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5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 JEFFERSONKING NWANEKE 9 ANYANWU, CASE NO. 2:24-CV-00964-LK-GJL 10 Petitioner, REPORT AND RECOMMENDATION 11 v. NOTING DATE: October 1, 2024 12 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT 13 FIELD OFFICE DIRECTOR, 14 Respondent. 15 Petitioner Jeffersonking Nwaneke Anyanwu is currently detained by U.S. Immigration 16 and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in 17 Tacoma, Washington. Proceeding pro se, Petitioner brings this 28 U.S.C. § 2241 habeas action 18 alleging his prolonged detention without a bond hearing violates the Due Process Clause of the 19 Fifth Amendment to the United States Constitution. Dkt. 6. Currently before the Court for 20 consideration is Respondent’s combined Motion to Dismiss the Petition and Return. Dkt. 8. 21 Having considered the parties’ submissions, the balance of the record, and the governing 22 law, the undersigned recommends that the Motion to Dismiss (Dkt. 8) be DENIED and that the 23 Petition (Dkt. 3) be GRANTED with respect to Petitioner’s request for a bond hearing. 24 1 I. BACKGROUND 2 A. Immigration Status and Proceedings 3 Petitioner is a native and citizen of Nigeria. Dkt. 9 at 2 (Chavez Declaration). Though he 4 was initially admitted to the United States as a conditional lawful permanent resident, this status
5 was terminated in 2020 after Petitioner neglected to petition for removal of the conditions on his 6 permanent residence. Id. 7 On April 28, 2022, Petitioner was federally convicted and sentenced to 63-months’ 8 incarceration following his guilty plea to numerous counts of conspiracy to commit money 9 laundering entered in United States v. Anyanwu, No. 2:19-cr-00190-CW-1 (D. Utah). As part of 10 his plea, Petitioner admitted to personally laundering over $1.1 million in fraudulent proceeds 11 and further admitted that the criminal enterprise, with which he was involved, laundered over 12 $6.6 million in fraudulent funds. Dkt. 10-2 at 4–5 (Statement in Advance of Guilty Plea). In 13 addition to a term of incarceration, Petitioner’s sentence included an order to pay $8,485,749.47 14 in restitution. Dkt. 9 at 2 (Chavez Declaration); Dkt. 10-3 at 7 (Judgment of Conviction).
15 A few months before Petitioner completed his federal sentence, the Department of 16 Homeland Security (“DHS”) issued a Notice to Appear charging Petitioner as removable under 17 18 U.S.C. § 1227(a)(1)(D)(i) (termination of conditional permanent residence), 18 U.S.C. § 18 1227(a)(2)(A)(i) (conviction for a crime of moral turpitude within 5 years of admission), and 18 19 U.S.C. § 1227(a)(2)(A)(iii) (conviction for a qualifying aggravated felony). Dkt. 9 at 2 (Chavez 20 Declaration); Dkt. 10-4 (Notice to Appear). Petitioner completed his federal sentence on July 12, 21 2023, and was transferred to ICE custody to begin removal proceedings. Dkt. 9 at 2 (Chavez 22 Declaration). 23
24 1 On January 26, 2024, an Immigration Judge (“IJ”) ordered Petitioner’s removal to 2 Nigeria. Dkt. 9 at 3 (Chavez Declaration); Dkt. 10-5 (Removal Order). Petitioner first attempted 3 to appeal the IJ’s decision in February 2024, but the Board of Immigration Appeals (“BIA”) 4 returned the matter to the IJ to provide a more complete record. Dkt. 9 at 3 (Chavez Declaration);
5 Dkt. 10-6 (BIA Decision). The IJ then issued a more thorough written decision ordering 6 Petitioner’s removal on April 26, 2024. Dkt. 10-7 (Written Decision). Shortly thereafter, 7 Petitioner filed a second timely appeal to the IJ’s removal decision. Dkt. 9 at 3 (Chavez 8 Declaration). The briefing deadline established by the BIA for all parties was June 20, 2024. Id. 9 The DHS filed its briefing three days late, and Petitioner sought leave to file an untimely brief on 10 July 22, 2024. Id. Based on the record currently before the Court, Petitioner’s second appeal to 11 the BIA and his request to file an untimely brief remain pending. Id. 12 B. Federal Habeas Petition 13 Petitioner initiated this action for writ of habeas corpus on June 28, 2024, naming United 14 States Immigration and Custody Enforcement Field Office Director (“Field Office Director”) as
