2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
5 JOSE ALBERTO PEREZ-CORTEZ, Case No. 2:21-cv-00982-CDS-DJA
6 Petitioner, ORDER
v. 7
8 ALEJANDRO MAYORKAS, et al., 9 Respondents.
10 11 In his 28 U.S.C. § 2241 petition for writ of habeas corpus, Jose Alberto Perez-Cortez 12 seeks immediate release from custody or a detention/bond hearing pending the execution of his 13 final order of removal (ECF No. 1). Respondents have answered the petition, and Perez-Cortez 14 replied (ECF Nos. 10, 11). The court agrees with respondents that Perez-Cortez is lawfully 15 detained and fails to demonstrate a constitutional violation, thus, the petition is denied. 16 I. Background 17 Perez-Cortez is a native and citizen of Mexico (ECF No. 1, p. 5). He entered the United 18 States without inspection or permission. He became a Lawful Permanent Resident on 19 September 20, 2005. In January 2015, Perez-Cortez pleaded guilty to possession of controlled 20 substance, marijuana over one ounce. Id. at 7-10. See also Declaration of Kerriann Quihuis 21 (“Quihuis Decl.) attached as exhibit A to respondents’ answer, ECF No. 10. Perez-Cortez was 22 placed on probation not to exceed four years. In December 2017, while on probation, he was 23 charged with robbery with a deadly weapon and burglary while in possession of a deadly 24 weapon after he took two cases of beer from a 7-Eleven convenience store without paying. He 25 pleaded guilty to burglary and was sentenced to a term of 12 to 48 months in prison. His 26 probation was revoked in the earlier case and that sentence was modified to a term of 12 to 48 27 months; the sentences to be served concurrently. 28 2 into the custody of Immigration and Customs Enforcement (ICE) on December 30, 2019 (ECF 3 No. 1, pp. 10-12; Quihuis Decl.). A notice to appear was issued, which commenced removal 4 proceedings. The Department of Homeland Security (DHS) charged Perez-Cortez with 5 removability under 8 U.S.C. § 1227(a)(2)(B), as a noncitizen who, at any time after admission, 6 was convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a 7 State, the United States, or a foreign country relating to a controlled substance (as defined by 21 8 U.S.C. § 802), other than a single offense involving possession of less than thirty grams of 9 marijuana for one’s own use. Perez-Cortez applied for cancellation of removal for certain 10 permanent residents, asylum, withholding of removal, and relief under the Convention Against 11 Torture. The Immigration Judge (IJ) denied his applications and ordered him removed to 12 Mexico. Perez-Cortez appealed. The Board of Immigration Appeals (BIA) affirmed the IJ’s 13 decision on March 12, 2021; the order of removal became final and executable on that date. 8 14 U.S.C. § 1101(a)(47)(B). On April 5, 2021, Perez-Cortez filed a pro se petition for review with the 15 Ninth Circuit Court of Appeals, which is currently pending. See Perez-Cortez v. Garland, No. 21- 16 70806, exhibit B to respondents’ answer, ECF No. 10. Perez-Cortez filed two motions for stay of 17 removal; the Ninth Circuit entered automatic stays of removal on June 7, and June 11, 2021. ICE 18 had arranged to remove Perez-Cortez to Mexico on a chartered flight but canceled the plans 19 when the stay was entered. Quihuis Decl. ¶ 17. 20 II. Legal Framework 21 Federal courts have jurisdiction to hear writs of habeas corpus when a petitioner is “in 22 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 23 2241(c)(3). That jurisdiction extends to noncitizens in immigration detention. See Demore v. Kim, 24 538 U.S. 510, 517 (2003); Zadvydas v. Davis, 533 U.S. 678, 688 (2001). The statutory authority to 25 detain a noncitizen varies depending on the underlying charge of removability and whether he is 26 subject to a final order of removal. Prieto-Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008). 8 27 U.S.C. § 1226(c) governs the detention and removal of noncitizens who are removable because of 28 a conviction for a serious criminal offense, including crimes of moral turpitude, aggravated 2 or terrorist activities. Section 1226(c) mandates that the Attorney General “shall take into 3 custody any alien who” has committed an enumerated crime or act of terrorism “without regard 4 to whether the alien is released on parole, supervised release, or probation . . . .” The Supreme 5 Court has explained that detention of a noncitizen pursuant to § 1226(c) “must continue 6 ‘pending a decision on whether [he] is to be removed from the United States.’” Jennings v. 7 Rodriguez, 138 S.Ct. 830, 846 (2018) (quoting 8 U.S.C. § 1226(a)). The only statutory exception to 8 detention under section 1226(c) is if the Attorney General decides that release is “necessary for 9 witness-protection purposes and that the alien will not pose a danger or a flight risk.” Id. 10 A noncitizen detained under section 1226(c) is permitted to challenge the basis for his 11 detention before an IJ in a “Joseph hearing.” 