Milan-Rodriguez v. Lynch

Filing 39

FINDINGS and RECOMMENDATIONS to Deny Respondent's 24 Motion to Dismiss and Deny the Amended Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Amend Caption signed by Magistrate Judge Stanley A. Boone on 01/12/2018. Referred to Judge Ishii; Objections to F&R due by 2/15/2018.(Flores, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
JORGE ANTONIO MILAN-RODRIGUEZ,

10

Case No. 1:16-cv-01578-AWI-SAB-HC

Petitioner,

11

FINDINGS AND RECOMMENDATION TO
DENY RESPONDENT’S MOTION TO
DISMISS AND DENY THE AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS

v.

12

JEFFERSON B. SESSIONS,1

13

Respondent.

14

ORDER DIRECTING CLERK OF COURT
TO AMEND CAPTION

15
(ECF Nos. 20, 24)
16
Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of

17

18 habeas corpus pursuant to 28 U.S.C. § 2241.
19

I.

20

BACKGROUND
Petitioner is a citizen of Mexico who was brought to the United States by his parents

21

22 when he was approximately one year old. Petitioner was previously removed to Mexico in 2005,
2
23 2008, 2010, and 2013. (ECF No. 24-1 at 73, 75). On June 4, 2013, Petitioner made a false claim

24
25
26
27
28

1

Respondent relies on Rumsfeld v. Padilla, 542 U.S. 426, 435–36 (2004), for the proposition that only the warden
having custody over Petitioner is the proper respondent in this action. (ECF No. 24 at 1 n.1). However, Padilla
explicitly declined to resolve “the question whether the Attorney General is a proper respondent to a habeas petition
filed by an alien detained pending deportation,” 542 U.S. at 436 n.8, and no binding authority has since decided the
issue. The Court finds that the Attorney General is a proper respondent. See Thai v. Ashcroft, 366 F.3d 790, 790
(9th Cir. 2004) (amending caption to reflect that the Attorney General was the proper respondent in habeas action
that challenged an alien’s detention). Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Jefferson B.
Sessions has been automatically substituted as Respondent in this matter.
2
Page numbers refer to the ECF page numbers stamped at the top of the page.

1

1 to United States citizenship at the San Ysidro port of entry. On October 21, 2013, Petitioner was
2 convicted of a violation of 8 U.S.C. § 911. (Id. at 26).
On December 18, 2013, the Department of Homeland Security (“DHS”) issued a notice

3

4 to appear and charged Petitioner with being subject to removal for falsely representing himself to
5 be a United States citizen to gain entry to the United States, in violation of section
6 212(a)(6)(C)(ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(C)(ii).
7 (ECF No. 24-1 at 96). On August 4, 2014, an immigration judge denied Petitioner relief from
8 removal and ordered Petitioner removed to Mexico. (ECF No. 24-1 at 48). On November 20,
9 2014, the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal. (Id. at 21–24).
10 Petitioner has filed two petitions for review, which remain pending before the United States
11 Court of Appeals for the Ninth Circuit. On February 26, 2015, the Ninth Circuit granted
12 Petitioner a stay of removal. Order, Millan-Rodriguez v. Sessions, No. 14-73589 (9th Cir. Feb.
13 26, 2015), ECF No. 8.
Petitioner has been in the custody of U.S. Immigration and Customs Enforcement

14

15 (“ICE”) since December 3, 2013. (ECF No. 24-1 at 105). On January 6, 2016, Petitioner
16 appeared via video teleconference for a Rodriguez3 bond hearing. (ECF No. 24-1 at 88).
17 Petitioner was granted additional time to prepare for the hearing, and on January 20, 2016,
18 Petitioner and his wife testified in support of his request for release. (ECF No. 24-1 at 89, 73–
19 82). At the conclusion of the hearing, the immigration judge did not reach the question of
20 whether Petitioner was a danger to the community, but found Petitioner to be a flight risk and
21 ordered that he remain detained. (ECF No. 24-1 at 85). On February 17, 2016, the immigration
22 judge issued a written decision denying bond, finding that Petitioner was both a danger to the
23 community and a flight risk. (Id. at 14–17). On April 21, 2016, the BIA dismissed Petitioner’s
24 appeal of the bond proceeding. (Id. at 11–12).
25
3

Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v.