15 Respondent. Dkts. 1, 1-1. After Petitioner corrected his initial filing deficiencies, the Court 16 entered an Order directing Respondent Field Office Director to show cause why the Court should 17 not grant habeas relief. Dkt. 7. In response, Respondent filed a combined Motion to Dismiss the 18 Petition and Return. Dkt. 8. Petitioner responded in opposition to the Motion to Dismiss, Dkt. 11, 19 and Respondent filed a Reply in support, Dkt. 12. This matter is now fully briefed and ripe for 20 consideration. 21 II. DISCUSSION 22 The sole ground for habeas relief raised in the Petition is that Petitioner’s continued 23 detention at NWIPC without an individualized bond hearing arguably violates constitutional
24 1 guarantees of due process. Dkt. 6; see also Dkt. 11. As relief, Petitioner requests that this Court 2 order his release from custody or, in the alternative, order that he be provided an individualized 3 bond hearing. Dkt. 6 at 1–2, 14. 4 Respondent, however, maintains that Petitioner is not entitled to either form of relief,
5 arguing that Petitioner’s detention comports with due process. Dkts. 8, 12. Respondent argues 6 further that, even if the Court were to conclude a bond hearing is necessary, it should depart from 7 prior decisions in this District and require that Petitioner carry the burden of proof at any such 8 hearing. Dkt. 8 at 10–11. 9 The Court disagrees with Respondent on both accounts and finds Petitioner’s length of 10 detention absent a hearing has become unreasonable such that due process requires the 11 Respondent to promptly provide Petitioner a bond hearing at which the Government bears the 12 burden of supporting continued detention without bond. 13 A. Petitioner’s Continued Detention Without a Bond Hearing is Unreasonable 14 This case involves mandatory detention under 8 U.S.C. § 1226(c) as Petitioner has been
15 deemed removable for committing an aggravated felony covered in 8 U.S.C. § 1227(a)(2)(A)(iii) 16 and as defined in §§ 1101(a)(43)(D) & (U). Dkt. 10-5 (Removal Order); Dkt. 10-7 (Written 17 Decision). It is undisputed that Petitioner’s mandatory detention pending removal and without an 18 individualized bond decision complies with the applicable statutory scheme. Dkt. 6 at 13; see 19 also Avilez v. Garland, 69 F.4th 525, 529–530 (9th Cir. 2023). As such, the relevant inquiry 20 before the Court is solely whether Petitioner’s term of mandatory pre-removal detention has 21 exceeded constitutional reasonableness such that a bond hearing is required by due process. 22 In Demore v. Kim, the Supreme Court rejected a due process challenge to mandatory 23 detention under § 1226(c), holding that “the Government may constitutionally detain deportable
24 1 [noncitizens] during the limited period necessary for their removal proceedings.” 538 U.S at 2 518–21, 526 (2003). Justice Kennedy’s concurring opinion, which created the majority, reasoned 3 that, beyond this limited period, due process may require “an individualized determination as to 4 [a noncitizen’s] risk of flight and dangerousness if the continued detention became unreasonable
5 or unjustified.” Id. at 532 (emphasis added). 6 Since Demore, the Ninth Circuit has expressed “grave doubts that any statute that allows 7 for arbitrary prolonged detention without any process is constitutional or that those who founded 8 our democracy precisely to protect against the government’s arbitrary deprivation of liberty 9 would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). Although the 10 due process analysis for prolonged detention under § 1226(c) remains an open question in the 11 Ninth Circuit,1 this Court and “essentially all district courts that have considered the issue agree 12 that prolonged mandatory detention pending removal proceedings, without a bond hearing, 13 ‘will—at some point—violate the right to due process.’” Martinez v. Clark, No. 2:18-cv-1669- 14 RAJ-MAT, 2019 WL 5968089, at *6 (W.D. Wash. May 23, 2019), report and recommendation
