Reyes v. Wolf

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

ELSA DIAZ REYES, CASE NO. C20-0377JLR Petitioner, ORDER ADOPTING IN PART v. AND MODIFYING IN PART RECOMMENDATION CHAD WOLF, et al., Respondents.

This matter comes before the court on the Report and Recommendation of United States Magistrate Judge Mary Alice Theiler (R&R (Dkt. # 16)) and the objections thereto filed by the Government respondents (Gov’t Obj. (Dkt. # 17)) and by Petitioner Elsa Diaz Reyes (Reyes Obj. (Dkt. # 18)). Magistrate Judge Theiler recommends to the court that it deny the Government’s motion to dismiss Ms. Reyes’s 28 U.S.C. § 2241 immigration habeas petition, grant Ms. Reyes’s habeas petition, and order the Government to provide Ms. Reyes a bond hearing. (R&R at 1.) Ms. Reyes filed a response to the Government’s objection (Reyes Resp. (Dkt. # 19)) and a notice regarding the status of her removal proceedings before the Ninth Circuit Court of Appeals (Reyes Notice (Dkt. # 20)). The

Government did not respond to Ms. Reyes’s objections. (See generally Dkt.) Having carefully reviewed the foregoing documents, the balance of the record, and the applicable law, the court ADOPTS the Report and Recommendation as modified. Because the Report and Recommendation sets forth the detailed factual and procedural background of this case (see R&R at 2-4), the court does not repeat it here.

Since the Report and Recommendation was filed, however, the Ninth Circuit issued its decision granting in part, denying in part, and dismissing in part Ms. Reyes’s pro se petition for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of the Immigration Judge’s (“IJ”) decision denying her application for relief under the Convention Against Torture (“CAT”). (See Reyes Notice.) The Ninth Circuit affirmed

the BIA’s conclusion that Ms. Reyes had failed to show that it was more likely than not that she would be tortured by family members or former guerillas if she returned to El Salvador. Diaz-Reyes v. Barr, No. 19-70955, 2020 WL 6375732, at *1 (9th Cir. Oct. 26, 2020). The Ninth Circuit also held, however, that the BIA “failed to analyze [Ms. Reyes’s] claims that she fears future torture by Jaime Magana and by the father of her

children, Heriberto Coria Cerdo.” Id. The Ninth Circuit stayed Ms. Reyes’s removal and remanded the matter to the BIA to consider the likelihood of torture by Mr. Magana and Mr. Coria Cerdo and whether procedural safeguards for Ms. Reyes are necessary in light of the mental health issues she outlined in her reply brief. Id. In their objections, both Ms. Reyes and the Government argue that Magistrate

Judge Theiler applied the incorrect test when determining that Ms. Reyes was entitled to a bond hearing. (See Reyes Obj. at 1-5; Gov’t Obj. at 2-3.) The Government also objects to Magistrate Judge Theiler’s consideration of two the factors she applied in her analysis as incomplete and to her determination that the Government bears the burden to prove at Ms. Reyes’s bond hearing that Ms. Reyes is dangerous or a flight risk. (See Gov’t Obj. at 3-7.) The court begins by reviewing Magistrate Judge Theiler’s recommendation

regarding the test that the court should apply when evaluating whether Ms. Reyes is entitled to a bond hearing. The court then turns to the Government’s objections regarding Magistrate Judge Theiler’s consideration and weighing of the applicable factors and her recommendation regarding the burden of proof at the bond hearing. A. Standard of review

A district court has jurisdiction to review a magistrate judge’s report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1). The court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). B. The test for determining whether Ms. Reyes’s detention violates the Due Process Clause Ms. Reyes generally agrees with the Report and Recommendation. (Reyes Obj. at 1.) She objects, however, to the Magistrate Judge’s conclusion that the court should apply the eight-factor test outlined in Martinez v. Clark, No. C18-1669RAJ-MAT, 2019 WL 5968089, at *9 (W.D. Wash. May 23, 2019), adopted by No. C18-1669RAJ, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019), to determine whether the Due Process Clause entitles her to a bond hearing. (See Reyes Obj. at 2-5.) Specifically, Ms. Reyes objects to Magistrate Judge Theiler’s inclusion of two of the Martinez factors in her analysis: the length of time Ms. Reyes spent in prison for the crime that made her removable and the nature of the crimes Ms. Reyes committed.1 (Id.) She contends that these two factors are not relevant to determining whether the procedural protections of a bond hearing apply in the first instance and should be considered only at the bond hearing itself. (Id. at 2.) She asks the court to apply instead the six-factor test set forth in Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019), which omits any consideration of the detainee’s criminal history and sentence. (Reyes Obj. at 2.) The Government did not respond to Ms. Reyes’s objection. In its own objections, however, the Government argues that Magistrate Judge Theiler should have employed the 1 The complete set of Martinez factors includes “(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 crime that made him removable; (4) the nature of the crimes the petitioner committed; (5) the conditions of detention; (6) delays in the removal proceedings 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 final order of removal.” Martinez, 2019 WL 5968089, at *9. three-part test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976) rather than the eight-part Martinez test.2 (Gov’t Obj. at 1-2.) Alternatively, the Government argues that

