Lopez-Cacerez v. McAleenan

Opinion

1 2 3 4 5 6 7 10 11 MIGUEL ANTONIO LOPEZ- Case No.: 19-cv-1952-AJB-AGS CACEREZ, 12 ORDER: Petitioner,

13 v. (1) GRANTING IN PART AND 14 DENYING IN PART PETITION FOR KEVIN McALEENAN, et al., WRIT OF HABEAS CORPUS (Doc. No. 15 Respondents. 1); AND 16 (2) GRANTING PETITIONER’S 17 MOTION FOR ORDER ON WRITTEN 18 SUBMISSIONS (Doc. No. 16)

19 Petitioner Miguel Antonio Lopez-Cacerez (“Petitioner”) appears before the Court 20 on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“the Petition”). 21 (Doc. No. 1.) Also before the Court is Petitioner’s motion for order on written submissions 22 or to set an evidentiary hearing. (Doc. No. 16.) Petitioner has been detained by Immigration 23 and Customs Enforcement (“ICE”) since approximately March 2019. (Id. at 5.) Petitioner 24 contends his detention has exceeded the statutory limits and seeks release under appropriate 25 conditions of supervision. The matter is fully briefed. (Doc. Nos. 10, 15.) For the reasons 26 set forth below, the Court GRANTS Petitioner’s motion for order on written submissions, 27 and GRANTS IN PART AND DENIES IN PART the Petition. 28 2 Petitioner alleges he is a native and citizen of Honduras. (Doc. No. 1 at 2.) He states 3 he grew up alone “on the streets of Tegucigalpa, Honduras,” does not know of any family 4 members in Honduras, and “does not have any Honduran identity documents.” (Doc. No. 5 15 at 8.) When Petitioner was 9 or 10 years old, he allegedly left Honduras alone on a truck 6 to Mexico. (Id.) Petitioner has lived in Mexico all his life since that time, except when he 7 has attempted to enter the United States. (Id.) 8 Petitioner was ordered deported from the United States for the first time on February 9 15, 2000. (Id.) Petitioner has been deported/removed to Honduras at least five times: in 10 2000, 2001, 2007, 2009, and 2011. (Doc. No. 10 at 2; Doc. No. 10-1 at 42, 50, 57, 64, 72, 11 80.) He has been convicted of illegal entry or re-entry into the United States four times: in 12 2001, 2009, 2010, and 2018. (Doc. No. 10-1 at 80.) Petitioner states each time he is 13 “removed to Honduras, he travels immediately to Mexico, leaving if he can on the same 14 day he arrives.” (Doc. No. 15 at 8.) Throughout Petitioner’s interactions with the United 15 States immigration system, Petitioner has provided various names, birth dates, and various 16 names of his mother and father. (Doc. No. 10 at 3.) 17 On November 24, 2018, Petitioner re-entered the United States, and was arrested on 18 criminal immigration charges. (Doc. No. 1 at 3.) Eventually, judgment was entered in the 19 criminal immigration case, Petitioner was ordered removed from the United States, and 20 Petitioner was taken into ICE custody. (Id.) Since Petitioner has been in immigration 21 custody, Respondents have been unable to obtain travel documents to effectuate 22 Petitioner’s removal. (Id.) Petitioner has repeatedly requested travel documents from the 23 Honduran consulate, but the consulate has refused to issue the documents or otherwise 24 allow Petitioner to be deported to Honduras. (Id.) The Honduran consulate’s refusal is 25 based on the inability to verify Petitioner’s identity. (Id.) According to Respondents, “the 26 matter is receiving special handling by the Honduran embassy in Washington, D.C., and 27 that the Honduran government’s Ministry of Foreign Affairs is conducting an investigation 28 for final analysis and resolution of the case.” (Id.) Petitioner has not been removed and has 1 remained in immigration custody since approximately March 2019. (Doc. No. 2 at 6.) 3 On October 8, 2019, Petitioner filed a Petition for Writ of Habeas Corpus under 28 4 U.S.C. § 2241, seeking an order directing Respondents to release him from custody under 5 the conditions of supervision as set forth in 8 U.S.C. § 1231(a)(3). (Doc. No. 1.) 6 Respondents filed their Return in opposition to the Petition on March 11, 2020. (Doc. No. 7 10.) Petitioner filed a Traverse on March 25, 2020. (Doc. No. 15.) On May 26, 2020, 8 Petitioner also filed a motion for an order on written submissions or to set an evidentiary 9 hearing. (Doc. No. 16.) This order follows. 