26 Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016) (mem.). On October 3, 2017, the case was reargued.
Docket

for

Case

No.

15-1204,

Supreme

Court

of

the

United
States,
(last visited
Dec. 19, 2017). Rodriguez III is controlling precedent in the Ninth Circuit until the Supreme Court issues its
decision. Rodriguez is discussed in more detail in section II(B), infra.

27 https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/15-1204.html
28

2

1

On May 5, 2016, Petitioner filed a petition for review regarding denial of bond in the

2 Ninth Circuit. (ECF No. 1). On October 19, 2016, the Ninth Circuit construed the petition for
3 review as an original petition for writ of habeas corpus and transferred the matter to this Court.
4 (ECF No. 4).
5

Meanwhile, on August 3, 2016, Petitioner received another Rodriguez bond hearing,

6 which was continued to August 24, 2016 at the request of Petitioner. (ECF No. 24-1 at 65–66).
7 At the end of the hearing, the immigration judge reserved his decision in light of the voluminous
8 documentation. (Id. at 61–62). On September 15, 2016, the immigration judge found “no new
9 material facts have emerged that materially alter this court’s conclusion that [Petitioner] should
10 be detained without bail.” (ECF No. 24-1 at 8–9).
11

On February 10, 2017, Petitioner filed an amended petition wherein Petitioner asserts: (1)

12 the immigration judge denied due process by failing to consider the length of Petitioner’s
13 detention when determining bond; (2) Petitioner was not provided comprehensive notice of his
14 January 6 and August 3, 2016 bond hearings; (3) the immigration judge erroneously concluded
15 that Petitioner’s strong “family ties give him incentive not to appear” for removal; (4)
16 Petitioner’s prolonged detention violates the Eighth Amendment’s prohibition against cruel and
17 unusual punishment; (5) Petitioner’s prolonged detention violates due process; (6) Petitioner’s
18 prolonged detention constitutes an increased penalty for his past convictions; (7) Petitioner’s
19 transfer to a facility in Louisiana violated his substantive due process rights and jeopardizes his
20 parental rights; and (8) loss of filial and parental consortium. (ECF No. 20 at 17–30).
21

On April 24, 2017, Respondent filed a motion to dismiss. (ECF No. 24). Petitioner has

22 filed an opposition. (ECF No. 27). Per the Court’s order, the parties also filed supplemental
23 briefing on Petitioner’s claims arising from his transfer to Louisiana. (ECF Nos. 33–35).
24

II.

25

DISCUSSION

26

A. Jurisdiction

27

“[A] federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review

28 [immigration] bond hearing determinations for constitutional claims and legal error.” Singh v.

3

1 Holder, 638 F.3d 1196, 1200 (9th Cir. 2011) (citing Demore v. Kim, 538 U.S. 510, 516–17
2 (2003)). “Although [8 U.S.C.] § 1226(e) restricts jurisdiction in the federal courts in some
3 respects, it does not limit habeas jurisdiction over constitutional claims or questions of law.”
4 Singh, 638 F.3d at 1202. Therefore, to the extent that the motion to dismiss asserts that this Court
5 lacks jurisdiction over the petition, the motion should be denied.
6

B. Due Process Claims

7

In Petitioner’s first, second, third, and fifth claims for relief, Petitioner asserts due

8 process violations stemming from his bond hearings, deficient notices, and prolonged detention.
9 (ECF No. 20 at 17, 24, 27).
10

1. Immigration Bond Hearings

11

An intricate statutory scheme governs the detention of noncitizens during removal

12 proceedings and after a final removal order is issued. “Where an alien falls within this statutory
13 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of
14 review process available to him if he wishes to contest the necessity of his detention.” Prieto15 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). “[I]n a series of decisions since 2001,
16 ‘the Supreme Court and [the Ninth Circuit] have grappled in piece-meal fashion with whether the
17 various detention statutes may authorize indefinite or prolonged detention of detainees and, if so,
18 may do so without providing a bond hearing.’” Rodriguez v. Robbins (Rodriguez II), 715 F.3d
19 1127, 1134 (9th Cir. 2013) (quoting Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th
20 Cir. 2010)).
21

