Borjas-Calix v. Lynch et al

Filing 45

ORDER granting 31 Plaintiff's Motion for Summary Judgment; denying 34 Defendants' Motion for Summary Judgment. Defendants are enjoined from re-detaining Plaintiff based on the ruling of the BIA. Plaintiff's release from custody and the terms of the release as ruled by the IJ remain in effect. Defendants may re-detain Plaintiff as necessary to effectuate a final order of removal, or as otherwise authorized by law. Signed by Senior Judge David C Bury on 3/22/2018. (MCO)

WO
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IN THE UNITED STATES DISTRICT COURT
5

FOR THE DISTRICT OF ARIZONA
6
7
8

Jorge Alberto Borjas-Calix,
A# 074-709-887,

)
) CV-16-00685-TUC-DCB
)
)
)
) ORDER
)
)
)
)
)
)
)
)

9

Plaintiff,

10
11

v.

12
13

Jeff B. Sessions, et al.,

14

Defendants.

15
16

Before the Court are the Plaintiff’s Motion for Summary Judgment

17

and the Defendants’ Motion for Summary Judgment.

Oral argument

18

was conducted on January 12, 2018 and the matter was taken under
19

advisement.

The Court now rules.

20

SUMMARY
21

Plaintiff Jorge Alberto Borjas-Calix is a native and citizen of
22

Honduras who is subject to an order of removal issued by the United
23

States Department of Homeland Security (DHS). He filed a Complaint in
24

federal court seeking Declaratory and Injunctive Relief in accordance
25

with Federal Rules of Civil Procedure 8(a), 57, and 65. Plaintiff was
26

ordered released by an immigration judge (IJ) in Florence, Arizona,

1

pursuant to controlling authority in this Circuit, but the Department
1

of Homeland Security (DHS) appealed the IJ’s decision to the Executive
2

Office for Immigration Review (EOIR), Board of Immigration Appeals
3

(BIA). The BIA reversed the IJ and vacated the IJ’s decision granting
4

Plaintiff’s

release

on

bond.

The

DHS,

Immigration

and

Customs

5
6
7
8

Enforcement (ICE), Enforcement and Removal Operations (ERO), now seeks
to re-detain Plaintiff, which Plaintiff claims will deprive him of his
due process rights against unlawful deprivation of liberty.
PROCEDURAL BACKGROUND

9

Plaintiff, a citizen of Honduras, first entered the United States

10
11

without inspection on or about March 16, 1997. On March 20, 1997, an

12

IJ ordered Plaintiff removed from the United States, which resulted in

13

his deportation on March 25, 1997. Between June l6, 2008 and July 19,

14

2011, the ICE reinstated Plaintiff’s previous order of removal twice

15

and deported him each time.

16

On or about March l, 2013, Plaintiff entered the United States

17

without inspection near Nogales, Arizona. On March 25, 2015, he was

18

taken into ICE custody.

19

returning to Honduras.

At that time, he indicated he had no fear of

On March 25, 2015, ICE-ERO issued Plaintiff a Form 1-871, Notice

20
21

of

Intent/Decision

to

Reinstate

Prior

Order,

pursuant

to

Section

22

241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), as an alien who has

23

illegally reentered the United States after being previously removed.

24

This Decision reinstated Plaintiff’s March 25, 1997, order of removal.

25

On or about April 22, 2015, Plaintiff was convicted of Illegal

26

Entry, in violation of Title 8 U.S.C. § 1325(a)(l), and sentenced to

2

75 days' incarceration. On or about June 6, 2015, Plaintiff returned
1

to ICE custody at the Florence Detention Center so he could be removed
2

to Honduras.
3

On or about July 21, 2015, an Asylum Pre-Screening Officer found
4

Plaintiff

had

a

reasonable

fear

of

persecution

or

torture,

and

5
6
7

referred Plaintiff’s case to an IJ to allow Plaintiff to apply for
withholding of removal under the Act and protection under the CAT.
On

8
9
10
11

on

Plaintiff

filed

a

motion

with

the

IJ,

January

12,

2016,

finding

that

the

immigration

court

lacked

On January 27, 2016, Plaintiff filed a motion to reconsider the
IJ’s decision, which was granted on January 28, 2016.
On

February

9,

2016,

the

IJ

held

a

custody

redetermination

hearing and set a $10,000 bond.
On February 11, 2016, Plaintiff posted bond for his release from

16
17

2015,

jurisdiction.