15 adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019) (quoting Sajous v. Decker, No. 18-cv- 16 2447-AJN, 2018 WL 2357266, at *8 (S.D.N.Y. May 23, 2018)) (collecting cases); Djelassi v. 17 ICE Field Office Director, 434 F. Supp. 3d 917, 923–24 (W.D. Wash. 2020) (granting habeas 18 petition and ordering bond hearing for noncitizen whose mandatory detention had become 19 unreasonably prolonged); see also Ashemuke v. ICE Field Office Director, No. 2:23-cv-1592- 20 RSL-MLP, 2024 WL 1683797, at *6 (W.D. Wash. Feb. 29, 2024), report and recommendation 21 22 1 See Avilez, 69 F.4th at 538 (declining to rule on whether due process required a bond hearing for a noncitizen detained under § 1226(c) and remanding to the district court for consideration of that claim); Martinez v. Clark, 36 23 F.4th 1219, 1223 (9th Cir. 2022), judgment vacated on other grounds, 144 S. Ct. 1339 (2024) (“Whether due process requires a bond hearing for [noncitizens] detained under § 1226(c) is not before us today. And we take no position on that question.”). 24 1 adopted, 2024 WL 1676681 (W.D. Wash. Apr. 18, 2024) (denying bond hearing where 2 mandatory detention was not yet unreasonable). 3 Where a § 1226(c) detainee has not received a prior bond hearing, this Court applies the 4 “multi-factor analysis that many other courts have relied upon to determine whether § 1226(c)
5 detention has become unreasonable.” Martinez, 2019 WL 5968089, at *6–7. This analysis, which 6 is referred to as the Martinez test, involves the following factors: 7 (1) the total length of detention to date; (2) the likely duration of future detention; (3) whether the detention will exceed the time the petitioner spent in prison for the 8 crime that made him [or her] removable; (4) the nature of the crimes the petitioner committed; (5) the conditions of detention; (6) delays in the removal proceedings 9 caused by the petitioner; (7) delays in the removal proceedings caused by the government; and (8) the likelihood that the removal proceedings will result in a 10 final order of removal. 11 Id. at *7. 12 As Petitioner has not received a prior bond hearing, the Court will now apply the 13 Martinez test to assess whether his ongoing detention has become unreasonable. 14 1. Length of Petitioner’s Detention to Date 15 The current length of Petitioner’s detention is the first and most important factor of the 16 analysis. See, e.g., Martinez, 2019 WL 5968089, at *9; Sajous, 2018 WL 2357266, at *10. The 17 longer a noncitizen’s mandatory detention continues beyond a “brief” period of detention, the 18 harder such detention is to justify without an individual bond determination. See Sajous, 2018 19 WL 2357266, at *10 (“[D]etention that has lasted longer than six months is more likely to be 20 ‘unreasonable,’ and thus contrary to due process, than detention of less than six months.”); 21 Ashemuke, 2024 WL 1683797, at *4 (concluding the petitioner’s ongoing detention of eleven 22 months—and seven months at the time his petition was filed—extended beyond a presumptively 23 valid brief period of detention); Martinez, 2019 WL 5968089, at *9 (finding nearly thirteen- 24 1 month detention weighed in favor of granting a bond hearing); Juarez v. Wolf, No. 20-cv-1660- 2 RJB-MLP, 2021 WL 2323436, at *5 (W.D. Wash. May 5, 2021), report and recommendation 3 adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021) (weighing petitioner’s fourteen-month 4 period of detention in his favor); Liban M.J. v. Sec’y of Dep’t of Homeland Sec., 367 F. Supp. 3d
5 959, 963–64 (D. Minn. 2019) (“Although there is no bright-line rule for what constitutes a 6 reasonable length of detention, Petitioner’s [twelve-month] detention has lasted beyond the 7 ‘brief’ period assumed in Demore.”); see also Demore, 538 U.S at 531 (upholding ongoing 8 detention of six months). 9 Here, Petitioner was detained for just under twelve months at the time he filed his 10 Petition, and his detention has now extended to approximately fourteen months. Because 11 Petitioner’s current period of detention is more than double the presumptively reasonable six- 12 month period discussed in Demore, this first factor weighs in favor of granting a bond hearing. 13 Seeking a different result, Respondent argues that the Ninth Circuit’s unpublished 14 decision in Fraihat v. Barr, 790 F. App’x 120 (9th Cir. 2020), demonstrates that length of
15 detention need not be included as part of the due process inquiry. Dkt. 8 at 6. While Respondent 16 is correct that the Ninth Circuit did not consider length of detention in Fraihat, they ignore 17 critical context for this decision: the Fraihat petitioner received two prior bond hearings and thus 18 “had a meaningful opportunity to be heard on the issue relevant to his continued detention.” 19 Fraihat, 790 F. App’x at 121–22. Although that petitioner was detained for another two years 20 without an additional bond hearing, the Ninth Circuit concluded he failed to show “that the 21 Constitution requires consideration of the length of his detention in this context.” Id. at 122 22 23