The authority to detain a noncitizen whose removal has been stayed by a court of appeals

22 pending its disposition of his petition for review is found in 8 U.S.C. § 1226(a). Prieto-Romero,
23 534 F.3d at 1059. Section 1226(a) provides in pertinent part:
24
25
26
27
28

On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in
subsection (c) and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—

4

(A) bond of at least $1,500 with security approved by, and
containing conditions prescribed by, the Attorney General;

1
2

or
3
(B) conditional parole;
4
5 8 U.S.C. § 1226(a).
6

In Casas-Castrillon v. Department of Homeland Security (Casas), 535 F.3d 942 (9th Cir.

7 2008), the Ninth Circuit construed § 1226(a) as requiring a hearing and individualized
8 determination for a noncitizen subjected to prolonged detention as to whether continued
9 detention is necessary based on dangerousness or flight risk. Casas, 535 F.3d at 951.
10 Subsequently, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit
11 found that a noncitizen’s “detention is prolonged when it has lasted six months and is expected to
12 continue more than minimally beyond six months.” 634 F.3d at 1092 n.13. In Singh v. Holder,
13 638 F.3d 1196 (9th Cir. 2011), the Ninth Circuit provided guidance as to the procedural
14 requirements for the bond hearings. Specifically, “the government must prove by clear and
15 convincing evidence that an alien is a flight risk or a danger to the community to justify denial of
16 bond.” Id. at 1208. Due process also requires a contemporaneous record of the bond hearings,
17 such as a transcript or audio recording. Id.
18

In the Rodriguez class action, noncitizens “challenge[d] their prolonged detention

19 pursuant to 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond
20 hearings and determinations to justify their continued detention.” Rodriguez III, 804 F.3d at
21 1065. In Rodriguez II, the Ninth Circuit held that mandatory detention under § 1226(c) and
22 § 1225(b) is implicitly time-limited and expires after six months. Thereafter, the government’s
23 authority to detain shifts to § 1226(a), which requires a bond hearing governed by the procedural
24 requirements set forth in Singh. Rodriguez II, 715 F.3d at 1138–44. In Rodriguez III, the Ninth
25 Circuit held that for noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the
26 government must provide periodic bond hearings every six months so that noncitizens may
27 challenge their continued detention as ‘the period of . . . confinement grows.’” Rodriguez III, 804
28 F.3d at 1089 (quoting Diouf II, 634 F.3d at 1091).

5

1

To determine whether a noncitizen detained under § 1226(a) presents a flight risk or a

2 danger to the community, immigration judges should consider the factors set forth in In re
3 Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006). Singh, 638 F.3d at 1206. The Ninth Circuit has held
4 that immigration judges are required to consider restrictions short of incarceration in addition to
5 the length of time the noncitizen has already been detained. Rodriguez III, 804 F.3d at 1087–89.
6 Due process violations in immigration proceedings are subject to harmless error review. Prieto7 Romero, 534 F.3d at 1066 (citing Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994)).
8

2. Lack of “Comprehensive Record”

9

In the amended petition, Petitioner contests the constitutionality of his bond hearings.

10 Petitioner asserts that the immigration judge erred in denying bond “without a comprehensive
11 record.” (ECF No. 20 at 13). To support this assertion, Petitioner directs the Court’s attention to:
12 (1) the immigration judge incorrectly stating that a judge in Los Angeles denied Petitioner’s
13 asylum application when in fact the asylum proceedings were conducted in Florence, Arizona;
14 and (2) the immigration judge discovering at the January 20, 2016 hearing that ICE did not
15 reinstate Petitioner’s prior removal order.
16

Petitioner fails to demonstrate how he was prejudiced. See Prieto-Romero, 534 F.3d at