11 Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge the extent of 12 the Attorney General’s authority to detain a removable alien under the statutes authorizing 13 detention. See Zadvydas v. Davis, 533 U.S. 678, 687–89 (2001); see also Demore v. Kim, 14 538 U.S. 510, 516–17 (2003). Although the REAL ID Act of 2005 divested district court 15 jurisdiction over habeas petitions challenging orders of removal, it does not divest the 16 district court of jurisdiction over challenges to detention. See Martinez v. Napolitano, 704 17 F.3d 620, 622 (9th Cir. 2012) (citation omitted). However, the scope of the federal courts’ 18 review is limited to constitutional claims and questions of law. See Singh v. Holder, 638 19 F.3d 1196, 1202 (9th Cir. 2011). Here, Petitioner challenges his continued detention and 20 not the validity of a final order of removal. Therefore, this Court has jurisdiction under 28 21 U.S.C. § 2241 to consider his Petition. 23 A. The Parties’ Contentions 24 At the center of this dispute, Petitioner argues he should be released under conditions 25 of supervision because he has been detained for over a year, and his detention exceeds the 26 six-month reasonable detention period to effectuate the removal of an alien announced in 27 Zadvydas v. Davis, 533 U.S. 678 (2001). (Doc. No. 1 at 5.) In opposition, Respondents 28 maintain that because Petitioner has failed to cooperate in the efforts to remove him, his 1 detention is justified as an exception. In reply, Petitioner maintains that this exception 2 should not apply because he has cooperated in his repatriation process, and there are 3 suspect circumstances surrounding Respondents’ argument that Petitioner has failed to 4 cooperate. (Doc. No. 15 at 15.) 5 B. Statutory Framework 6 Ordinarily, the Attorney General must remove an alien in custody within ninety days 7 from the issuance of a final removal order. See 8 U.S.C. § 1231(a)(1)(A)-(B). Two 8 “exceptions” are relevant to this case. First, § 1231(a)(6) provides for an extension to the 9 ninety-day rule: “[a]n alien ordered removed . . . who has been determined by the Attorney 10 General to be a risk to the community or unlikely to comply with the order of removal, 11 may be detained beyond the removal period . . . . ” 8 U.S.C. § 1231(a)(6). However, in 12 Zadvydas, the United States Supreme Court clarified this extension by establishing a three- 13 month discretionary detention period beyond the initial ninety days, during which detention 14 remains presumptively valid. See Zadvydas, 533 U.S. at 701. Thus, the post-removal- 15 period is presumptively limited to six months in order to prevent the Government from 16 detaining an alien indefinitely. Id. “This . . . does not mean that every alien not removed 17 must be released after six months” as the presumptive six-month period is rebuttable. Id. 18 Following the six-month period, “once the alien provides good reason to believe that there 19 is no significant likelihood of removal in the reasonably foreseeable future, the 20 Government must respond with evidence sufficient to rebut that showing.” Id. Also, 21 detention beyond the six-month period is “prolonged” and “requires that adequate 22 procedural safeguards be in place to protect against the erroneous deprivation of liberty.” 23 Diouf v. 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 A second “exception” to the ninety-day removal period is provided in 8 U.S.C. 28 § 1231(a)(1)(C), which states: 1 The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or 2 refuses to make timely application in good faith for travel or other documents 3 necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal. 4 8 U.S.C. § 1231(a)(1)(C). 5 The Ninth Circuit has held that the same six-month time limitation does not apply to 6 § 1231(a)(1)(C) because the provision does not present the same constitutional concerns as 7 raised by § 1231(a)(6)—the provision at issue in Zadvydas. The same risk of indefinite 8 detention does not exist when an alien is the cause of his own detention. Petitioners that 9 cause obstructions to the repatriation process have the “keys [to their freedom] in [their] 10 pocket” and could likely effectuate their removal by providing the information requested. 