petitioner's detention and decided not to release Mr. Diaz-Ceja pending the Ninth Circuit's review. [#2l-8at2].

         Mr. Diaz-Ceja then again requested bond redetermination before an LJ and was again denied relief on December 18, 2017. [#21-9at2-3]. Less than a month later, Mr. Diaz-Ceja made the same request with the same result. [#21-10 at2]. Petitioner then appealed this January decision to the BIA which dismissed the appeal on June 29, 2018. [#21-11 at2]. In the interim, Petitioner was transferred to his current facility, the "GEO CDF," in Aurora, Colorado, and the Ninth Circuit issued a formal stay of removal pending review. [#21-12 at 2; #21-17 at¶ 18].

         On August 3, 2018, Mr. Diaz-Ceja filed a motion to reopen and terminate removal proceedings which was denied. [#21-13 at 2-3]. The BIA affirmed on April 9, 2019 because Petitioner's drug offense constituted an aggravating felony which rendered him ineligible for cancellation of removal and the motion to reopen was untimely in any event. [#21-14 at 2-3]. On February 19, 2019, the Government sought remand from the Ninth Circuit for the BIA to consider intervening changes in caselaw that might alter the effect of Petitioner's drug conviction upon his immigration status.[4] [#21-15]. The Ninth Circuit granted the remand to the BIA on April 22, 2019. [#21-16]. As discussed at the Status Conference held June 6, 2019, the briefing before the BIA is ongoing and Petitioner is not currently subject to an order of removal. [#22].

         Mr. Diaz-Ceja filed the present Application for Habeas Corpus on March 19, 2019. [#l]. After an initial screening process was held, the court twice ordered Mr. Diaz-Ceja to file amended Petitions. On April 26, 2019, Mr. Diaz-Ceja filed the operative Amended Application for Writ of Habeas Corpus ("Petition"). [#7]. In the Petition, he identifies three claims: (1) a violation of the due process guaranteed by the Fifth Amendment, arguing that "due process requires that the government establish, at an individualized hearing before a neutral decision maker, that Petitioner's detention is justified by clear and convincing evidence of flight risk and danger, even after consideration whether alternatives o [sic] detention could sufficiently mitigate that risk;" (2) a violation of the prohibition against excessive bail under the Eighth Amendment; and (3) termination of removal proceedings for lack of jurisdiction based on the lack of specific time and date for removal proceedings on the NTA [#7 at 5]. The court subsequently issued an Order to Show Cause to the Government to demonstrate why Petitioner's continuing detention was not illegal. [#8]. The matter was then drawn to the undersigned Magistrate Judge who presides pursuant to 28 U.S.C. § 636(c) with the Parties' consent. [#16, #18]. Briefing is now complete [#21; #23], and thus, the court turns to the merits of the instant Petition.


         This Court may review a petition for writ of habeas corpus on the ground that a petitioner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for immigration detention unrelated to a final order of removal. See Carbajal v. Holder, 43 F.Supp.3d 1184, 1186 (D. Colo. 2014) (citing Demore v. Kim, 538 U.S. 510, 517-18 (2003)). Relevant here, a detainee may bring a habeas petition under this section if his or her confinement violates the Fifth Amendment's guarantee of due process. See, e.g., Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1212 (10th Cir. 2009).

         It is well established that the Fifth Amendment entitles noncitizens[5] to due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903)); Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893) ("[All noncitizens] residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility."). Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Id. (quoting Jones v. United States, 463 U.S. 354, 361 (1983)); see also Kansas v. Hendricks, 521 U.S. 346, 357 (1997) ("We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards."). Case law emphasizes that due process usually requires that the Government bears the burden of proving facts to justify civil detention. Zadvydas v. Davis, 533 U.S. 678, 692 (2001); Foucha, 504 U.S. at 80; Addington v. Texas, 441 U.S. 418, 431-33 (1979).