24 1 (emphasis added). As the Petitioner in this case has not received prior opportunities to be heard 2 on the propriety of his detention, Respondent’s reliance on Fraihat is misplaced.2 3 Respondent next argues that, because Petitioner extended his own detention by choosing 4 to challenge his Removal Order, the duration of his detention occurring after January 26, 2024,
5 should not be considered. Dkt. 8 at 7–8. 6 In support of this argument, Respondent relies on the Ninth Circuit’s decision in 7 Rodriguez Diaz v. Garland, 53 F.4th 1189, 1203 (9th Cir. 2022), which assessed whether 8 additional procedural protections were required for those detained under 8 U.S.C. § 1226(a). 9 Unlike Petitioner who is detained under § 1226(c), § 1226(a) detainees are “not without process” 10 during their detention and may obtain bond hearings before an IJ upon a showing of “materially 11 changed circumstances.” Rodriguez Diaz, 53 F.4th at 1207 (explaining this is distinguishable 12 from “the context of detentions for which no individualized bond hearings [have] taken place at all 13 because the statutes on their faces [do] not allow for them.”). As a result, the Ninth Circuit in 14 Rodriguez Diaz reasoned that it could not “simply count [the petitioner’s] months of detention
15 and leave it at that.” Id. at 1208. Examining length of detention through this more critical lens, 16 the Circuit Court concluded that the significance of the petitioner’s eighteen-month detention 17 was diminished because most of that period “arose from the fact that he chose to challenge” his 18 removal order through all available channels. Id. at 1207–08. 19 Respondent fails to persuade this Court that the more searching inquiry applicable to 20 those who have received prior bond hearings is required here. But, even if the Court were to limit 21 22 2 Notably, this Court generally applies the three-factor test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), where a detainee has received at least one prior bond hearing. See Ortuno-Perez v. ICE Field Off. Dir., No. 2:23-cv- 23 344-BHS-DWC, 2023 WL 5807305 (W.D. Wash. Aug. 1, 2023), report and recommendation adopted, 2023 WL 5802516 (W.D. Wash. Sept. 7, 2023). In those circumstances, length of detention plays a minor role in the due process analysis and is not “accorded overwhelming weight.” Ortuno-Perez, 2023 WL 5807305, at *5. 24 1 its consideration to the first seven months of Petitioner’s detention, the first factor would still tilt 2 in his favor as this period exceeds the six-month benchmark established in Demore. 3 2. Likely Duration of Future Detention 4 The Court next “considers how long the detention is likely to continue absent judicial
5 intervention; in other words, the anticipated duration of all removal proceedings including 6 administrative and judicial appeals.” Martinez, 2019 WL 5968089, at *9. 7 At this juncture, any estimate as to how long Petitioner’s detention will continue requires 8 a degree of speculation. Even so, the fact Petitioner is currently in the process of appealing his 9 removal order to the BIA provides some context. Assuming the BIA issues an unfavorable 10 removal decision and Petitioner seeks judicial review of that decision, his detention is likely to 11 continue for at least another twelve months. See U.S. Court of Appeals for the Ninth Circuit, 12 FREQUENTLY ASKED QUESTIONS, www.ca9.uscourts.gov/content/faq.php (last accessed Sept. 6, 13 2024; addressing anticipated timelines for civil appeal from notice of appeal until final decision). 14 Given the degree of speculation involved in this estimation, however, the second factor
15 weighs only slightly in favor of granting a bond hearing. See Ashemuke, 2024 WL 1683797, at 16 *4 (concluding uncertainty inherent to removal proceedings weighed neutrally upon relief); 17 Barraza v. ICE Field Office Director, No. 2:23-cv-1271-BHS-MLP, 2023 WL 9600946, at *6 18 (W.D. Wash. Dec. 8, 2023), report and recommendation adopted., 2024 WL 518945 (W.D. 19 Wash. Feb. 9, 2024) (acute possibility of continued detention pending active appeal weighs in 20 favor of granting a bond hearing). 21 Respondent disagrees, arguing this second factor should weigh neutrally upon relief. Dkt. 22 8 at 8. Respondent posits that “most detention” under § 1226(c) could be deemed unreasonable 23 simply because a petitioner has opted to appeal their removal order. Id.
