Romero Romero v. Wolf

• Court: District Court, N.D. California
• Decided: January 26, 2021
• Docket: 3:20-cv-08031
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NECTALI ULISES ROMERO ROMERO, Case No. 20-cv-08031-TSH

8 Petitioner, ORDER RE: PETITION FOR A WRIT 9 v. OF HABEAS CORPUS

10 CHAD F. WOLF, et al., Re: Dkt. No. 1 11 Respondents.

12 13 I. INTRODUCTION 14 Petitioner Nectali Ulises Romero-Romero has been in the custody of the Department of 15 Homeland Security’s Immigration and Customs Enforcement (“DHS”) for more than a year. He 16 was charged with removability based on a prior conviction that qualifies as an aggravated felony. 17 See 8 U.S.C. § 1226(c)(1)(B). Petitioner claims that he is being improperly detained under the 18 mandatory detention provisions of the Immigration and Nationality Act, in violation of his Fifth 19 Amendment right to due process. He filed a Petition for Writ of Habeas Corpus Pursuant to 28 20 U.S.C. § 2241 ordering his release or, alternatively, a hearing on whether his continued detention 21 is justified. ECF No. 1. Respondents filed a Return, ECF No. 10, and Petitioner filed a Traverse, 22 ECF No. 11. Neither side called for a hearing, and the Court determines the matter is appropriate 23 for resolution without oral argument. Civil L.R. 7-1(b). Having considered the relevant pleadings 24 and arguments of counsel, the Court GRANTS the Petition for the reasons explained below. 25 II. BACKGROUND 26 The parties do not dispute the pertinent facts. Petitioner Nectali Romero-Romero is a 27 Salvadoran national, long-time Lawful Permanent Resident (“LPR”) of the United States who is 1 Detention Facility (“Mesa Verde”). Decl. of Hayley Upshaw ISO Petition (“Upshaw Decl.”) Exs. 2 A (Notice to Appear, or “NTA”), D. On April 11, 2016, Petitioner was convicted in the California 3 Superior Court, County of Los Angeles for lewd or lascivious acts with a minor under 14 years of 4 age, in violation of California Penal Code § 288(a), and was sentenced to six years of 5 incarceration. NTA. Petitioner served four and a half years and was scheduled to be released 6 from prison on December 23, 2019. Upshaw Decl. Ex. F (“Romero-Romero Decl.”) ¶ 59. He was 7 detained by ICE in December 2019 pursuant to 8 U.S.C. § 1226(c), which directs that the 8 government “shall take into custody any alien who is deportable” based on a conviction of an 9 aggravated felony. See Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii); 8 U.S.C. § 10 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after 11 admission is deportable.”). From December 23, 2019 until now Petitioner has been detained at 12 Mesa Verde. Upshaw Decl. Ex. D. He is currently in removal proceedings. 13 After hearings before the San Francisco Immigration Court in January and February 2020, 14 an immigration judge (“IJ”) found Petitioner removable. Upshaw Decl. Ex. H (“Upshaw Aff.”) ¶ 15 5. In March 2020, Petitioner filed a Form I-130 Petition with United States Citizenship and 16 Immigration Services (“USCIS”) to re-adjust status (re-apply for residency) through his adult son, 17 anticipating that he was eligible for a waiver of inadmissibility pursuant to INA § 212(h). Id. ¶¶ 5- 18 7. He also applied for relief under the Convention Against Torture (“CAT”). Id. ¶ 5. The I-130 19 was approved on May 15, 2020, id. ¶ 13, and Petitioner filed his applications for a waiver of 20 inadmissibility (I-601) and adjustment of status (I-485) on June 30, 2020, id. ¶ 15. After a hearing 21 on July 28, 2020, the IJ denied Petitioner’s applications for deferral of removal under CAT, for 22 waiver of inadmissibility under § 212(h) and for adjustment of status under INA § 245, and 23 ordered him removed to El Salvador. Id. ¶ 18; Decl. of Deportation Officer Rigoberto Gilbert 24 (“Gilbert Decl.”) Ex. 7 (“IJ Order”). The IJ found that, pending removal, Petitioner was subject to 25 mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c), and that the Court lacked 26 jurisdiction to consider his release on bond. Upshaw Aff. ¶ 19; IJ Order. The IJ’s order became 27 final on August 25, 2020 when the IJ considered Petitioner’s motion to reconsider but denied 1 Immigration Appeals (“BIA”). Id. ¶ 23. The appeal remains pending. Id. ¶ 28. 2 Petitioner has now been in custody over one year. Having appealed his case to the BIA, 3 his removal order is not yet administratively final. 