Magistrate Judge Theiler should have considered an additional factor informed by Mathews in applying the Martinez test: the Government’s burden in providing a bond hearing. (Gov’t Obj. at 2-3.) The parties presented thorough argument in their briefing on the Government’s motion to dismiss regarding the test the court should apply and the factors the court should consider. (See Gov’t Mot. to Dismiss (Dkt. # 8) at 4-6; Reyes Resp. to Mot. to

Dismiss (Dkt. # 10) at 2-6.) The parties’ objections fail to raise any novel issues that were not addressed in their prior briefing or by Magistrate Judge Theiler’s Report and Recommendation. The court has thoroughly examined the record and the cited law and is persuaded by Magistrate Judge Theiler’s explanation of why she recommends that the court apply the eight-factor Martinez test rather than the Banda or Mathews tests, and

why she rejected the Government’s proposal to add a factor that considers the Government’s burden in providing a bond hearing. (See R&R at 7-11.) Because the parties merely repeat the arguments that they made to Magistrate Judge Theiler, the court rejects those arguments for the same reasons Magistrate Judge Theiler rejects them in her Report and Recommendation. The court therefore overrules the parties’ objections and

ADOPTS Magistrate Judge Theiler’s conclusion that the court should apply the

2 The Mathews test requires considering (1) the private interest affected, (2) the government’s interest, and (3) the value added by additional or substitute procedural safeguards in the situation before the court. Mathews, 424 U.S. at 334. eight-factor Martinez test in evaluating Ms. Reyes’s entitlement to a bond hearing (see R&R at 7-11).

C. Evaluation of the Martinez factors The Government objects that Magistrate Judge Theiler’s consideration of two of the Martinez factors—the likelihood that removal proceedings will result in a final order of removal and the delays in the removal proceedings attributable to Ms. Reyes—was incomplete. (Gov’t Obj. at 3-6.) In addition, the court notes that the passage of time since Magistrate Judge Theiler issued her Report and Recommendation has affected the

court’s analysis of two additional factors: the length of Ms. Reyes’s detention to date and the likely duration of future detention.3 The court’s review of these four factors is informed by the Ninth Circuit’s recent decision granting in part Ms. Reyes’s petition for review of the denial of her application for relief under the CAT. Diaz-Reyes, 2020 WL 6375732, at *1.

1. Likelihood that removal proceedings will result in a final order of removal The “likelihood of removal” inquiry focuses on whether the “noncitizen has asserted a good faith challenge to removal.” Martinez, 2019 WL 5968089, at *10. Magistrate Judge Theiler declined to weigh in on the merits of Ms. Reyes’s appeal to the

3 The court finds that Magistrate Judge Theiler’s analysis of the remaining Martinez factors—Ms. Reyes’s criminal sentence, the nature of her crime, the conditions of detention, and delays in the removal proceedings attributable to the Government—are unaffected by subsequent events and are unchallenged by the parties. (See R&R at 12-14.) The court therefore ADOPTS those portions of the Report and Recommendation and considers them in its weighing of the Martinez factors below. Ninth Circuit. (R&R at 16.) Nevertheless, she concluded that this factor weighed slightly in Ms. Reyes’s favor because the Ninth Circuit had granted Ms. Reyes a stay of

removal pending the resolution of her appeal of the BIA’s decision denying her CAT relief, thus demonstrating that Ms. Reyes’s challenge to her removal was in good faith. (Id.) The Government objects that this “cursory analysis” is insufficient, and that instead the court should “consider whether the noncitizen’s continued pursuit of relief from removal is likely to be successful on the merits.” (Gov’t Obj. at 3-4.) In support of its argument, the Government cites Martinez, 2019 WL 5968089 at

*10, in which the court stated that it did “not have sufficient information to determine whether the appeal is nonfrivolous or whether petitioner ultimately will prevail” and therefore concluded that the factor did not weigh in favor of either party. (Gov’t Obj. at 4.) The Government also emphasizes that the Ninth Circuit’s review of a petition is deferential to the Government. (Id.) For these reasons, the Government argues, it is

likely that the Ninth Circuit proceedings would conclude in a final order of removal. (Id.) Since the Report and Recommendation was filed, however, the Ninth Circuit granted in part Ms. Reyes’s petition for review. Diaz-Reyes, 2020 WL 6375732, at *1. Because Ms. Reyes prevailed in part on her appeal to the Ninth Circuit, it is now

apparent—in contrast to Martinez—that Ms. Reyes’s appeal was nonfrivolous and that her challenge to her removal was in good faith. Although the court is unable to determine on the record before it whether Ms. Reyes will ultimately prevail on her application for CAT relief, the court finds that Ms. Reyes has now established that she has legitimate, good faith defenses to removal. Therefore, the court concludes that this factor weighs in Ms. Reyes’s favor.