24 1 The protections inherent in the multi-factor Martinez test adequately address 2 Respondent’s slippery slope argument. It is true that the second Martinez factor will, in most 3 cases, favor detainees who challenge their removal orders. But the opposite could be said of the 4 fourth Martinez factor (nature of the crime committed), which will largely weigh against
5 detainees who—like Petitioner—are deemed removable following convictions for an aggravated 6 felony. Nevertheless, these are just two in the constellation of factors comprising the Martinez 7 test, and prior applications of the test confirm that no single factor has an outsized effect on 8 whether detention is ultimately found reasonable. Compare Murillo-Chavez v. Garland, No. 22- 9 cv-303-LK-MLP, 2022 WL 16555994 (W.D. Wash. Aug. 30, 2022), report and recommendation 10 adopted, 2022 WL 16553176 (W.D. Wash. Oct. 31, 2022) (weighing first and second factor in 11 favor of petitioner but concluding nineteen-month detention was reasonable) with Pasillas v. ICE 12 Field Off. Dir., No. 21-cv-681-RAJ-MLP, 2021 WL 8084206 (W.D. Wash. Oct. 18, 2021), 13 report and recommendation adopted, 2022 WL 1127715 (W.D. Wash. Apr. 15, 2022) (weighing 14 fourth factor in favor of respondent but concluding seventeen-month detention was
15 unreasonable). 16 3. Criminal History 17 Under the third and fourth factors, the Court assesses the current length of detention 18 against the length of the detainee’s criminal sentence and the nature of his crime. Martinez, 2019 19 WL 5968089, at *9; Cabral v. Decker, 331 F. Supp. 3d 255, 262 (S.D.N.Y, 2018). These factors 20 are indicative of whether the detainee would be a danger to the community or a risk of flight 21 such that a bond hearing would be futile. See Cabral, 331 F. Supp. 3d at 262; Ashemuke, 2024 22 WL 1683797, at *5. 23
24 1 Here, Petitioner’s criminal conviction resulted in a 63-month custodial sentence, Dkt. 10- 2 3 at 7 (Judgment of Conviction), so his time in immigration detention has not yet exceeded his 3 criminal sentence. As for the nature of his crime, Petitioner admitted to personally laundering 4 over $1.1 million and participating in a conspiracy that laundered over $6.6 million in fraudulent
5 funds. Dkt. 10-2 at 4–5 (Statement in Advance of Guilty Plea). Given the severity of his crimes 6 and his substantial role in the conspiracy, Petitioner owes over $8 million in restitution. Dkt. 9 at 7 2 (Chavez Declaration); Dkt. 10-3 at 7 (Judgment of Conviction). 8 Considering the length of Petitioner’s sentence, the substantial conspiracy in which he 9 was a part, and the significant amount owed in restitution, the Court finds the third and fourth 10 factors weigh in favor of the Respondent. Compare Ashemuke, 2024 WL 1683797, at *5 11 (weighing this factor in favor of respondent where petitioner was ordered to pay restitution to 12 victims of online romance scams) with Murillo-Chavez, 2022 WL 16555994 at *6 (concluding 13 this factor significantly favors respondent where the petitioner was convicted of “multiple crimes 14 against children as well as a weapons offense”).