8 C.F.R. § 1241.1. He has yet to receive a 4 bond hearing. He argues that his “prolonged detention without a hearing on danger and flight risk 5 violates the Due Process Clause of the Fifth Amendment and the Eighth Amendment’s Excessive 6 Bail Clause.” Petition at 1. He asks the Court to issue a writ of habeas corpus and order his 7 immediate release or, in the alternative, order his release within 14 days unless Respondents 8 schedule a bond hearing. 9 III. JURISDICTION AND VENUE 10 The Court has jurisdiction under 28 U.S.C. §§ 1331, 2241 to consider constitutional 11 challenges to Petitioner’s continued detention under 8 U.S.C. § 1226(c). Rodriguez v. Marin, 909 12 F.3d 252, 256 (9th Cir. 2018) (“[I]t is clear that we have jurisdiction over petitioners’ [prolonged 13 detention] claims, as does the district court.”). As to venue, Petitioner is being held pursuant to 8 14 U.S.C. § 1226(c) in Mesa Verde, which lies outside this District. But venue is nonetheless proper 15 here under 28 U.S.C. § 1391 because at least one Respondent (the Acting Director of the San 16 Francisco Field Office) is located in this District, and because Petitioner alleges that he was before 17 the Immigration Court in this District and that a substantial part of the events giving rise to his 18 claims took place in this District: he was arrested and placed in detention by the San Francisco 19 ICE Field Office, his removal proceedings and venue took place in San Francisco Immigration 20 Court and a San Francisco IJ found he was subject to mandatory detention. See Masood v. Barr, 21 No. 19-CV-07623-JD, 2020 WL 95633, at *2 (N.D. Cal. Jan. 8, 2020), appeal dismissed, 2020 22 WL 6606369 (9th Cir. Aug. 25, 2020) (venue proper in this District because petitioner alleged that 23 the Acting Field Director was in San Francisco, most of the material events occurred here, and 24 because the “relief ordered by the Court will be directed to the San Francisco ICE office”). 25 IV. LEGAL FRAMEWORK 26 A federal court may grant a writ of habeas corpus to an individual if “[h]e is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A 1 issue an order directing the respondent to show cause why the writ should not be granted, unless it 2 appears from the application that the applicant or person detained is not entitled thereto.” 28 3 U.S.C. § 2243. “The court shall summarily hear and determine the facts, and dispose of the matter 4 as law and justice require.” Id. 5 Section 237(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a), 6 directs that, “[a]ny alien . . . in and admitted to the United States shall, upon the order of the 7 Attorney General, be removed if the alien is within one or more” of certain “classes of deportable 8 aliens.” 8 U.S.C. § 1227(a). Included is “[a]ny alien who is convicted of an aggravated felony at 9 any time after admission.” Id. § 1227(a)(2)(A)(iii). The parties do not dispute that Petitioner’s 10 state-court conviction in 2016 was an aggravated felony. 11 INA § 236, 8 U.S.C. § 1226, “generally governs the process of arresting and detaining that 12 group of aliens [subject to removal pursuant to § 1227(a)] pending their removal.” Jennings v. 13 Rodriguez, 138 S. Ct. 830, 837 (2018). Under § 1226(c)(1)(C), the Attorney General is required 14 to “take into custody any alien who . . . is deportable by reason of having committed any offense 15 covered in [§ 1227(a)(2)(A)(iii)]. . . when the alien is released [from custody], without regard to 16 whether the alien is released on parole, supervised release, or probation . . . .” The Attorney 17 General “may release” such an individual “only if” “the release . . . is necessary” for witness- 18 protection purposes and if the individual “will not pose a danger to the safety of other persons or 19 of property and is likely to appear for any scheduled proceeding.” Id. § 1226(c)(2). In other 20 words, “§1226(c) mandates detention of any alien falling within its scope and that detention may 21 end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness- 22 protection purposes.” Jennings, 138 S. Ct. at 847. The subsection “expressly prohibits release 23 from that detention except for narrow, witness-protection purposes,” and it “does not on its face 24 limit the length of the detention it authorizes.” Id. at 846. The Supreme Court in Jennings 25 rejected the argument that anything in the text of § 1226(c) prohibits prolonged detention “in the 26 absence of an individualized bond hearing at which the Government provides by clear and 27 convincing evidence” that detention remains justified. Id. at 839; id. at 837 (“Section 1226(c) [] 1 found the Ninth Circuit erroneously concluded that periodic bond hearings were required by the 2 language of the provision. However, it left open the question of whether prolonged detention of 3 an alien without individualized review by a neutral decisionmaker violates due process. Neither it 4 nor the Ninth Circuit has answered that question. See Rodriguez v. Marin, 909 F.3d 252, 255 (9th 5 Cir. 2018) (remanding the constitutional issue to the district court after remand by the Supreme 6 Court). But both have indicated that “[a] statute permitting indefinite detention of an alien would 7 raise a serious constitutional problem.