Abbas Hossenini v. DHS ICE

• Court: District Court, S.D. California
• Decided: October 16, 2019
• Docket: 3:18-cv-01771
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABBAS HOSSENINI, Case No.: 18-CV-1771 JLS (BLM)

12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS 14 DHS ICE, Chief Counsel,

15 Respondent. (ECF No. 1) 16 17 18 Presently before the Court is Petitioner Abbas Hossenini’s Petition for Writ of 19 Habeas Corpus (“Pet.,” ECF No. 1) under 28 U.S.C. § 2441. Petitioner, proceeding pro 20 se, is currently in the custody of the United States Immigration and Customs Enforcement 21 (“ICE”), an agency of the United States Department of Homeland Security (“DHS”). Pet. 22 1–3.1 Petitioner alleges Fifth Amendment due process and Eighth Amendment violations 23 arising out of his prolonged detention without a bond hearing for more than twenty-one 24 months. Id. at 3, 49. Petitioner requests release from ICE custody either in California or 25 via deportation to “anywhere in the world.” Id. at 49. 26

27 1 Pin citations to the Petition refer to the CM/ECF page numbers electronically stamped at the top of each 28 1 On August 19, 2019, the Court issued an Order pursuant to 28 U.S.C. § 2243 for 2 Respondent to show cause why the Petition should not be granted. See ECF No. 12. As 3 of the date of this Order, the Court has received no response. After a thorough review of 4 Petitioner’s arguments and evidence and the law, the Court GRANTS IN PART and 5 DENIES IN PART the Petition. 6 BACKGROUND 7 Petitioner, a citizen and native of Afghanistan, was granted refugee status by the 8 United Nations in 2012 in Turkey. ECF No. 10 (“Letter”) at 3. Petitioner possessed no 9 travel documents and only had a temporary ID card. Id. United States Immigration 10 Officials in Turkey knew that Petitioner had no travel documents yet granted him 11 admission into the United States. Id.; Pet. at 50. Petitioner was admitted into the United 12 States on or around September 25, 2012, Pet. at 20, and became a Legal Permanent 13 Resident on June 30, 2014. Id. at 8. 14 While residing in the United States, Petitioner was charged with and pled guilty to 15 multiple criminal offenses. See id. at 20–46. Notably, Petitioner was convicted for 16 violating California Penal Code section 243(e)(1)—for domestic violence—on August 15, 17 2014, and for violating protective and stay away orders intended to prevent domestic 18 violence on May 28, 2015, and June 13, 2016. Id. at 20–21, 25–28, 35–36, 41–43. 19 On October 21, 2016, ICE took Petitioner into custody “[p]ursuant to section [] 20 237(a)(2)(E)(i) of the Immigration and Nationality Act as amended for a crime of domestic 21 violence.” Id. at 20. Because Petitioner was convicted of a crime of domestic violence 22 within five years of entry into the United States, Petitioner was subject to removal. Id. at 23 21. On July 31, 2017, an Immigration Judge ordered Petitioner removed from the United 24 States to Afghanistan. Id. at 16. Petitioner has not been removed from the United States 25 and remains in ICE custody at the Otay Mesa Detention Center. Id. at 2–3. 26 Petitioner alleges that his “deportation officer told [him] that if [he] was not deported 27 in six months [ICE would] release [him] in the USA.” Id. at 3, 49. Petitioner alleges that 28 ICE requested that Petitioner provide his travel documents so that he could be deported to 1 Afghanistan. Id. at 49. Petitioner alleges he has no travel documents from Afghanistan. 2 Id. On August 2 and 7, 2018, Petitioner alleges he called the Afghan Consulate, which 3 advised him that it had processed his paperwork and sent it to ICE. Letter at 7. Petitioner 4 has not been advised, however, of the Consulate’s response or the outcome of those 5 proceedings. See id. at 3–8. Instead, Petitioner has received numerous notices of “Decision 6 to Continue Detention.” See id. 9; Pet. at 8–10. These notices acknowledge that ICE 7 conducted a review of Petitioner’s file record and determined that he would not be released 8 from custody. See Letter at 9; Pet. at 8–10. The most recent notice of “Decision to 9 Continue Detention” provided by Petitioner is dated August 15, 2018. Letter 9. 10 On July 3, 2018, Petitioner filed this Petition for Writ of Habeas Corpus. See 11 generally Pet. On August 19, 2019, the Court issued an Order to Show Cause to 12 Respondent, Chief Counsel for DHS/ICE, why the Petition should not be granted. ECF 13 No. 12. As of the date of this Order, Respondent has neglected to submit any response to 14 the Court. 15 ANALYSIS 16 I. Jurisdiction 17 As a preliminary matter, the Court must determine whether it has jurisdiction to hear 18 the merits of Petitioner’s claim. A federal district court has jurisdiction to hear habeas 19 claims under 28 U.S.C. § 2241. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). Jurisdiction 20 is proper “‘with respect to the application of [sections1221 through 1232] to an individual 21 alien against whom proceedings under such part have been initiated.’” Rodriguez v. Marin, 22 909 F.3d 252, 256 (9th Cir. 2018) (quoting 8 U.S.C. § 1252(f)(1)). Although there are 23 some statutory limitations barring judicial review of the Attorney General’s exercise of 24 discretion in removal proceedings, “habeas corpus proceedings remain available as a forum 25 for statutory and constitutional challenges to post-removal-period detention.” Id. at 688; 26 see also Jennings v. Rodriguez, 583 U.S. ___, 138 S. Ct. 830, 841 (2018) (holding that 8 27 U.S.C. § 1226(e) does not bar constitutional challenges to the “statutory framework” of the 28 / / / 1 Government’s detention authority). Accordingly, the Court may proceed to analyze the 2 merits of the Petition. 3 II. Prolonged Detention 4 Petitioner claims he has been subjected to prolonged detention without bond. Pet. 5 at 20. Any alien who has been convicted of a crime of domestic violence is subject to 6 removal from the United States. 8 U.S.C. § 1227(a)(2)(E)(i). Aliens who violate protective 7 orders also may be removed. 8 U.S.C. § 1227(a)(2)(E)(ii). “On a warrant issued by the 8 Attorney General, an alien may be arrested and detained pending a decision on whether the 9 alien is to be removed.” 8 U.S.C. § 1226(a). Typically, detained aliens are removed within 10 ninety days—the “removal period.” 8 U.S.C. § 1231(a)(1)(A). Criminal aliens—including 11 those convicted of domestic violence and violation of a protective order—“may be detained 12 beyond the removal period” at the discretion of the Attorney General. 8 U.S.C. 13 § 1231(a)(6). 14 However, “once removal is no longer reasonably foreseeable, continued detention is 15 no longer authorized.” Zadvydas, 533 U.S. at 699. The post-removal-period detention is 16 presumptively limited to six months. Id. at 701. “This . . . does not mean that every alien 17 not removed must be released after six months”; the presumptive six-month period is 18 rebuttable. Id. Following the six-month period, “once the alien provides good reason to 19 believe that there is no significant likelihood of removal in the reasonably foreseeable 20 future, the Government must respond with evidence sufficient to rebut that showing.” Id. 21 Detention beyond this period is “prolonged” and “requires that adequate procedural 22 safeguards be in place to protect against the erroneous deprivation of liberty.” Diouf v. 23 Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011). An alien subjected to prolonged 24 detention is “entitled to a bond hearing before an immigration judge (“IJ”) and is entitled 25 to be released from detention unless the government establishes that the alien poses a risk 26 of flight or a danger to the community.” Id. at 1092. 27 Here, Petitioner has been subjected to prolonged detainment. Petitioner was 28 convicted of crimes of domestic violence and violating a protective order, see Pet. at 1 20–48, and, therefore, may be removed from the United States. See 8 U.S.C. 2 §§ 1227(a)(2)(E)(i)–(ii). ICE took Petitioner into custody on October 21, 2016, and held 3 him pending removal proceedings, Pet. at 3, 20, as authorized by statute. See 8 U.S.C. 4 § 1226(a). On July 31, 2017, the IJ ordered Petitioner removed from the United States. 5 Pet. at 16. Petitioner filed this Petition for Writ of Habeas Corpus almost a year later. See 6 ECF No. 1. Thus, Petitioner was detained beyond the presumptively reasonable six-month 7 period at the time of filing. 8 Petitioner also demonstrates “good reason to believe that there is no significant 9 likelihood of removal in the reasonably foreseeable future.” See Zadvydas, 533 U.S. at 10 701. Petitioner states that he has never possessed travel documents from either Afghanistan 11 or Turkey dating back to his authorized entry into the United States via Turkey. Pet. at 49. 12 Petitioner claims that he has contacted the Consulate of Afghanistan to inquire into the 13 status of obtaining travel documents required to deport him to Afghanistan. Letter at 5. 14 Petitioner alleges the Consulate told him that it was “done with [his] case” and that it 15 referred him back to ICE and his deportation officer. Id. According to Petitioner, Turkey 16 also has denied him entry because he is neither a citizen nor legal resident of Turkey. Pet. 17 at 12. 18 The Government, in failing to respond to the Court’s Order to Show Cause, ECF No. 19 12, has not “respond[ed] with evidence sufficient to rebut” Petitioner’s showing, as 20 required. See Zadvydas, 533 U.S. at 701. From the records provided by Petitioner, it 21 appears the only review of Petitioner’s custody were ICE administrative reviews. See Pet. 22 at 8–10; Letter at 9. Although the notices of these reviews state that a “travel document 23 from the Government of Afghanistan is expected,” id., the Court is not satisfied that these 24 words constitute sufficient rebuttal evidence. Moreover, these notices evidence that 25 Petitioner has not received a bond hearing before a neutral arbiter; rather, it appears that 26 only ICE has reviewed the merits of Petitioner’s continued detention. Id. Accordingly, 27 the Court finds that ICE has held Petitioner in prolonged detention without adequate 28 procedural safeguards. 