15 4. Conditions of Detention 16 Under the fifth factor, the Court considers the conditions of Petitioner’s current detention. 17 Martinez, 2019 WL 5968089, at *9. “The more that the conditions under which the [noncitizen] 18 is being held resemble penal confinement, the stronger [the] argument that he is entitled to a 19 bond hearing.” Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 860 (D. Minn. 2019) (citation and 20 internal quotations omitted). 21 The record before the Court contains some evidence regarding the conditions of 22 Petitioner’s detention at NWIPC. The Petition, which is signed under penalty of perjury, includes 23 descriptions of penal-like conditions at NWIPC that appear to be based on Petitioner’s personal
24 1 knowledge. Dkt. 6 at 6–8. But because these descriptions are interspersed between generalized 2 statements and legal reasoning, it is difficult for the Court to discern what is argument and what 3 may be accorded evidentiary value. Even so, Petitioner also submitted a copy of the NWIPC 4 Detainee Handbook, which reinforces his allegations that restrictions placed on his movements
5 and conduct at NWIPC are similar to those restrictions imposed in penal institutions. See, e.g., 6 Dkt. 6-1 at 24–25. 7 Based on the record before it, the Court finds this factor favors Petitioner. Juarez, 2021 8 WL 2323436, at *6 (concluding fifth factor favored the petitioner given allegations regarding 9 “restrictions on privacy and autonomy” and “a focus on punitive discipline” at NWIPC). 10 5. Delays in Removal Proceedings 11 Under the sixth and seventh factors, the Court considers “the nature and extent of any 12 delays in the removal proceedings caused by petitioner and the government, respectively.” 13 Martinez, 2019 WL 5968089, at *10. A noncitizen is entitled to raise legitimate defenses to his 14 removal, “and such challenges to his removal cannot undermine his claim that detention has
15 become unreasonable.” Liban M.J., 367 F. Supp. 3d at 965 (citing Hernandez v. Decker, 2018 16 WL 3579108, at *9 (S.D.N.Y. July 25, 2018)). Thus, this factor only weighs against a petitioner 17 when he “has ‘substantially prolonged his stay by abusing the processes provided.’” but not 18 when he “simply made use of the statutorily permitted appeals process.” Hechavarria v. 19 Sessions, 891 F.3d 49, 56 n.6 (2d Cir. 2018) (quoting Nken v. Holder, 556 U.S. 418, 436 (2009)). 20 On the other hand, unreasonable delays caused by immigration courts or government officials 21 weigh against a respondent. Sajous, 2018 WL 2357266, at *11. 22 23
24 1 Here, there is no evidence of dilatory or bad faith conduct causing an undue delay in 2 Petitioner’s ongoing removal proceedings. Therefore, the Court assesses the sixth and seventh 3 factor as weighing neutrally on relief. 4 Neither the Petitioner nor the Respondent agree with this assessment. Respondent argues
5 that Petitioner’s failure to submit timely briefing to the BIA constitutes undue delay, Dkt. 8 at 9, 6 whereas Petitioner argues the government has dragged its heels throughout his removal 7 proceedings, Dkt. 6 at 10–11. 8 As an initial matter, absent evidence of bad faith or intent to delay, Petitioner’s failure to 9 submit a timely brief is not the sort of conduct considered on this factor. Moreover, if garden- 10 variety untimeliness established the benchmark for undue delay, then the Court would have to 11 consider the other delays present in the record, which effectively neutralize any delay caused by 12 Petitioner. By way of illustration, the DHS’ tardy briefing before the BIA would qualify as 13 undue delay weighing against Respondent. Dkt. 9 at 3 (Chavez Declaration). Also, the IJ’s initial 14 failure to provide a complete record for the BIA’s review, which delayed removal proceedings
15 for several months, would similarly qualify and be held against Respondent. Dkt. 9 at 3 (Chavez 16 Declaration); Dkt. 10-6 (BIA Decision). 17 In the Court’s view, however, these oversights do not rise to the level of bad faith or 18 intentional delay that should weigh against either party. 19 6. Likelihood Removal Proceedings Will Result in a Final Order of Removal 20 Finally, the Court considers “the likelihood that the removal proceedings will result in a 21 final order of removal.” Liban M.J., 367 F. Supp. 3d at 965. “In other words, the Court considers 22 whether the noncitizen has asserted any defenses to removal.” Martinez, 2019 WL 5968089, at 23 *10 (citing Sajous, 2018 WL 2357266, at *11). “Where a noncitizen has not asserted any