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Marin, 909 8 F.3d at 256 (“We have grave doubts that any statute that allows for arbitrary prolonged detention 9 without any process is constitutional or that those who founded our democracy precisely to protect 10 against the government’s arbitrary deprivation of liberty would have thought so.”). Taking its cue 11 from Supreme Court and Court of Appeals, the Court concludes here that Petitioner’s prolonged 12 detention raises due process concerns. 13 V. PETITIONER’S ENTITLEMENT TO RELIEF 14 The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or 15 property, without due process of law.” U.S. Const. amend. V. “Freedom from imprisonment— 16 from government custody, detention, or other forms of physical restraint—lies at the heart of the 17 liberty” that the Due Process Clause protects. Zadvydas, 533 U.S. at 690; see also id. at 718 18 (Kennedy, J., dissenting) (“Liberty under the Due Process Clause includes protection against 19 unlawful or arbitrary personal restraint or detention.”). “‘It is well established that the Fifth 20 Amendment entitles aliens to due process of law in deportation proceedings.’” Demore v. Kim, 21 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). “A well- 22 established line of cases in our circuit has applied this due process guarantee to prolonged 23 immigration detentions without a custody hearing.” Masood, 2020 WL 95633, at *3. 24 In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), for 25 example, a lawful permanent resident who had been detained for nearly seven years under § 26 1226(c) and then § 1226(a) sought habeas relief while his petition for review of his removal order 27 was pending before the Ninth Circuit. Id. at 944-48. Discussing Demore, the Court of Appeals 1 with the specific understanding that § 1226(c) authorize[s] mandatory detention only for the 2 ‘limited period of the non-citizen’s removal proceedings,’ which the Court estimated ‘lasts 3 roughly a month and a half in the vast majority of cases in which it is invoked, and about five 4 months in the minority of cases in which the alien chooses to appeal’ his removal order to the 5 BIA.” Id. at 950 (quoting Demore, 538 U.S. at 530). The Court of Appeals noted that 6 “[r]eferences to the brevity of mandatory detention under § 1226(c) run through Demore.” 535 7 F.3d at 950 (citing Demore, 538 U.S. at 513, 523, 526, 529 n. 12). Although it ultimately decided 8 as a matter of statutory interpretation that § 1226(a) requires the Attorney General to provide 9 aliens with a bond hearing, the court nonetheless stated that “prolonged detention without 10 adequate procedural protections” such as “receiving an individualized determination of the 11 necessity of detention before a neutral decision maker” “would raise serious constitutional 12 concerns.” 535 F.3d at 950. 13 As another example, in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (“Diouf II”), 14 the Ninth Circuit addressed prolonged detention under § 1231(a)(6) (for aliens already ordered 15 removed). The court extended Casas-Castrillon to aliens detained under § 1231(a)(6), again 16 noting that “prolonged detention . . . without adequate procedural protections”—i.e., a bond 17 hearing—“would raise ‘serious constitutional concerns.’” Id. at 1086 (quoting Casas-Castrillon, 18 535 F.3d at 950). The court opined that, “[w]hen detention crosses the six-month threshold and 19 release or removal is not imminent, the private interests at stake are profound. Furthermore, the 20 risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral 21 decisionmaker is substantial.” Id. at 1091-92. The government’s burden in having to provide a 22 hearing before an immigration judge, the court concluded, was “a reasonable one.” Id. at 1092. 23 “While Diouf II specifically addressed Section 1231(a)(6), its reasoning was based on 24 constitutional considerations of due process, and there is no reason to treat continued detention” 25 under § 1226(c) any differently. Masood, 2020 WL 95633, at *3. 