17 1066 (subjecting due process violations in immigration proceedings to harmless error review).
18 The fact that the immigration judge incorrectly stated that a judge in Los Angeles, rather than in
19 Florence, denied Petitioner’s asylum application had no bearing on the bond determination.
20 Additionally, the immigration judge’s realization at the January 20, 2016 hearing that ICE did
21 not reinstate Petitioner’s prior removal order for illegal reentry had no bearing on the bond
22 determination. “When an alien has unlawfully reentered the United States after being subject to a
23 prior order of removal, the INA allows the government to reinstate the prior order of removal
24 rather than undertake removal proceedings a second time.” Morales de Soto v. Lynch, 824 F.3d
25 822, 825 (9th Cir. 2016) (citing 8 U.S.C. § 1231(a)(5)). Here, the government elected to
26 undertake removal proceedings a second time and charged Petitioner with being subject to
27 removal for falsely representing himself to be a United States citizen to gain entry to the United
28 States. Petitioner does not explain how the immigration judge’s realization at the January hearing

6

1 that the government did not reinstate the prior removal order affected the bond determination.
2 Accordingly, Petitioner is not entitled to habeas relief based on this ground.
3

3. Transcript Errors

4

Petitioner asserts there are errors in the transcript of the January hearing. (ECF No. 20 at

5 14). Petitioner specifies two discrepancies between the transcript provided by the immigration
6 court and one transcribed by GMRTranscription.com. The discrepancies concern the discussion
7 of the reinstatement of Petitioner’s previous removal order. First, the GMR transcript is not in
8 the record before this Court. Second, as discussed supra, the fact that ICE did not reinstate
9 Petitioner’s previous removal order had no bearing on the bond determination. Therefore,
10 Petitioner fails to demonstrate how he was prejudiced by the alleged transcript errors. See Prieto11 Romero, 534 F.3d at 1066. Accordingly, Petitioner is not entitled to habeas relief on this ground.
12

4. Failure to Consider Length of Detention

13

In his first claim for relief, Petitioner asserts that he was denied due process because the

14 immigration judge did not explicitly state that the length of Petitioner’s detention was considered
15 in the bond determination. (ECF No. 20 at 17). The Ninth Circuit has held that an immigration
16 judge “must consider the length of time for which a non-citizen has already been detained” when
17 determining bond. Rodriguez III, 804 F.3d at 1089.
18

In the memorandum decision dated September 15, 2016, the immigration judge noted that

19 Petitioner had previously sought bond pursuant to Rodriguez and that Petitioner’s second
20 Rodriguez hearing occurred on August 24, 2016. Further, the immigration judge specifically
21 noted that “the mere passage of time also does not persuade the court that [Petitioner] poses any
22 less of a poor bail risk.” (ECF No. 24-1 at 8–9). Accordingly, the Court finds that the
23 immigration judge considered the length of Petitioner’s detention in the bond determination. See
24 Gomez-Ochoa v. Lynch, No. CV-16-01646-PHX-JJT (BSB), 2017 WL 913597, at *9 (D. Ariz.
25 Feb. 8, 2017) (finding consideration of length of petitioner’s detention when immigration judge
26 discussed Rodriguez III requirement that bond hearing must be held after petitioner has been
27 detained for more than six months). Based on the foregoing, Petitioner is not entitled to habeas
28 relief on his first claim, and it should be denied.

7

1

5. Notice

2

In his second claim for relief, Petitioner asserts that he was denied due process by not

3 being provided comprehensive notice of his January 6, 2016 and August 3, 2016 bond hearings.
4 (ECF No. 20 at 24). Petitioner fails to demonstrate how he was prejudiced by the alleged lack of
5 notice for these hearings. See Prieto-Romero, 534 F.3d at 1066. Petitioner was granted
6 continuances so that he could have adequate time to prepare for the hearings, and the
7 immigration judge personally notified Petitioner of the time and date of the continued hearings.
8 (ECF No. 24-1 at 66, 89). Accordingly, Petitioner is not entitled to habeas relief on his second
9 claim, and it should be denied.
10

6. Conclusion Regarding Family Ties

11

In his third claim for relief, Petitioner challenges the immigration judge’s conclusion that