8 C.F.R. § 1003.19(h)(2)(ii); Matter of Joseph, 22 I. & N. 12 Dec. 799 (BIA 1999). At a Joseph hearing, a noncitizen “may avoid mandatory detention by 13 demonstrating that he is not an alien, was not convicted of [a] predicate crime, or that the 14 government is otherwise substantially unlikely to establish that he is in fact subject to 15 mandatory detention.” Jennings, 138 S.Ct. at 838 n.1 (quoting Demore, 538 U.S. at 514 n.3). In cases 16 such as Perez-Cortez’s involving the removal of noncitizens who were admitted into the United 17 States, DHS bears the burden of establishing removability “by clear and convincing evidence[.]” 18 8 U.S.C. § 1229a(c)(3)(A). 19 Once a decision has been made to remove a noncitizen from the United States, a separate 20 statutory provision specifies that noncitizens must be detained during their “removal period.” 8 21 U.S.C. § 1231(a)(2). See Prieto-Romero, 534 F.3d at 1059. Once the ninety-day removal period ends, 22 the Attorney General still retains authority to detain noncitizens with administratively final 23 orders of removal but may release a noncitizen under conditions of supervision. 8 U.S.C. § 24 1231(a)(3), (a)(6); see Zadvydas, 533 U.S. at 688-689. The Ninth Circuit has held that the authority 25 to detain a noncitizen under 8 U.S.C. § 1231
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2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
5 JOSE ALBERTO PEREZ-CORTEZ, Case No. 2:21-cv-00982-CDS-DJA
6 Petitioner, ORDER
v. 7
8 ALEJANDRO MAYORKAS, et al., 9 Respondents.
10 11 In his 28 U.S.C. § 2241 petition for writ of habeas corpus, Jose Alberto Perez-Cortez 12 seeks immediate release from custody or a detention/bond hearing pending the execution of his 13 final order of removal (ECF No. 1). Respondents have answered the petition, and Perez-Cortez 14 replied (ECF Nos. 10, 11). The court agrees with respondents that Perez-Cortez is lawfully 15 detained and fails to demonstrate a constitutional violation, thus, the petition is denied. 16 I. Background 17 Perez-Cortez is a native and citizen of Mexico (ECF No. 1, p. 5). He entered the United 18 States without inspection or permission. He became a Lawful Permanent Resident on 19 September 20, 2005. In January 2015, Perez-Cortez pleaded guilty to possession of controlled 20 substance, marijuana over one ounce. Id. at 7-10. See also Declaration of Kerriann Quihuis 21 (“Quihuis Decl.) attached as exhibit A to respondents’ answer, ECF No. 10. Perez-Cortez was 22 placed on probation not to exceed four years. In December 2017, while on probation, he was 23 charged with robbery with a deadly weapon and burglary while in possession of a deadly 24 weapon after he took two cases of beer from a 7-Eleven convenience store without paying. He 25 pleaded guilty to burglary and was sentenced to a term of 12 to 48 months in prison. His 26 probation was revoked in the earlier case and that sentence was modified to a term of 12 to 48 27 months; the sentences to be served concurrently. 28 2 into the custody of Immigration and Customs Enforcement (ICE) on December 30, 2019 (ECF 3 No. 1, pp. 10-12; Quihuis Decl.). A notice to appear was issued, which commenced removal 4 proceedings. The Department of Homeland Security (DHS) charged Perez-Cortez with 5 removability under 8 U.S.C. § 1227(a)(2)(B), as a noncitizen who, at any time after admission, 6 was convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a 7 State, the United States, or a foreign country relating to a controlled substance (as defined by 21 8 U.S.C. § 802), other than a single offense involving possession of less than thirty grams of 9 marijuana for one’s own use. Perez-Cortez applied for cancellation of removal for certain 10 permanent residents, asylum, withholding of removal, and relief under the Convention Against 11 Torture. The Immigration Judge (IJ) denied his applications and ordered him removed to 12 Mexico. Perez-Cortez appealed. The Board of Immigration Appeals (BIA) affirmed the IJ’s 13 decision on March 12, 2021; the order of removal became final and executable on that date. 8 14 U.S.C. § 1101(a)(47)(B). On April 5, 2021, Perez-Cortez filed a pro se petition for review with the 15 Ninth Circuit Court of Appeals, which is currently pending. See Perez-Cortez v. Garland, No. 21- 16 70806, exhibit B to respondents’ answer, ECF No. 10. Perez-Cortez filed two motions for stay of 17 removal; the Ninth Circuit entered automatic stays of removal on June 7, and June 11, 2021. ICE 18 had arranged to remove Perez-Cortez to Mexico on a chartered flight but canceled the plans 19 when the stay was entered. Quihuis Decl. ¶ 17. 