26 Both Casas-Castrillon and Diouf II “invoked the doctrine of constitutional avoidance to 27 imply a statutory right to a bond hearing – a statutory right that does not survive the Supreme 1 Nielsen, 2019 WL 7491555, at *6 (N.D. Cal. Jan. 7, 2019). Thus, on the issue of due process, they 2 hold as much force after Jennings as they did before. 3 In this case, the due process concerns raised by Petitioner’s detainment warrant relief. 4 Petitioner has been detained for over a year1, and there is no remotely certain end in sight as to his 5 custody. The government doesn’t even suggest when Petitioner’s BIA appeal will be resolved, 6 and Petitioner indicates that he is likely to petition the Ninth Circuit for a review of the BIA’s 7 decision. Upshaw Aff. ¶ 31. Either process alone could lead to Petitioner’s appeal taking many 8 more months, and together almost certainly would take well over another year. The government 9 reminds the Court that Petitioner’s “litigation choices have affected the length of his detention,” 10 that he “chose to seek reconsideration with the IJ, and then chose to appeal to the BIA.” Return at 11 12. It submits that “[t]he length of Petitioner’s detention is thus a result of his choices and 12 strategies, including seeking continuances, relief from removal, and appellate review.” Id. But 13 “[t]his does not redound to [Petitioner’s] discredit, as the government would have it.” Masood, 14 2020 WL 95633, at *3. Petitioner’s BIA appeal (and his appeal to the Ninth Circuit, should he 15 pursue it) is perfectly legitimate; if his removal becomes final, he loses the right to live in the 16 country he’s lived in since he was an infant (he’s over 40 now), “and it ill suits the United States 17 to suggest that he could shorten his detention by giving up these rights and abandoning his 18 [appeal].” Id. Nor does the Court find compatible with our system of government that Petitioner 19 should simply have to forfeit his due process rights because he is choosing (if one can really call it 20 a choice) to pursue the rights provided to him by our laws.2 21 Nor is the Court persuaded by the Respondents’ argument as to the government’s interest. 22 According to Respondents, the government “maintains a strong interest in upholding Section 23

24 1 This is over twice the length of time the Supreme Court cited as an outer limit “in the minority of cases” in which an alien chooses to appeal the decision of an IJ to the BIA. Demore, 538 U.S. at 25 530 (upholding only “brief” detentions under Section 1226(c), which last “roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of 26 cases in which the alien chooses to appeal”). 2 According to Respondents, they “do not suggest that Petitioner . . . should be penalized for” for 27 availing himself of his rights to appeal his removal. Return at 12. That assertion does not couple 1 1226(c)’s statutory framework of mandatory detention for criminal aliens convicted of aggregated 2 felonies.” Return at 13. “Section 1226(c),” they claim, “embodies Congress’s categorical 3 judgment that non-citizens who have committed the specified offenses pose an undue flight risk 4 and danger to the community—and that immigration judges should no longer be in the business of 5 trying to predict whether they will be a flight risk or danger.” Id.; id. (“Congress has determined 6 that the risk of erroneous release among these criminal aliens is too high to permit the exercise of 7 discretion through a bond hearing.”). Be that as it may, all “persons” in the United States—citizen 8 or otherwise—are entitled to due process rights, and not just certain categories. Zadvydas, 533 9 U.S. at 693 (“[O]nce an alien enters the country, the legal circumstance changes, for the Due 10 Process Clause applies to all ‘persons’ within the United States, including aliens, whether their 11 presence here is lawful, unlawful, temporary, or permanent.”). If immigration judges should not 12 be in the business of providing due process to individuals detained pursuant to § 1226(c), who 13 should? Respondents’ position here, taken to its extreme, would mean that the government could 14 detain certain categories of immigrants indefinitely with no recourse for those individuals to 15 challenge their detention. Even if that is what Congress intended—to indefinitely detain certain 16 categories of immigrants with no opportunity to challenge custody—our system of government 17 has never allowed Congress to legislate away Constitutional rights. It may be that Congress made 18 a judgment that immigrants who’ve committed certain types of specified offenses pose an undue 19 flight risk or danger to the community, but there must be some process for that assumption to be 20 challenged on an individual