1 III. Required Bond Hearing 2 The Ninth Circuit has established that detained aliens have a right to bond hearings 3 after prolonged detention. See Diouf, 634 F.3d at 1091. Aliens held beyond the six-month 4 threshold “must be afforded the opportunity to challenge their continued detention in a 5 hearing before an [IJ].” Id. at 1092. Consequently, courts may order the Attorney 6 General—including DHS and ICE—to provide a bond hearing within a specified 7 timeframe. See Cortez v. Sessions, 318 F. Supp. 3d 1134, 1147 (N.D. Cal. 2018) (requiring 8 a bond hearing before an IJ within 15 days); Singh v. Barr, No. 18-CV-2741-GPC-MSB, 9 2019 WL 4168901, at *12 (S.D. Cal. 2019) (same); Trinidad v. Sessions, No. 3:17-cv- 10 06877-JD, 2018 WL 2010618, at *3 (N.D. Cal. 2018) (30 days); Crespo v. Baker, No. 11- 11 cv-3019-IEG (POR), 2012 WL 1132961, at *9 (S.D. Cal. 2012) (60 days). 12 The Court is compelled to address the Supreme Court’s decision in Jennings v. 13 Rodriguez, in which the Supreme Court overruled the Ninth Circuit’s interpretation of 14 section 1226(a) to read in a requirement of periodic bond hearings every six months for 15 aliens detained under that provision. 138 S. Ct. at 846–48. Notably, the Ninth Circuit had 16 linked its rationale for providing bond hearings to aliens detained under section 17 1231(a)(6)—like Petitioner—to its decisions regarding the rights of those detained under 18 section 1226(a). See Diouf, 634 F.3d 1084. The Supreme Court, however, noted that 19 section 1231(a)(6) “differs materially from” section 1226(a). Jennings, 138 S. Ct. at 843. 20 Unlike section 1226(a), “[s]ection 1231(a)(6) could plausibly be read to contain an 21 ‘implicit time limit.’” Hoang v. Tran, 333 F. Supp. 3d 984, 995 (C.D. Cal. 2018) (quoting 22 Jennings, 138 S. Ct. at 843–44). Consequently, district courts within the Ninth Circuit 23 have consistently held “that Diouf remains good law post-Jennings.” See id. 24 Here, Petitioner is entitled to a bond hearing before an IJ. Petitioner is detained 25 under section 1231(a)(6) as a removable alien. Accordingly, the standards articulated in 26 Diouf are appropriate. As noted above, Petitioner has been held in prolonged detention— 27 the unrebutted evidence before the Court shows Petitioner has been detained for more than 28 two years since the IJ’s initial removal decision. See Pet. at 16. The periodic decisions to 1 continue detention rendered by ICE are subject to challenge before an IJ. See Diouf, 634 2 F.3d at 1092. Accordingly, the Court finds that Petitioner is entitled to a bond hearing 3 before an IJ within thirty (30) days of the date on which this Order is electronically 4 docketed. 5 IV. Immigration Judge Assignment 6 At the bond hearing, the IJ must engage in a multi-layered analysis. First, the IJ 7 must determine whether removal of Petitioner is “reasonably foreseeable.” See Zadvydas, 8 533 U.S. at 699. If the IJ finds in the negative, detention is no longer authorized, and 9 Petitioner should be released. See id. If the IJ finds that Petitioner’s removal is “reasonably 10 foreseeable,” it must proceed to the second level of analysis and consider the merits of 11 granting him release on bond. 12 The IJ must determine whether the Government has demonstrated, by clear and 13 convincing evidence, that Petitioner presents a flight risk or a danger to the community. 14 See Calderon-Rodriguez v. Wilcox, 374 F. Supp. 1024, 1032–33 (W.D. Wash. 2019) (citing 15 Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011)) (additional citation omitted). In 16 Singh, the Ninth Circuit identified the nine factors to be analyzed by an IJ in a bond 17 determination: 18 (1) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the 19 alien’s family ties in the United States, and whether they may 20 entitle the alien to reside permanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record 21 of appearance in court; (6) the alien’s criminal record, including 22 the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s 23 history of immigration violations; (8) any attempts by the alien 24 to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States. 25 26 Singh, 638 F.3d at 1206 n.5 (citation omitted). Upon weighing these factors, if the IJ finds 27 that the Government has failed to show by clear and convincing evidence that Petitioner is 28 either a flight risk or a risk to the community, Petitioner should be granted bond. 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 3 ||Petitioner’s Petition for Writ of Habeas Corpus. Consequently, IT IS HEREBY 4 || ORDERED that: 5 1. Petitioner’s request for immediate release is DENIED; and 6 2. Respondents SHALL PROVIDE Petitioner a hearing within thirty (30) days 7 || of the electronic docketing of this Order before an immigration judge with the authority to 8 ||release Petitioner or grant him bond. 9 IT IS SO ORDERED. 10 11 ||Dated: October 16, 2019 . tt 12 pee Janis L. Sammartino 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28