24 1 grounds for relief from removal, presumably the noncitizen will be removed from the United 2 States, and continued detention will at least marginally serve the purpose of detention, namely 3 assuring the noncitizen is removed as ordered.” Id. at *10. “But where a noncitizen has asserted a 4 good faith challenge to removal, the categorical nature of the detention will become increasingly
5 unreasonable.” Id. (quotations omitted). 6 Given the current posture of Petitioner’s removal proceedings, there is simply not enough 7 information available to predict whether Petitioner’s removal proceedings will result in a final 8 order of removal. In the absence of sufficient information to assess the likely success of any 9 challenge to Petitioner’s removal, the Court finds this final factor is neutral. 10 7. Weighing the Factors 11 As discussed above, three factors weigh in favor of Petitioner, including the first and 12 most important factor. Next, two of the eight favors weigh in favor of the Respondent, and the 13 remaining three factors are neutral. All considered, the undersigned finds that the factors in 14 Petitioner’s favor (i.e., the current and future length of his detention and the conditions of his
15 confinement) outweigh those favoring Respondent (i.e., factors relating to the underlying 16 criminal conviction and sentence). 17 Thus, the Court concludes Petitioner’s detention has become unreasonable such that an 18 individualized bond hearing is required to comport with due process. 19 B. Respondent Should Bear the Burden of Supporting Continued Detention 20 Having concluded that Petitioner is entitled to a bond hearing, the Court must next 21 consider who shall bear the burden of proof at that hearing. 22 When a § 1226(c) detainee is subject to unreasonably prolonged detention, this Court has 23 previously required that a bond hearing be conducted in accordance with the Ninth Circuit’s
24 1 decision in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). See, e.g., Juarez v. Wolf, No. 20-cv- 2 1660-RJB-MLP, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Pasillas v. ICE Field Off. Dir., 3 No. 21-cv-681-RAJ-MLP, 2022 WL 1127715 (W.D. Wash. Apr. 15, 2022). 4 In Singh, the Ninth Circuit held that § 1226(c) detainees subject to prolonged detention
5 are entitled to a bond hearing before an IJ wherein the government bears the burden of proving 6 the detainee is a danger or flight risk by clear and convincing evidence. 638 F.3d at 1203–04. 7 This heightened burden reflects the significant liberty interest at stake when a person is detained 8 for an extended period without a bond hearing. Id. (citing Addington v. Texas, 441 U.S. 418, 427 9 (1979)).3 10 In Jennings v. Rodriguez, the Supreme Court reversed Singh and other Circuit decisions 11 that interpreted § 1226(c) and similar statutory provisions to include implicit procedural 12 protections. 583 U.S. 281 (2018). Following Jennings, however, this Court and other district 13 courts continue to apply the reasoning in Singh to conclude that § 1226(c) detainees are entitled 14 to bond hearings as a matter of constitutional due process rather than implicit statutory
15 guarantees. See Juarez, 2021 WL 2323436, at * 8 (W.D. Wash. May 5, 2021) (collecting cases); 16 Gonzalez v. Bonnar, No. 18-CV-05321-JSC, 2019 WL 330906, at *7 (N.D. Cal. Jan. 25, 2019) 17 (“[N]early all the courts that have granted habeas petitions in 1226(c) cases post-Jennings have 18 held that the government bears the burden of proof by clear and convincing evidence.”) (citation 19 omitted). 20 21
22 3 It is important to note that the text of § 1226(c) does not explicitly require a bond hearing for those subject to 23 mandatory detention. Thus, in assessing the rights of § 1226(c) detainees subject to prolonged detention, the Ninth Circuit interpreted the statute to avoid what it considered a significant constitutional issue. See Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008). 24 1 Relying on Jennings and the Ninth Circuit’s decision in Rodriguez Diaz, Respondent 2 argues that Petitioner should bear the burden of proof at any court-ordered bond hearing. Dkt. 8 3 at 10–11 (citing Jennings, 583 U.S. 281 and Rodriguez Diaz, 53 F.4th 1189). The Court does not 4 agree.