basis, for “both removable and inadmissible aliens are entitled to be 21 free from detention that is arbitrary or capricious.” Zadvydas, 533 U.S. at 721 (Kennedy, J., 22 dissenting). The Supreme Court has said that, even where “protecting the community” is a 23 justification, “we have upheld preventive detention based on dangerousness only when limited to 24 specially dangerous individuals and subject to strong procedural protections.” Zadvydas, 533 25 U.S. at 690-91 (emphasis added). Respondents would have no procedural protections at all. 26 “Moreover, . . . [p]roviding a bond hearing would not undercut the government’s asserted interest 27 in effecting removal. After all, the purpose of a bond hearing is to inquire whether the alien 1 (N.D. Cal. Jan. 30, 2020). 2 Nor, finally, are the due process concerns fully alleviated by the fact that Petitioner sought 3 and was denied emergency release in the class action pending before Judge Chhabria. See Zepeda 4 Rivas, et al., v. Jennings, et al., No. 20-cv-2731-VC, 2020 WL 2059848. In an effort to ameliorate 5 conditions at Mesa Verde in response to the COVID-19 pandemic, Judge Chhabria instituted a bail 6 process whereby ICE detainees at the facility submitted bail applications for release on bail while 7 that case is pending. Petitioner filed a bail application pursuant to Judge Chhabria’s order and a 8 renewed application, and was twice denied bail. But that process, as far the Court can tell, did not 9 involve an opportunity for individual detainees to testify at a hearing and/or present evidence. 10 This is different from a hearing in an immigration court, where an individual is provided the 11 chance to testify and present evidence, and where there is an established process for appellate 12 review. Upshaw Decl. Ex. L (Decl. of Emilou MacLean, counsel in Zepeda Rivas) ¶ 5. A custody 13 or bond hearing is what’s demanded of Respondents, and the Court is reluctant to find that 14 demand satisfied by a less robust, emergency procedure carried out by this court. 15 Petitioner’s prolonged and ongoing detention without a custody hearing is not compatible 16 with due process. He is entitled to relief.3 “The remedy for the due process concerns here is an 17 individualized custody hearing.” Masood, 2020 WL 95633, at *4 (ordering a custody hearing 18 within 28 days of the court’s order) (citing Diouf II, 634 F.3d at 1092; Casas-Castrillon, 535 F.3d 19 at 951; Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005)); Jimenez, 2020 WL 510347, at *4 20 (ordering a bond hearing within 30 days for an individual detained in removal proceedings 21 pursuant to § 1226(c)); Rodriguez, 2019 WL 7491555, at *7 (petitioner in similar circumstances 22 “entitled to an individualized determination by an immigration judge whether he is a danger to the 23 community or a flight risk”). At the custody hearing, the government will bear the burden of 24 showing by clear and convincing evidence that Petitioner’s continued detention is justified. See 25 Singh v. Holder, 638 F.3d 1196, 1203-06 (9th Cir. 2011) (the “clear and convincing evidence” 26 3 The Court well appreciates the severity of the crime for which Petitioner was convicted and for 27 which he served time. But Petitioner has served his sentence for that crime. To now hold him in 1 standard of proof applies to the showing the government must make at custody hearings for aliens 2 || facing prolonged detention); Masood, 2020 WL 95633, at *5 (ordering a custody hearing and 3 || holding that “the government will bear the burden to show that petitioner’s continued detention is 4 || justified by clear and convincing evidence”); Jimenez, 2020 WL 510347, at *4 (“At the hearing, 5 [the government] must justify [the petitioner’s] continued detention by clear and convincing 6 evidence.”). 7 VI. CONCLUSION 8 The Petition is GRANTED. The government is directed to release Petitioner from custody 9 || unless within 28 days of this Order he is granted a custody hearing before an immigration judge, at 10 || which the government shall justify by clear and convincing evidence Petitioner’s continued 11 detention. If the immigration judge’s decision is not given within 14 days of the custody hearing, g 12 || Petitioner must be released from detention. The parties are ORDERED to file a joint status report 13 |) by April 1, 2021, regarding Petitioner’s detention or release. 14 Petition’s Motion for Decision on the Briefs without Oral Argument is GRANTED. IT IS SO ORDERED. 16

17 || Dated: January 26, 2021 18 TAA. 19 THOMAS S. HIXSON United States Magistrate Judge 20 21 22 23 24 25 26 27 28