11 Pelich v. I.N.S., 329 F.3d 1057, 1060 (9th Cir. 2003) 12 C. Analysis 13 It is undisputed that Petitioner has been detained by Respondents for over a year. 14 Thus, with the above statutory framework in mind, the Court will address Respondents’ 15 contention that § 1231(a)(1)(C) applies to extend the permissible detention period. The 16 Court will also address Petitioner’s contention that his detention beyond the six-month 17 period is improper. 18 1. Whether § 1231(a)(1)(C) Applies 19 Respondents argue this case falls within the § 1231(a)(1)(C) exception, and is 20 controlled by Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003), because Petitioner’s long 21 history of providing false biographical information to the U.S. Border Patrol and ICE has 22 complicated current efforts to effectuate his repatriation. (Doc. No. 10 at 3–4.) Respondents 23 argue they have been diligently attempting to obtain travel documents to repatriate 24 Petitioner, but the Honduran government has been unable to verify that he is a Honduran 25 citizen. (Id. at 1.) Respondents explain the “Honduran government has stricter guidelines 26 now, and [Petitioner’s] extensive history of inconsistent biographical information has 27 complicated efforts to verify his identity. ICE is accordingly issuing him a March 11, 2020 28 1 decision letter, finding that he has failed to cooperate with efforts to repatriate him.” (Id. at 2 3.) In reply, Petitioner argues that contrary to Respondents’ representations, Petitioner has 3 been fully cooperating with the Government, and there is no significant likelihood of 4 removal in the reasonably foreseeable future. (Doc. No. 15 at 27.) 5 In Pelich, petitioner, a native of Poland, legally entered the United States as a 6 refugee, but was later convicted of felony embezzlement and detained by the Immigration 7 and Naturalization Service (“INS”) upon his release from prison. Pelich, 329 F.3d at 1058. 8 When the INS attempted to effect Pelich’s removal to Poland, the Polish consulate supplied 9 a passport application to enable the consulate to determine whether Pelich was eligible for 10 Polish travel documents. Id. Pelich repeatedly refused to complete the Polish passport 11 application because he claimed his father was German and therefore he was not a Polish 12 citizen. Id. The Ninth Circuit held that the exception to the ninety-day detention period set 13 forth in § 1231(a)(1)(C) applied, and Pelich could not “squeeze his case into the confines 14 of Zadvydas.” Id. at 1059. The court noted, “[u]nlike the aliens in Zadvydas, Pelich has the 15 ‘keys [to his freedom] in his pocket’ and could likely effectuate his removal by providing 16 the information requested by the INS.” Id. at 1060 (citation omitted). Thus, the Ninth 17 Circuit concluded that a petitioner who impedes removal efforts falls into the 18 § 1231(a)(1)(C) exception, and “has not met his burden of showing that there is no 19 significant likelihood of removal in the reasonably foreseeable future.” Id. 20 There are several reasons why this case is different from Pelich. First, whereas the 21 petitioner in Pelich actively refused to comply with the procedures to finalize his travel 22 documents, the same cannot be said here.1 Petitioner has made a good faith effort to 23

24 25 1 Respondents maintain that they have issued a “Notice of Failure to Comply” (“the Notice”) to Petitioner, furthering demonstrating that § 1231(a)(1)(C) is applicable. However, suspect circumstances surround 26 Respondents’ issuance of the Notice. (Doc. No. 15 at 17.) Most notably, the evidence does not show that noncooperation was the main reason provided to Petitioner for his continued detention. Instead, the record 27 reflects that Respondents did not level these accusations of noncooperation against Petitioner until one day after Respondents’ Return was due in this Court. As late as February 21, 2020, ICE’s internal 28 1 effectuate his removal, and his declaration filed in support of his Petition demonstrates that 2 he has been actively complying with repatriation process. These efforts include providing 3 ICE biographical information; complying with ICE’s efforts to take photographs and 4 fingerprints; participating in seven meetings with the Honduran consulate; filing written 5 requests to be moved closer to the Honduran embassy in Washington, D.C. and to have in- 6 person interviews with the Honduran consulate; and calling the ICE office in Washington, 7 D.C. dozens of times asking to be removed. (Doc. No. 15 at 9–10.) 