5 Decided post-Jennings, Rodriquez Diaz concerned what additional procedural protections 6 may be owed to individuals detained under § 1226(a) as a matter of constitutional law. 53 F.4th 7 at 1202. As discussed above, Rodriguez Diaz found that “existing agency procedures” provided 8 sufficient protections for § 1226(a) detainees; as a result, the Ninth Circuit declined to extend the 9 procedural protections addressed in Singh to § 1226(a) cases. Id. at 1202, 1209–10. Nevertheless, 10 it reached no decision on Singh’s continued applicability to § 1226(c) detainees as a matter of 11 constitutional law. Id. 12 Thus, the applicability of Singh to the constitutional rights of § 1226(c) detainees remains 13 an open question in the Ninth Circuit. Even so, the Circuit Court has signaled that the clear and 14 convincing evidence standard remains good law for immigration detainees subject to prolonged
15 detention. In Martinez v. Clark, the Ninth Circuit held that the BIA applied the correct legal 16 standard when it required the government to prove by clear and convincing evidence that a 17 noncitizen detained under § 1226(c) was a danger to the community. 36 F.4th at 1230–31. The 18 Martinez Court also looked to its reasoning in Singh as establishing “the high-water mark of 19 procedural protections required by due process.” Id. at 1231. Similarly, in Aleman Gonzalez v. 20 Barr, the Ninth Circuit affirmed a district court decision requiring the government to bear a 21 heightened burden of proof at bond hearing for a § 1231(a)(6) detainee as a matter of due 22 process. 955 F.3d 762, 766 (9th Cir. 2020), rev’d on other grounds sub nom. Garland v. Aleman 23 Gonzalez, 596 U.S. 543 (2022).
24 1 Finally, as noted above, this Court’s prior application of Singh to § 1226(c) cases aligns 2 with other district courts within the Ninth Circuit. See, e.g., Salesh P. v. Kaiser, No. 22-cv- 3 01785-BLF, 2022 WL 17082375 (N.D. Cal. Nov. 17, 2022); Singh v. Garland, No. 1:23-cv- 4 01043-EPG-HC, 2023 WL 5836048 (E.D. Cal. Sept. 8, 2023); Durand v. Allen, No. 3:23-cv-
5 00279-RBM-BGS, 2024 WL 711607 (S.D. Cal. Feb. 21, 2024). 6 Therefore, the Court is persuaded that under the circumstances of this case, Petitioner is 7 entitled to an initial bond hearing where the government must prove by clear and convincing 8 evidence that Petitioner is a flight risk or danger to the community. Respondent’s arguments to 9 the contrary are unavailing. 10 C. The NWIPC Warden is the Proper Respondent in this Action 11 One final matter requires attention before the Court may grant relief: Petitioner has not 12 named the proper respondent. After this Court directed Respondent Field Office Director to file a 13 Return, the Ninth Circuit issued a decision making clear that the proper respondent for an 14 immigration habeas petition is the individual directly in charge of the detention facility where the
15 petitioner is housed, not a remote supervisory official like a field office director. Doe v. Garland, 16 109 F.4th 1188, 1194–97 (9th Cir. 2024) (reversing grant of habeas relief aimed at the field 17 office director overseeing the petitioner’s detention facility). Accordingly, the undersigned 18 recommends that Respondent Field Office Director be required to SHOW CAUSE why the 19 Warden of the Northwest ICE Processing Center should not be SUBSTITUTED as the proper 20 respondent in this action. 21 III. CONCLUSION 22 As set forth above, the undersigned recommends that Respondent’s Motion to Dismiss 23 (Dkt. 8) be DENIED and that Petitioner’s federal habeas Petition (Dkt. 6) be GRANTED. It is
24 1 further recommended that Respondent Field Office Director be required to SHOW CAUSE why 2 the Warden of the Northwest ICE Processing Center should not be SUBSTITUTED as the 3 proper respondent in this action. Once the proper respondent is present in this action, Petitioner 4 should be GRANTED a bond hearing that comports with the procedural requirements outlined
5 in Singh within 30 days of an Order on this Report and Recommendation. 6 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil 7 Procedure, the parties shall have fourteen (14) days from service of this report to file written 8 objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those 9 objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), 10 and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 11 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 12 omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the 13 matter for consideration on October 1, 2024, as noted in the caption. 14 Dated this 17th day of September, 2024.
15 A 16 17 Grady J. Leupold United States Magistrate Judge 18
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