         I. First Claim: Due Process Challenge to Allocation of the Burden of Proof in Bond Redetermination Proceedings

         A. Petitioner's Detention

         Because it is significant to this court analysis, the court first considers the framework of detention pending removal generally, and then the specific basis for Petitioner's Detention. Section 1226(a) of Title 8 of the United States Code provides that noncitizen "may be arrested and detained pending a decision on whether the alien is to be removed from the United States." After ICE makes an initial decision to detain a noncitizen, the noncitizen may request a custody redetermination hearing from an LJ at any time before a removal order becomes final. 8 C.F.R. § 236.1(d)(1). That bond decision is appealable to the BIA. 8 C.F.R. § 1003.19(f). But pursuant to 8 U.S.C. § 1226(c), the Attorney General "shall take into custody" any noncitizen who is inadmissible by reason of having committed any offense covered by 8 U.S.C. § 1182(a)(2), including "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21);" and noncitizens "who the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance of in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so." Noncitizens who are subject to mandatory detention under 8 U.S.C. § 1226(c) may only be released on a narrow basis, i.e., when release from custody is "necessary to provide protection to a witness, potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such investigation," and the noncitizen "will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." 8 U.S.C § 1226(c)(2).

         Though the Government argues that the Petitioner is "now held under § 1226(c)," the record before the court does not support such a conclusion. Though not entirely clear, this court interprets the Government's argument to be that Mr. Diaz-Ceja was afforded a bond hearing under § 1226(a) only because the Ninth Circuit's holding at the time that noncitizens who were not taken into custody immediately upon release from their criminal sentences could not be subject to mandatory detention without a bond hearing, a standard that has since been abrogated by the Supreme Court in Nielsen v. Preap, 139 S.Ct. 954, ___U.S.___ (2019). [#21 at 10-11]. But the record does not demonstrate that the Attorney General first found that Mr. Diaz-Cej a was subject to mandatory detention pursuant to § 1226(c) but nevertheless afforded him a bond hearing under § 1226(a). Nor is there any admission that he is subject to mandatory detention by Mr. Diaz-Ceja in the record.

         There can no dispute that Mr. Diaz-Ceja was originally taken into custody pursuant to a NTA that charged him with inadmissibility based on § 2l2(a)(6)(A)(i) of the Immigration and Nationality Act ('TNA") as a noncitizen 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, [#2l-2]. The NTA reflects no charge that he is inadmissible based on his drug offense. [Id.]. He was provided a bond determination hearing pursuant to § 1226(a), with no mention of § 1226(c).

         With respect to his initial bond redetermination hearing, the IJ did not find the Petitioner to be subject to mandatory detention under 8 U.S.C. § 1226(c) but found that Mr. Diaz-Ceja had not carried his burden of establishing that he was not a danger to the community, [#2l-3 at 2-4]. On appeal, the BIA affirmed the IJ's denial of bond on the same grounds, [#2l-4 at 2-3]. ICE's Decision to Continue Detention dated December 8, 2017 also makes no mention of mandatory detention, [#2l-8 at 2]. Similarly, there is no indication in either the IJ's Order dated December 18, 2017 or January 11, 2018 that Mr. Diaz-Ceja was subject to mandatory detention for his criminal conviction, [#2l-9; #21-10]. And the BIA decision dated June 25, 2018, indicates that the IJ declined to exercise jurisdiction to conduct a custody redetermination hearing because he believed that Petitioner was subject to a final order of removal (and thus, detention pursuant to 8 U.S.C. § 1231(a)(6)), and then affirmed the IJ's determination, presumably because the Ninth Circuit's requirement that a noncitizen receive periodic bond hearings after an initial bonding hearing had been abrogated by the United States Supreme Court's ruling in Jennings v. Rodriguez, 138 S.Ct. 830, ___U.S.___ (2018). There is no discussion of the elements of § 1226(c) or 8 U.S.C. § 1182(a)(2), or whether Mr. Diaz-Ceja's drug offense satisfies those elements. There are simply no indicia that either the IJ or the BIA determined that Mr. Diaz-Ceja was subject to mandatory detention pursuant to 8 U.S.C. § 1226(c) based on his drug offense.

         While the Government contends that "[t]he criminal grounds on which an alien is subject to mandatory detention are also grounds on which the alien is removable from the United States," and Mr. Diaz-Ceja was able to seek a hearing to challenge the grounds for his removal [#21 at 8-9], the issues, and the attendant legal standards, are not identical. Mr. Diaz-Ceja is challenging the IJ's substantive finding that he was ineligible for asylum based on his conviction for an "aggravated felony, "[6] See [#2l-6]; 8 U.S.C. § 1158(b)(2)(B). In doing so, there is no discussion focused on what provision of the IN A applies to Mr. Diaz-Ceja's detention or whether, due to the initial determination of "aggravated felon," Petitioner is subject to mandatory detention pursuant to § 1226(c).