8 Second, the record is insufficient to establish a causal link between Petitioner’s past 9 noncompliance and the Honduran government’s current refusal to accept Petitioner. Based 10 on the documentation submitted by Respondents, Petitioner’s identity cannot be verified 11 by the Honduran government because “they have a new process how [sic] to verify 12 citizenship” and there is no information about Petitioner’s identity, family, or residence in 13 Honduras. (Doc. No. 10-1 at 83.) Contrary to Respondents’ assertions, the evidence does 14 not suggest that the refusal to repatriate Petitioner on the part of the Honduran government 15 was a result of Petitioner’s alleged noncompliance in the past. 16 In any event, Respondents have not demonstrated non-compliance within the ninety- 17 day removal period. In Diouf v. Mukasey, the Ninth Circuit addressed how § 1231(a)(1)(C) 18 applies when a detainee fails to comply for some period of time but later starts complying 19 with efforts to remove him. See Mukasey, 542 F.3d at 1231. The Ninth Circuit held that in 20 such circumstances, the reasonable removal period ends ninety days after “the latest 21 evidence of [the detainee’s] obstruction.” Id. The Mukasey court also clarified that the 22 Government must produce “positive evidence” of noncompliance during this time. Here, 23 Respondents do not produce any positive evidence of Petitioner’s noncompliance within 24 25 inability to repatriate Petitioner was due to the Honduran government’s refusal to issue travel documents 26 to Petitioner. (Doc. No. 10-1 at 96.) Because of these suspect circumstances suggesting an ad hoc justification for the purpose of litigation, the Court accords the Notice little weight. See Seretse-Khama v. 27 Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) (declining to apply the exception in § 1231(a)(1)(C), reasoning “[i]t is only after petitioner sought relief in federal court that the INS developed an additional 28 1 the last ninety days. Instead, the Return points to statements Petitioner made between 1999 2 and 2018, the latest of which dates to November 24, 2018. (Doc. No. 15 at 22.) 3 Accordingly, the foregoing leads to the Court’s conclusion that § 1231(a)(1)(C) does 4 not apply to extend the removal period. There is ample evidence establishing Petitioner’s 5 compliance with efforts to remove him. 6 2. Whether Petitioner’s Detention Under § 1231(a)(6) Is Proper 7 Finding that the above exception does not apply, the Court next discusses whether 8 Petitioner is properly being held in custody pending the approval of his travel documents. 9 Petitioner claims he is being held in detention pursuant to § 1231(a)(6). (Doc. No. 1 at 5.) 10 As noted above, the Attorney General must remove an alien in custody within ninety days 11 from the issuance of a final removal order. 8 U.S.C. §§ 1231(a), 1231(a)(2). If the 12 noncitizen has not been removed during this period, § 1231(a)(6) authorizes continued 13 detention at the discretion of the Attorney General. 8 U.S.C. § 1231(a)(6). However, once 14 detention becomes prolonged and the detainee is not provided with adequate bond hearings, 15 serious due process concerns arise. See Diouf v. Napalitano, 634 F.3d 1081, 1091 (9th Cir. 16 2011). The Ninth Circuit has imposed a bright-line standard, defining “prolonged 17 detention” as that which exceeds six-months. Diouf, 634 F.3d at 1092 n.13 (“As a general 18 matter, detention is prolonged when it has lasted six months and is expected to continue 19 more than minimally beyond six months.”). Furthermore, after this six-month period, an 20 alien is eligible for conditional release upon demonstrating “good reason to believe that 21 there is no significant likelihood of removal in the reasonably foreseeable future.” 