2. Delays in the removal proceedings attributable to Ms. Reyes In considering the nature and extent of any delays in the removal proceedings attributable to Ms. Reyes, the court is mindful that Ms. Reyes “is entitled to raise legitimate defenses to removal . . . and such challenges to [her] removal cannot undermine [her] claim that detention has become unreasonable.” Martinez, 2019 WL 5968089, at *10 (quoting Liban M.J. v. Sec’y of Dept. of Homeland Security, 367

F. Supp. 3d 959, 965 (D. Minn. 2019)). This factor weighs against the noncitizen where she “has ‘substantially prolonged [her] stay by abusing the processes provided,’” but not when she “simply made use of the statutorily permitted appeals process.” Hechavarria v. Sessions, 891 F.3d 49, 56 n.6 (2d Cir. 2018) (quoting Nken v. Holder, 556 U.S. 418, 436 (2009)).

Magistrate Judge Theiler found that the primary dispute in this case regarding Ms. Reyes’s responsibility for delays in her removal proceedings arose from the stay of proceedings in the Ninth Circuit that Ms. Reyes requested pending the adjudication of her application for a T visa. (R&R at 14-15.) Magistrate Judge Theiler did not find that Ms. Reyes’s request for a stay was an abuse of the available processes. (Id. at 15.) Rather,

she concluded that even if the twelve-month delay in Ms. Reyes’s removal proceedings resulting from her request for a stay were attributed to Ms. Reyes, that delay would not affect her entitlement to a bond hearing. (Id.) In weighing the Martinez factors, Magistrate Judge Theiler determined that, even if the twelve-month delay arising from Ms. Reyes’s request for a stay were attributed to Ms. Reyes, there remained twelve months of detention that could not be attributed to delays by Ms. Reyes. (Id. at 17.)

The Government objects that Magistrate Judge Theiler failed to account “for the fact that Petitioner chose to pursue an appeal of the Immigration Judge’s decision to the Board of Immigration Appeals . . . which was not successful but served to lengthen her proceedings before the agency and, consequently, her mandatory detention.” (Gov’t Obj. at 5.) It contends that the decision to “take an unsuccessful administrative appeal to the [BIA] was solely Petitioner’s choice.” (Id. at 6.) But Ms. Reyes was entitled to pursue in

good faith the processes available to her under the immigration laws, and the Ninth Circuit ultimately granted in part her petition for review of the BIA’s adverse decision. See Martinez, 2019 WL 5968089, at *10; Diaz-Reyes, 2020 WL 6375732, at *1. The court, therefore, agrees with Magistrate Judge Theiler that no more than twelve months of delay can be attributed to Ms. Reyes. Assuming without deciding that Ms. Reyes is

responsible for twelve months of delay out of her 28-month detention (see below), the court finds that this factor weighs only slightly in favor of the Government. 3. Length of detention to date The length of Ms. Reyes’s detention is the most important factor in the court’s review of the Martinez test. See Martinez, 2019 WL 5968089, at *9; (see also R&R at 11

(citing cases)). As Magistrate Judge Theiler observed, courts have found that detention periods of greater than six months, twelve months, and thirteen months weighed in favor of granting a bond hearing. (See R&R at 11-12 (citing Sajous v. Decker, No. C18-2447, 2018 WL 2357266, at *10 (S.D.N.Y. May 23, 2018); Liban M.J., 367 F. Supp. 3d at 963- 64; and Martinez, 2019 WL 5968089, at *9).) Here, Ms. Reyes has been held in ICE custody since July 19, 2018, or 28 months.4 The court finds, therefore, that this factor

weighs more heavily in Ms. Reyes’s favor today than it did in Magistrate Judge Theiler’s analysis. 4. Likely duration of future detention Finally, the court “considers how long the detention is likely to continue absent judicial intervention; in other words, the anticipated duration of all removal proceedings including administrative and judicial appeals.” Martinez, 2019 WL 5968089, at *9.