20 II. Legal Framework 21 Federal courts have jurisdiction to hear writs of habeas corpus when a petitioner is “in 22 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 23 2241(c)(3). That jurisdiction extends to noncitizens in immigration detention. See Demore v. Kim, 24 538 U.S. 510, 517 (2003); Zadvydas v. Davis, 533 U.S. 678, 688 (2001). The statutory authority to 25 detain a noncitizen varies depending on the underlying charge of removability and whether he is 26 subject to a final order of removal. Prieto-Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008). 8 27 U.S.C. § 1226(c) governs the detention and removal of noncitizens who are removable because of 28 a conviction for a serious criminal offense, including crimes of moral turpitude, aggravated 2 or terrorist activities. Section 1226(c) mandates that the Attorney General “shall take into 3 custody any alien who” has committed an enumerated crime or act of terrorism “without regard 4 to whether the alien is released on parole, supervised release, or probation . . . .” The Supreme 5 Court has explained that detention of a noncitizen pursuant to § 1226(c) “must continue 6 ‘pending a decision on whether [he] is to be removed from the United States.’” Jennings v. 7 Rodriguez, 138 S.Ct. 830, 846 (2018) (quoting 8 U.S.C. § 1226(a)). The only statutory exception to 8 detention under section 1226(c) is if the Attorney General decides that release is “necessary for 9 witness-protection purposes and that the alien will not pose a danger or a flight risk.” Id. 10 A noncitizen detained under section 1226(c) is permitted to challenge the basis for his 11 detention before an IJ in a “Joseph hearing.” 8 C.F.R. § 1003.19(h)(2)(ii); Matter of Joseph, 22 I. & N. 12 Dec. 799 (BIA 1999). At a Joseph hearing, a noncitizen “may avoid mandatory detention by 13 demonstrating that he is not an alien, was not convicted of [a] predicate crime, or that the 14 government is otherwise substantially unlikely to establish that he is in fact subject to 15 mandatory detention.” Jennings, 138 S.Ct. at 838 n.1 (quoting Demore, 538 U.S. at 514 n.3). In cases 16 such as Perez-Cortez’s involving the removal of noncitizens who were admitted into the United 17 States, DHS bears the burden of establishing removability “by clear and convincing evidence[.]” 18 8 U.S.C. § 1229a(c)(3)(A). 19 Once a decision has been made to remove a noncitizen from the United States, a separate 20 statutory provision specifies that noncitizens must be detained during their “removal period.” 8 21 U.S.C. § 1231(a)(2). See Prieto-Romero, 534 F.3d at 1059. Once the ninety-day removal period ends, 22 the Attorney General still retains authority to detain noncitizens with administratively final 23 orders of removal but may release a noncitizen under conditions of supervision. 8 U.S.C. § 24 1231(a)(3), (a)(6); see Zadvydas, 533 U.S. at 688-689. The Ninth Circuit has held that the authority 25 to detain a noncitizen under 8 U.S.C. § 1231(a)(2) does not begin “if an alien files a timely 26 petition for review and requests a stay” until the court of appeals: “(1) denies the motion for a 27 stay or (2) grants the motion and finally denies the petition for review.” Prieto-Romero, 534 F.3d 28 at 1059 n.5; see 8 U.S.C. 1231(a)(1)(B) (establishing when the “removal period” commences). 2 review, then he remains subject to the detention authority under 8 U.S.C. § 1226. 3 Prior to Jennings v. Rodriguez, the Ninth Circuit held that authorization for detention under 4 8 U.S.C. § 1226(c), INA § 236(c) ends when the BIA affirms the removal order. Casas-Castrillon v. 5 DHS, 535 F.3d 942 (9th Cir. 2008). “Thereafter, the Attorney General’s detention authority rests 6 with [the general discretionary authority to detain under § 1226(a), INA § 236(a)] until the alien 7 enters his ‘removal period,’ which occurs only after we have rejected his final petition for review 8 or his time to seek such review expires.” Id. at 948. The Ninth Circuit further concluded that 9 “the government may not detain a legal permanent resident . . . for a prolonged period without 10 providing him a neutral forum in which to contest the necessity of his continued detention.” Id. 11 at 949 (establishing so-called Casas hearings). In a Casas hearing, DHS bears the burden of 12 establishing by clear and convincing evidence that the noncitizen is a flight risk or a danger to 13 the community. See Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011). The Supreme Court’s 14 decision in Jennings abrogated Casas-Castrillon’s interpretation of § 1226(c). The Jennings Court 15 emphasized that § 1226(c) “expressly and unequivocally imposes an affirmative prohibition on 16 releasing detained aliens under any other conditions[,]” except for those specified by 8 U.S.C. § 17 1226(c)(2) (witness-protection purposes). 