22 Zadvydas, 533 U.S. at 701. The burden then shifts to the Government to respond with 23 sufficient evidence to rebut that showing. Id. The six-month presumption “does not mean 24 that every alien not removed must be released after six months. To the contrary, an alien 25 may be held in confinement until it has been determined that there is no significant 26 likelihood of removal in the reasonably foreseeable future.” Id. 27 Here, Petitioner has been detained in Respondents’ custody well beyond the 28 presumptively reasonable 6-month period as Petitioner’s removal period began in March 1 2019 when he rescinded his request for an asylum interview. (Doc. No. 15 at 8.) Because 2 Petitioner’s detention exceeds the six-month period, Petitioner may demonstrate he is 3 eligible for conditional release if “good reason to believe that there is no significant 4 likelihood of removal in the reasonably foreseeable future.” Diouf, 634 F.3d at 1092. 5 Petitioner argues there is “good reason to believe that there is no significant 6 likelihood of removal in the reasonably foreseeable future” because “Honduras has refused 7 to issue travel documents” to repatriate Petitioner. (Doc. No. 15 at 28.) Petitioner explains 8 he has had seven phone calls with the Honduran consulate in order to cooperate in the 9 removal process, the most recent of which was on March 11, 2020. (Doc. No. 15 at 8.) 10 During each call, he and ICE have urged the consulate to issue travel documents so he can 11 be removed. (Id.) Each time, however, the Honduran consulate refuses to issue the travel 12 documents because “Mr. Lopez does not appear in the Honduran national registry” and 13 “Mr. Lopez has no family, friends, or contacts in Honduras.” (Id. at 9.) In the past, 14 Petitioner has been able to be removed to Honduras because the Honduran government 15 would “issue travel documents by asking the person a few questions to figure out if the 16 person was Honduran . . . But now, Honduras requires more proof of Honduran citizenship 17 before it will issue travel documents.” (Doc. No. 15-1 at ¶ 15.) Lastly, the Honduran Vice 18 Consul has also informed Petitioner that there is no time limit on any residual investigatory 19 efforts to establish his citizenship. (Id. at ¶ 21.) 20 Based on Petitioner’s showing of this bureaucratic stalemate, there is “good reason 21 to believe that there is no significant likelihood of removal in the reasonably foreseeable 22 future.” Diouf, 634 F.3d at 1092. Indeed, courts have noted that it is appropriate to grant 23 habeas relief “where there [is] no definitive answer from the target county after several 24 months as to whether it would issue travel papers for a detainee.” Nasr v. Larocca, No. CV 25 16-1673-VBF (E), 2016 WL 3710200, at *3 (C.D. Cal. June 1, 2016) (citing Nma v. Ridge, 26 286 F. Supp. 2d 469, 475 (E.D. Pa. 2003)). 27 With Petitioner meeting his burden in showing that there is “good reason to believe 28 that there is no significant likelihood of removal in the reasonably foreseeable future,” the 1 burden now shifts to Respondents to “respond with evidence sufficient to rebut that 2 showing.” Zadvydas, 533 U.S. at 701. In rebuttal, Respondents maintain, “ICE has been in 3 continuous contact with [Petitioner] and the Honduran consulate in an effort to ascertain 4 [Petitioner’s] true identity to obtain a travel document for his repatriation there. The 5 undersigned was informed today that the matter is receiving special handling by the 6 Honduran embassy in Washington, D.C., and that the Honduran government’s Ministry of 7 Foreign Affairs is conducting an investigation for final analysis and resolution of the case.” 8 (Doc. No. 10 at 3 (citations omitted).) Further, Respondents state, “ICE has obtained travel 9 documents from the Honduran government before, so it remains optimistic that it will be 10 able to do so again, especially given the special handling by the Honduran embassy and 11 the Honduran Ministry of Foreign Affairs.” (Id. at 4 (citations omitted).) 