14
15

2,

requesting a custody redetermination hearing. The IJ denied the motion

12
13

December

the Florence Detention Center.

18

On February 22, 2016, the Department filed its Notice of Appeal

19

with the BIA. The Department and Plaintiff filed appeal briefs with

20

the BIA.

21

On September 30, 2016, the BIA issued its decision finding that

22

Plaintiff was not eligible for a custody redetermination hearing, and

23

vacated the IJ’s decision.

24

to

25

Plaintiff’s bond to deliver him to ICE on November 18, 2016.

Obligor

to

Deliver

On October 14, 2016, ICE issued a Notice
Alien,

directing

26

3

the

person

who

posted

On

October

24,

2016,

Plaintiff

filed

his

Complaint

for

1

Declaratory and Injunctive Relief, seeking to enjoin Defendants from
2

proceeding with any further action that would result in Plaintiff
3

being taken into ICE custody or detention. Plaintiff then filed a
4

Motion for Preliminary Injunction and/or Temporary Restraining Order,
5
6
7
8

seeking

order

enjoining

Defendants

from

detaining

Plaintiff

or

taking him into custody until the motion for preliminary injunction
and/or the Complaint may be adjudicated.
This Court’s Order issuing a Temporary Restraining

9
10

an

Order was

issued on November 14, 2016.
On December 23, 2016, Plaintiff filed a Motion for Leave to File

11
12

Amended Complaint, pursuant to Fed. R. Civ. P. 15(a)2), in order to

13

add various Administrative Procedures Act (APA) provisions, as well as

14

a Petition for Writ of Habeas Corpus. On April 25, 2017, this Court

15

issued an order granting Plaintiff’s Motion for Leave to File Amended

16

Complaint, finding that Plaintiff is “in custody” for the purpose of

17

demonstrating standing to bring a habeas corpus claim pursuant to 28

18

U.S.C. § 2241(c). This Court also issued an order granting Plaintiff’s

19

Motion for Preliminary Injunction, finding that Plaintiff is likely to

20

succeed

21

Judgment and that controlling precedent in the Ninth Circuit supports

22

the

23

jurisdiction to release Plaintiff from detention upon the posting of a

24

bond and did not support the Board of Immigration Appeals’ decision to

25

vacate the IJ’s order.

on

the

decision

of

merits

the

concerning

Immigration

26

4

his

request

Judge

who

for

found

a

Declaratory

that

he

had

On

May

17,

2017,

the

IJ

denied

Plaintiff’s

application

for

1

Withholding of Removal and relief under the U.N. Convention Against
2

Torture. Plaintiff timely appealed the IJ’s decision to the BIA.
3

On

October

11,

2017,

Plaintiff

filed

a

Motion

for

Summary

4

Judgment and on October 13, 2017, Defendants filed a Cross Motion for
5
6
7
8

Summary Judgment.
2018.

Oral argument was heard by the Court on January 12,

Defendants alerted the Court to a change in status of two cases

cited as authority in February 2018. 1

(Docs. 43, 44.)

9

STANDARD OF REVIEW

10

A party is entitled to summary judgment when the “pleadings,

11
12

depositions,

answers

to

interrogatories,

13

together with affidavits, if any, show that there is no genuine issue

14

as to any material fact and the moving party is entitled to a judgment

15

as a matter of law.” Fed.R.Civ.P.56(c). Material facts are those facts

16

that may affect the outcome of the case. Anderson v. Liberty Lobby,

17

Inc., 477 U.S. 242, 248 (1986). “At the summary judgment stage, facts

18

must be viewed in the light most favorable to the nonmoving party only

19

if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris,

20

550 U.S. 372, 380 (2007).

22

identifying

23

affidavits,

24

1

26

admissions

on

file,

The party moving for summary judgment bears the initial burden of

21

25

and

those
which

portions
demonstrate

of

the

the

pleadings,

absence

of

a

discovery,
genuine

issue

and
of

Marroquin-Perez v. Kelly, Case No. 17-17014 (District Court Case No.
2:17-CV-00366-PHX-JTT), voluntarily dismissed; Rodriguez v. Robbins
(“Rodriguez III”), 804 F.3d 1060 (9th Cir. 2015), on appeal to the
Supreme Court sub nom. Jennings v. Rodriguez, No. 15-1204, was
reversed and remanded to the Ninth Circuit Court of Appeals. Jennings
v. Rodriguez, 2018 WL 1054878 (S.Ct. Feb. 27, 2018).