         Accordingly, this court declines to make such a finding here. First, despite the Government's argument to the contrary [id], there is no indication in the record that Mr. Diaz-Ceja has ever received a Joseph hearing to challenge whether he is subject to mandatory detention under 8 U.S.C. § 1226(c) because, of course, there is no indication that the Attorney General has ever made such determination. Second, as a matter of administrative law generally, district courts decline to substitute their judgment for agency action. Indeed, though not applicable in this case, petitioners are ordinarily required to exhaust their administrative remedies prior to seeking a writ under §2241. Baquera v. Longshore, 948 F.Supp.2d 1258, 1259 (D. Colo. 2013) (citing Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam)) abrogated on different grounds by. Nielsen v. Preap, 139 S.Ct. 954 (2019) (holding that 8 U.S.C. § 1226(c) may not be read to require a bond hearing under § 1226(a) when noncitizen is not detained immediately after his criminal sentence). And in the immigration context, district courts lack jurisdiction to review any exercise of discretion or orders against criminal noncitizens as to a particular individual, including bond determinations. 8 U.S.C. §§ 1226(e), 1252(f)(2). Put another way, had the LI or BIA determined Mr. Diaz-Ceja was a criminal noncitizen requiring detention, this court would lack jurisdiction to review that substantive determination. Thus, it seems unlikely that Congress intended this court to make any determination that Mr. Diaz-Ceja is subject to mandatory detention in the first instance when nothing in the record indicates that either the IJ or the BIA passed on this issue.

         Accordingly, this court proceeds based on the only conclusion that is clear from the record: that Mr. Diaz-Ceja is held subject to § 1226(a), not § 1226(c). It is undisputed that Mr. Diaz-Ceja has been afforded a number of reviews and hearings on his custody status, and if the issue before the court was focused upon whether Mr. Diaz-Ceja has been afforded a sufficient quantity of process or if the record was clear that Petitioner was subject to mandatory detention under § 1226(c), the court's analysis would necessarily be different. But given the record before it, the precise question before the court in this habeas action is whether Mr. Diaz-Ceja is being held pursuant to 8U.S.C. § 1226(a) in constitutionally flawed manner, i.e., instead of placing the burden upon the noncitizen that he should be released, the Government should bear the burden of establishing that detention is necessary. The court turns to that question now.

         B. Relevant Authority

         1. BIA Decisions

         The BIA addressed the question of burdens in 1976 in the casein re Patel, 15 I. & N. Dec. 666, 666 (BIA 1976) where it found a presumption against detention, holding that "[a]n 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[.]" (citations omitted). See also Mary Holper, The Beast of Burden in Immigration Bond Hearings, 67 CASEW. RES. L. REV. 75, 82 (2016). Both before and after Patel, the executive recognized important due process rights for noncitizens facing detention pending removal. See e.g., In re Kwun, 13 I. & N. Dec. 457, 464 (B.I. A. 1969) ("In our system of ordered liberty, the freedom of the individual is considered precious. No deportable alien should be deprived of his liberty pending execution of the deportation order unless there are compelling reasons and every effort should be made to keep the period of any necessary detention at a minimum."); In re Andrade, 19 I. & N. Dec. 488, 489 (BIA 1987); Matter of' Spiliopoulos, 16 I. & N. Dec. 561, 563 (BIA 1978).

         The BIA reversed this longstanding interpretation in the case In Re Adeniji, 221. & N. Dec. 1102, 1116 (BIA 1999), where it shifted the burden to the noncitizen to prove that "his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings." In other words, once a noncitizen has been detained, he is presumptively detained unless he can affirmatively prove to the U's satisfaction that he is not a threat or flight risk. More recently, the BIA reiterated that "[t]he burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond." In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). The BIA relied on the prior United States Supreme Court rulings that noncitizens in removal proceedings had no constitutional right to release on bond and that the Attorney General enjoys "extremely broad discretion in deciding whether or not to release an alien on bond." Id. (citing Carlson v. Landon, 342 U.S. 524, 534 (1952)).[7] Citing to Patel, the BIA held that "[i]n general, an Immigration Judge must consider whether an alien who seeks a change in custody status is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." Guerra, 24 I. & N. Dec. at 39.

         2. Supreme ...

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