When Magistrate Judge Theiler issued her Report and Recommendation, the Ninth Circuit had recently lifted its stay of proceedings in Ms. Reyes’s petition for review. Magistrate Judge Theiler estimated, at that time, that it might take another nine to twelve months for the Ninth Circuit to issue its decision. The Ninth Circuit, however, issued its decision granting in part Ms. Reyes’s petition for review less than three months after

Magistrate Judge Theiler filed the Report and Recommendation. The Ninth Circuit has now remanded Ms. Reyes’s case for further consideration by the BIA, see Diaz-Reyes, 2020 WL 6375732, at *1, and it is unclear how long subsequent proceedings before the BIA will take. Furthermore, as Ms. Reyes points out, if the BIA again denies relief following remand, Ms. Reyes will be entitled to appeal that decision to the Ninth Circuit.

(See Resp. Notice at 1.) Accordingly, the court finds that this factor weighs in Ms.

4 As discussed above, even if twelve months of delay in her removal proceedings can be attributed to Ms. Reyes, the result is that she has been in detention pending the completion of her removal proceedings for sixteen months. The court finds, based on the authorities above, that sixteen months of detention weighs strongly in favor of Ms. Reyes. Reyes’s favor slightly more heavily than it did when Magistrate Judge Theiler filed the Report and Recommendation.

5. Weighing the factors Following its de novo review of the record, the court finds that the following Martinez factors weigh in favor of finding that Ms. Reyes’s continued detention has become unreasonable: the length of her detention, which has surpassed 28 months and thus strongly favors Ms. Reyes; the duration of her future detention, which is uncertain but could be prolonged depending on the BIA’s decision following remand; the

conditions of detention at the NWIPC (see R&R at 13-14); and the likelihood that removal proceedings will result in a final order of removal. The following factors weigh in favor of finding that Ms. Reyes’s detention is reasonable and does not violate due process: Ms. Reyes’s conviction for a serious crime and a ten-year criminal sentence that was far longer than her current detention (see R&R at 12 & 17 (noting that the weight of

these factors “is mitigated somewhat by the circumstances surrounding Petitioner’s participation in the crime and the sentencing judge’s belief that the mandatory minimum was overly harsh in her case”)); the lack of delay by the Government; and a delay in removal proceedings of up to twelve months attributable to Ms. Reyes. Having considered the totality of these factors, the court finds that the factors

favoring Ms. Reyes weigh most heavily. In particular, as discussed above, the length of Ms. Reyes’s detention and the likelihood that her removal proceedings will result in a final order of removal bear greater weight today than they did when Magistrate Judge Theiler filed the Report and Recommendation, while none of the factors favoring the Government bear more weight today than they did before. The court concludes that Ms. Reyes’s mandatory detention of 28 months has become unreasonable and is in violation

of her due process rights and that Ms. Reyes is, therefore, entitled to a bond hearing before an IJ. D. The Government’s burden of proof at the bond hearing Finally, the Government objects to Magistrate Judge Theiler’s conclusion that the Government must provide clear and convincing evidence at Ms. Reyes’s bond hearing that she is dangerous or a flight risk to justify her continued detention. (Gov’t Obj. at

6-7; see R&R at 17-19.) Magistrate Judge Theiler based her determination that the Government bears the burden at the bond hearing on Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011), in which the Ninth Circuit determined that constitutional due process required the government to meet the clear and convincing burden of proof standard. (See R&R at 18-19.) Although the Government relies in its objections on

Jennings v. Rodriguez, 138 S. Ct. 380 (2018), the Ninth Circuit has recently held that Jennings does not invalidate Singh’s constitutional due process holding. Aleman Gonzales v. Barr, 955 F.3d 762, 781 (9th Cir. 2020) (rejecting the Government’s reliance on Jennings and reaffirming that the Government must justify an alien’s continued detention under by clear and convincing evidence). (See R&R at 19.) The court must

follow the Ninth Circuit’s holdings in Singh and Aleman Gonzales. Therefore, the court overrules the Government’s objection and ADOPTS Magistrate Judge Theiler’s conclusion that the Government must justify Ms. Reyes’s continued detention by clear and convincing evidence at her bond hearing (see R&R at 17-19).

For the foregoing reasons, the court hereby ORDERS as follows: (1) The court ADOPTS the Report and Recommendation as modified above with respect to the analysis and weighing of the Martinez factors; (2) The court DENIES the Government’s motion to dismiss (Dkt. # 8); (3) The court GRANTS Ms. Reyes’s habeas petition (Dkt. # 1); (4) Within 30 days of the date of this order, the Government shall release Ms. Reyes on bond or reasonable conditions unless Ms. Reyes receives a bond hearing before

an immigration judge at which the Government justifies her continued detention by clear and convincing evidence; and (5) The Clerk is directed to send copies of this order to the parties and to Magistrate Judge Theiler.

Dated this 20th day of November, 2020. A United States District Judge