5

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
1

“[W]hen the moving party has carried its burden under Rule 56(c), its
2

opponent must do more than simply show that there is some metaphysical
3

doubt as to material facts ...Where the record taken as a whole could
4

not lead a rational trier of fact to find for the nonmoving party,
5
6

there is ‘no genuine issue for trial.’” Scott, 550 U.S. at 380.
DISCUSSION

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Defendants argue that the fundamental issue in this matter is
whether Plaintiff - an alien who received an order of removal and was
removed, which order of removal was later reinstated after illegal
reentry, and is currently waiting for appellate review of his request

12

for withholding of removal and relief under CAT - was entitled to a

13

bond hearing before an IJ. Defendants’ position is that Plaintiff was

14

not entitled to such a hearing and that the BIA’s decision to vacate

15

the IJ’s order was correct. As a result, there is no valid order

16

authorizing Plaintiff’s release from custody. Defendants are therefore

17

entitled to re-detain Plaintiff.

18

Plaintiff argues that the Immigration Judge had jurisdiction,

19

pursuant to controlling Ninth Circuit precedent, to conduct a custody

20

redetermination hearing and order Plaintiff’s release from immigration

21

detention upon the posting of a $10,000 bond. This lawsuit ultimately

22

revolves around the question of whether Plaintiff was entitled to a

23

custody redetermination hearing before an Immigration Judge. Plaintiff

24

argues

25

Immigration Judge had jurisdiction to conduct such a hearing and that

that

the

evidence

unequivocally

26

6

establishes

that

the

Plaintiff

was

lawfully

released

from

immigration

detention

after

1

posting a bond.
2

The Court may grant a writ of habeas corpus to a detainee who is
3

“in custody in violation of the Constitution or laws or treaties of
4

the United States.” 28 U.S.C. § 2241(c)(3). As Plaintiff is currently
5
6
7
8

detained

11

this

Court’s

jurisdiction

and

asserts

that

his

continued detention violates due process, this Court has jurisdiction
over his claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Section

9
10

within

1231(a)

controls

the

detention

of

removable

aliens

“during” and “beyond” “the [statutory] removal period.” f a removal
order is reinstated, it is “reinstated from its original date and is

12

not

13

1231(a)(5). Additionally, “the alien is not eligible and may not apply

14

for any relief under this chapter, and . . . shall be removed under

15

the prior order at any time after the reentry.” Id. Plaintiff may seek

16

“an exception by which an alien who expresses ‘a fear of returning to

17

the

18

‘immediately’ referred to an asylum officer who must determine if the

19

alien has a reasonable fear of persecution or torture in accordance

20

with 8 C.F.R. 208.31.” Ortiz–Alfaro v. Holder, 694 F.3d 955, 956 (9th

21

Cir. 2012).

22

subject

country

Section

to

being

reopened

designated’

1231(a)

in

governs

or

his

reviewed.

reinstated

“detention,

.

.

.”

removal

release,

and

8

U.S.C.

order

removal

§

is

of

23

aliens ordered removed.” 8 U.S.C. § 1231(a). It is undisputed that

24

Plaintiff has been ordered removed pursuant to the reinstated removal

25

order. The question before the Court is whether the order of removal

26

7

is “administratively final.” This is not the first time the issue has
1

been addressed in this Circuit.
2

Plaintiff convincingly argues that his reinstated removal order
3

is not administratively final. Plaintiff relies on Ortiz–Alfaro v.
4

Holder, 694 F.3d 955 (9th Cir. 2012), to support his argument that his
5
6
7
8
9
10
11

reinstated

removal

order

is

not

administratively

final.

In

Ortiz-

Alfaro, the Plaintiff was also subject to a reinstated removal order
and requested withholding proceedings. An asylum officer determined
that Ortiz-Alfaro had not established a reasonable fear of persecution
or torture. Ortiz-Alfaro appealed directly to the Ninth Circuit and
argued the reinstatement regulations were unlawful. The Ninth Circuit

12

held that the reinstated removal order was not final for purposes of

13

judicial

14

Circuit

15

judicial review of a determination that he lacks a reasonable fear of

16

persecution could raise serious constitutional concerns.” (Id.) Thus,

17

the Court in Ortiz- Alfaro held: In order to preserve judicial review

18

over petitions challenging administrative determinations made pursuant

19

to 8 C.F.R. § 208.31(e) or (g), we hold that where an alien pursues

20

reasonable fear and withholding of removal proceedings following the

21

reinstatement of a prior removal order, the reinstated removal order

22

does not become final until the reasonable fear of persecution and

23

withholding

24

answered

the

25

judicial

review

26

discuss the issue of detention, or compare § 1231(a) with § 1226(a).

review
was

regarding

concerned

of

removal
question
of

his

his

that

withholding

“depriving

proceedings
of

whether

withholding

8

proceedings.