138 S.Ct. at 847, 848 (“[Section 1226(c) does not on 18 its face limit the length of detention is authorizes.”). 19 III. Perez-Cortez’s Detention is Mandatory Pursuant to § 1226(c) 20 Perez-Cortez has been held in immigration detention for over two years. He argues that 21 Fifth Amendment due process requires that the government establish, at an individualized 22 hearing before a neutral decisionmaker, by clear and convincing evidence of flight risk or danger, 23 that his continued detention is justified (ECF No. 1, p. 23). 24 In Jennings, the Supreme Court sharply criticized the Ninth Circuit Court of Appeals’ 25 conclusion that §§ 1225(b) and 1226(c) impose an implicit six-month limit on a noncitizen’s 26 detention under these sections. 138 S.Ct. at 839. The court of appeals had held that after that 27 point the government may continue to detain the alien only under the authority of 1226(a). The 28 court of appeals then construed 1226(a) to mean that a noncitizen must be given a bond hearing 2 government proves by clear and convincing evidence that further detention is justified. 3 Reversing the Ninth Circuit, the Jennings Court explained that spotting a potential constitutional 4 issue does not give a court authority to rewrite a statute as it pleases. Id. at 843. The Court 5 emphasized the “clear[]” language of § 1226(c) mandating detention for aliens falling within its 6 scope and authorizing release only for witness-protection purposes. Id. at 846. The Court 7 declined to find the statute unconstitutional. Id. at 846, 847, 851; see also id. at 846 (“§ 1226(c) 8 reinforces the conclusion that aliens detained under its authority are not entitled to be released 9 under any circumstances other than those expressly recognized by the statute.”). See also Demore, 10 538 U.S. 510 (also concluding that § 1226(c) was not unconstitutional). 11 Perez-Cortez, like the noncitizen in Demore, “argued that his detention under § 1226(c) 12 violated due process because the [government] had made no determination that he posed either 13 a danger to society or a flight risk.” Demore, 538 U.S. at 514. The Court has upheld detention 14 pending removal proceedings on the basis of a categorical, rather than individualized, 15 assessment that a valid immigration purpose warranted interim custody. Id. at 523-526 16 (discussing Carlson v. Landon, 342 U.S. 524 (1952) and Reno v. Flores, 507 U.S. 292 (1993). “In the 17 exercise of its broad power over naturalization and immigration, Congress regularly makes rules 18 that would be unacceptable if applied to citizens.” Id. at 521 (citations omitted). The Court has 19 repeatedly observed that “when the Government deals with deportable aliens, the Due Process 20 Clause does not require it to employ the least burdensome means to accomplish its goal.” See, e.g., 21 id. at 528. 22 Here, while Perez-Cortez argues that he poses no danger to the community and is not a 23 flight risk, he does not contest that he has been convicted of a predicate crime for § 1226(c) 24 classification. See Jennings, 138 S.Ct. at 838 n.1 (discussing Joseph hearing, Matter of Joseph, 22 I. & N. 25 Dec. 799). Perez-Cortez urges that he is being detained indefinitely, with no prospect of 26 removal in the reasonably foreseeable future, in violation of due process. The court disagrees. 27 The Supreme Court has held that a noncitizen cannot be detained indefinitely in a removable- 28 but-not-removable status; the most common situation occurs when no country can be found to 2 detained not because Mexico will not take him back, but because he still is litigating the order 3 of removal from the United States. Perez-Cortez does not allege that Mexico will not accept 4 him. In fact, ICE had arranged a flight to Mexico to execute the final removal order, which it 5 canceled when Perez-Cortez was granted a stay of removal. The Ninth Circuit will issue a 6 decision on his pending petition for review. Nothing would prevent Perez-Cortez’s removal to 7 Mexico if ultimately he is unsuccessful in his petition for review. See Prieto-Romero, 534 F.3d at 8 1062-65. Jennings expressly states that Perez-Cortez’s detention under 1226(c) is mandatory, and 9 he is not being detained indefinitely. His petition is without merit and, therefore, is denied. 10 As a federal detainee proceeding under 28 U.S.C. § 2241, Perez-Cortez is not required to 11 obtain a certificate of appealability from the denial of this petition. See Harrison v. Ollison, 519 F.3d 12 952, 958 (9th Cir. 2008). 13 IV. Conclusion 14 It is therefore ordered that the petition (ECF No. 1) is denied as set forth in this order. 15 It is further ordered that the Clerk enter judgment accordingly and close this case.
16 DATED this 4th day of May, 2022.
18 UNITED STATES DISTRICT JUDGE 19
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