12 However, the Court remains skeptical that Petitioner’s removal is imminent, given 13 that Petitioner’s detention has exceeded the presumptively reasonable period by nearly ten 14 months, and the Honduran government has repeatedly denied Petitioner travel documents. 15 While Petitioner’s case is currently given special handling, “[g]eneral indications that U.S. 16 agencies have been in discussions with [target country] regarding repatriation efforts do 17 not indicate that those discussions will result in the timely removal of Petitioner, as it is 18 unclear whether those efforts will be successful.” Zhao v. Kelly, No. CV 17-777-BRO 19 (KES), 2017 WL 1591818, at *4 (C.D. Cal. Apr. 27, 2017). 20 D. Whether Petitioner Should Be Immediately Released 21 Because of these circumstances, there are “serious due process concerns” given 22 Petitioner’s prolonged detention with no reasonably foreseeable chance of removal to 23 Honduras. See Diouf, 634 F.3d at 1091. Under Ninth Circuit authority, individuals held 24 under 8 U.S.C. § 1231 are entitled to a bond hearing after six months of detention, where 25 the government bears the burden of justifying their continued imprisonment. See Diouf, 26 634 F.3d at 1082. Although the record reflects that ICE has conducted at least two custody 27 reviews and decided to continue detaining Petitioner due to high flight risk concerns, (Doc. 28 No. 10-1 at 78–94, 94), there is no indication that Petitioner has received a bond hearing 1 before a neutral immigration judge (“IJ”) to address the due process concerns related to his 2 prolonged detention. The Court notes that there are certainly concerns regarding 3 Petitioner’s high flight risk given his lengthy history of illegal entry and re-entry, in 4 addition to his record of providing false biographical information to the Government. Thus, 5 while Petitioner requests his release outright, the Court joins other courts in this circuit that 6 have favored “ordering a bond hearing before an IJ over ordering outright release.” Sied v. 7 Nielsen, No. 17-CV-06785-LB, 2018 WL 1876907, at *4 (N.D. Cal. Apr. 19, 2018); Cortez 8 v. Sessions, No. 18-cv-01014-DMR, 2018 WL 1510187, at *10 (N.D. Cal. Mar. 27, 2018) 9 (ordering bond hearing but not ordering immediate release); Bahena v. Aitken, No. 1:17- 10 cv-00145-JLT (HC), 2017 WL 2797802, at *1 (E.D. Cal. June 27, 2017) (report and 11 recommendation) (same). As articulated by the Court in Mansoor v. Figueroa, No. 3:17- 12 cv-06195-GPC (NLS), 2018 WL 840253 (S.D. Cal. Feb. 13, 2018), “IJs are a specialized 13 and experienced group within the Department of Justice already entrusted to make 14 determinations about the government’s legitimate interest in the further deprivation of a 15 noncitizen’s liberty. The power to order a bail hearing before an IJ is the type of practice 16 and workable remedy within the district court’s broad equitable powers.” Therefore, the 17 Court declines to order Petitioner’s immediate release, and instead orders that Petitioner 18 receive an individualized bond hearing before an IJ to release him on bond unless he is 19 deemed a flight risk or a danger to the community. 21 For the foregoing reasons, the Court GRANTS Petitioner’s motion for an order on 22 written submissions. (Doc. No. 16.) Additionally, the Petition is GRANTED IN PART 23 AND DENIED IN PART. The Court DENIES Petitioner’s request for immediate release. 24 However, because of the due process concerns, the Court ORDERS that Petitioner receive 25 an individualized bond hearing within 21 days before an IJ to release him on bond unless 26 he is deemed a flight risk or a danger to the community. That hearing must comply with 27 the requirements set forth in Diouf, including the requirement that the government bear the 28 burden of proving that Petitioner is a flight risk or a danger to the community to justify 1 || denial of bond. 2 4 || Dated: June 9, 2020 ,

6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12