Ortiz

the

The

Ninth

opportunity

for

are

complete.

Id.

Ortiz-Alfaro

the

Plaintiff

was

entitled

decision.

Ortiz-Alfaro

did

to
not

Plaintiff

states

that

even

if

he

“is

detained

under

the

1

provisions of 8 U.S.C. § 1231, he is nevertheless entitled to a bond
2

hearing before an immigration judge.” Plaintiff argues that Diouf v.
3

Napolitano (“Diouf II”), 634 F.3d 1081 (9th Cir. 2011) requires a bond
4

hearing before an IJ when an alien’s detention becomes prolonged.
5
6
7
8
9
10

Defendants argue that nothing in § 1231(a)(6) itself or the applicable
regulations entitles Plaintiff to a bond hearing. Defendants further
argue that Diouf II did not address and does not apply to aliens
subject

to

reinstated

orders

of

removal

and

in

withholding-only

proceedings.
Based upon the clear language of Diouf II, this Court finds that

11
12

Plaintiff

is

entitled

13

Circuit addressed the due process requirements for prolonged detention

14

under § 1226(a) and § 1231(a)(6). The Ninth Circuit concluded that

15

because

16

determination

17

constitutional concerns,” aliens were entitled to a bond hearing after

18

six months. Diouf II, 634 F.3d at 1092. “We hold that an alien facing

19

prolonged detention under § 1231(a)(6) is entitled to a bond hearing

20

before

21

detention unless the government establishes that the alien poses a

22

risk of flight or a danger to the community.” Diouf II, 634 F.3d at

23

1092. This Court follows several other courts in the circuit finding

24

that

25

proceedings who faced prolonged detention. (Thus, this Court need not

26

address the applicability of relief under the APA.)

prolonged

an

Diouf

of

a

detention
flight

immigration

II

to

compels

of

hearing.

an

risk

judge

a

bond

and

and

bond

alien

is

Diouf

without

danger

entitled

hearing

9

In

for

an

would

to

II,

the

individualized
“raise

be

aliens

Ninth

serious

released

in

from

withholding

“Section

1231(a)(6)

encompasses

aliens

such

as

Diouf,

whose

1

collateral challenge to his removal order (a motion to reopen) is
2

pending

in

the

court

of

appeals,

as

well

as

to

aliens

who

have

3

exhausted all direct and collateral review of their removal orders but
4

who, for one reason or another, have not yet been removed from the
5
6
7
8

United

Defendants’

11

Diouf

arguments

II,
that

634

F.3d

attempt

to

at

1085

(emphasis

distinguish

added).

Plaintiff

from

Plaintiff Diouf fail in light of the clear language of Diouf II.
Defendants also argue that “an extension of Diouf II to aliens

9
10

States.”

subject

to

reinstatement

would”

conflict

with

the

Supreme

Court’s

decision in Zadvydas v. Davis, 533 U.S. 671 (2001). In Zadvydas, the

12

Supreme

Court

determined

13

under § 1231(a)(6), is entitled to a presumptively reasonable period

14

of detention of six months to bring about an alien’s removal from the

15

United States. Id. at 701. After this six-month period, an alien is

16

eligible for conditional release upon demonstrating that there is “no

17

significant

18

future.” Id. In Diouf II, the Ninth Circuit held that § 1231(a)(6)

19

prohibits prolonged detention without an individualized bond hearing,

20

extending

21

Homeland Sec., 535 F.3d 942 (9th Cir. 2008). In Casas-Castrillon, the

22

Court

23

protections would raise serious constitutional concerns,” id. at 950,

24

and accordingly held that mandatory detention under § 1226(c)does not

25

extend

26

concluded and who have obtained a judicial stay of removal pending

likelihood

its

previous

determined

to

that

of

removal

holding

“prolonged

individuals

the

whose

in

government,

in

the

reasonably

Casas-Castrillon

detention

without

proceedings

10

regarding

foreseeable

v.

adequate

before

the

detention

Dep’t

of

procedural

agency

have

judicial

review.

Id.

at

948.

Rather,

because

detention

for

such

1

individuals

is

necessarily

prolonged,

the

government’s

detention

2

authority

“shifts”

to

discretionary

detention

under§

1226(a),

and

3

requires

a

bond

hearing

where

the

government

bears

the

burden

to

4

justify continued detention.Id.at 947-48.
5

Diouf II expressly extended the holding of Casas-Castrillon to

6
7
8
9
10
11

individuals

detained

under

§

1231(a)(6),

requiring

that

they

too

receive a bond hearing after six months of detention. Diouf II, 634
F.3d at 1086. Applying the doctrine of constitutional avoidance, Diouf
II held that, as a matter of statutory law, an individual “facing
prolonged detention under § 1231(a)(6) is entitled to a bond hearing

12

before

an

immigration

13

detention unless the government establishes that the alien poses a

14

risk of flight or a danger to the community.” Diouf II, 634 F.3d

15

at1092.

16

categorically prolonged at six months. See id. at 1092 n.13 (“As a

17

general matter, detention is prolonged when it has lasted six months

18

and is expected to continue more than minimally beyond six months.”).

Diouf

II

judge

further

and

is

entitled

clarified

to

that

be

released

detention

from

becomes

The ultimate question is whether the U.S. Constitution allows

19
20

indefinite

detention

of

21

available

22

their

23

removed,

24

judicial review of his original removal order, and is eligible only

25

for Withholding of Removal or relief under the Convention Against

26

Torture

administrative

deportation.
illegally

does

The

aliens
and
fact

reentered

nothing

to

who

judicial
that
the

justify

11

are

lawfully

legal

structure

Plaintiff
United

his

accessing

has

States,

prolonged

to

been
has

the

challenge
previously

not

detention

sought

without

benefit of due process. As of this filing, Plaintiff’s applications
1

for Withholding of Removal and relief under the CAT remain pending.
2

Although Plaintiff’s application for Withholding of Removal and CAT
3

was

denied

by

the

IJ

on

May

17,

2017,

Plaintiff

exercised

his

4

statutory right of appeal, and his case is currently pending appellate
5
6
7
8
9
10
11

review with the Board of Immigration Appeals. Plaintiff was provided a
proper bond hearing under this legal framework and the BIA decision
vacating the IJ’s order was therefore improper. As such, the IJ’s
order

finding

jurisdiction

over

Plaintiff’s

case

and

granting

his

release on bond was lawful.
The reversal and remand of Jennings v. Rodriguez, 138 S.Ct. 830

12

(2018) does not impact this action.

13

Plaintiff’s habeas petition.

14

2011).

15

detained

16

specifically directed to § 1225, et seq.

17

is binding on this Court.

Singh v. Holder, 638 F.3d 1196 (9th Cir.

He was entitled under Diouf to a bond hearing.
under

§

1231(a)(6)

not

§

1225,

et

seq.

Plaintiff was
Jennings

was

Diouf remains good law and

ORDER

18
19

This Court has jurisdiction over

Plaintiff is thus entitled to habeas relief as a matter of law to

20

enjoin

Defendants

21

detention

22

deprivation of liberty.

23

1231(a).

24

before an immigration judge for a determination as to whether the

25

Government could establish that he should remain in detention because

26

he posed a risk of flight or is a danger to the community, which they

in

from

violation

Thus,

he

was

taking
of

Plaintiff

his

due

back

process

into

right

ICE

custody

against

or

unlawful

Plaintiff was detained pursuant to 8 U.S.C.
entitled

to

12

an

individualized

bond

hearing

did not establish.

Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011);

1

see also, Ayala v. Session, 855 F.3d 1012 (9th Cir. 2017); Ortiz-Alfaro
2

v. Holder, 694 F.3d 955, 958 (9th Cir. 2012).

Plaintiff is on bond

3

with conditions imposed that this Court will not disturb.

Plaintiff

4

will remain on bond until such time as the merits of his immigration
5
6
7
8
9
10
11

status are resolved.
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment
(Doc. 31)is GRANTED and the Defendants’ Motion for Summary Judgment
(Doc. 34) is DENIED.

Defendants are enjoined from re-detaining

Plaintiff based on the ruling of the BIA.

Plaintiff’s release from

custody and the terms of the release as ruled by the IJ remain in

12

effect.

13

a final order of removal, or as otherwise authorized by law. A Final

14

Judgment shall be entered separately by the Clerk’s Office reflecting

15

this Order.

16

Defendants may re-detain Plaintiff as necessary to effectuate

This action is closed.

Dated this 22nd day of March, 2018.

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