12 Petitioner’s strong family ties in the United States give Petitioner incentive not to appear for
13 removal. (ECF No. 20 at 25). “An Immigration Judge has broad discretion in deciding the factors
14 that he or she may consider in custody redeterminations. The Immigration Judge may choose to
15 give greater weight to one factor over others, as long as the decision is reasonable.” Guerra, 24 I.
16 & N. Dec. at 40. See Singh, 638 F.3d at 1206 (applying analysis in Guerra to hearings held under
17 Casas on related points of law). The Ninth Circuit has recognized that “[a]s an alien’s hopes of
18 setting aside a removal order fade, the risk of flight may increase.” Diouf II, 624 F.3d at 1088.
19 Here, the immigration judge acknowledged Petitioner’s long odds for relief, and found that
20 Petitioner’s strong ties to family, who reside in the United States, give him incentive not to
21 appear for removal. The Court finds the immigration judge’s conclusion was not unreasonable.
22 Accordingly, Petitioner is not entitled to habeas relief on his third claim, and it should be denied.
23

7. Prolonged Detention

24

In his fifth claim for relief, Petitioner asserts that his prolonged detention violates the Due

25 Process Clause. (ECF No. 20 at 27). In support of this argument, Petitioner appears to rely on
26 Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 (2003).
27

Zadvydas concerned 8 U.S.C. § 1231(a)(6), which governs detention beyond the ninety-

28 day removal period. The Supreme Court held that § 1231(a)(6) does not authorize indefinite

8

1 detention and “limits an alien’s post-removal-period detention to a period reasonably necessary
2 to bring about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. Here, the
3 Ninth Circuit has stayed Petitioner’s removal pending its review of the removal order. As the
4 Ninth Circuit has not issued a final order, the removal period has not commenced. 8 U.S.C. §
5 1231(a)(1)(B)(ii). Further, unlike the Zadvydas petitioners whose “removal could not be
6 effectuated because their designated countries either refused to accept them or the United States
7 lacked a repatriation treaty with the receiving country,” Petitioner “is not stuck in a ‘removable8 but-unremoveable limbo.’” Prieto-Romero, 534 F.3d at 1062, 1063 (citing Zadvydas, 533 U.S. at
9 684–86). Petitioner does not allege that Mexico lacks a repatriation treaty with the United States
10 or that Mexico will refuse to accept him in the event Petitioner is unsuccessful in challenging his
11 removal. In fact, Petitioner previously has been removed to Mexico. (ECF No. 24-1 at 73, 75).
12

Demore concerned 8 U.S.C. § 1226(c), which proscribes mandatory detention for

13 noncitizens convicted of certain crimes. In upholding mandatory detention under § 1226(c), the
14 Supreme Court affirmed its “longstanding view that the Government may constitutionally detain
15 deportable aliens during the limited period necessary for their removal proceedings.” Demore,
16 538 U.S. at 526. Demore distinguished Zadvydas by “stress[ing] that detention under § 1226(c)
17 has ‘a definite termination point’ and typically ‘lasts for less than the 90 days we considered
18 presumptively valid in Zadvydas.’” Rodriguez III, 804 F.3d at 1068 (quoting Demore, 538 U.S.
19 at 529). Here, however, Petitioner is being detained pursuant to § 1226(a).
20

Prolonged detention is not per se unconstitutional. Rather, “prolonged detention without

21 adequate procedural protections would raise serious constitutional concerns.” Casas, 535 F.3d at
22 950 (emphasis added). As discussed above, Petitioner has received adequate procedural
23 protections. Accordingly, Petitioner is not entitled to habeas relief on his fifth claim, and it
24 should be denied.
25

C. Eighth Amendment Claim

26

In his fourth and sixth claims for relief, Petitioner asserts that his prolonged detention

27 constitutes an “increased penalty for [his] past convictions” and is sufficiently punitive to trigger
28 a constitutional proportionality review under the Eighth Amendment. (ECF No. 20 at 27, 25).

9

1 Courts have consistently recognized that the removal process is a civil proceeding and not
2 criminal punishment. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (“A deportation
3 proceeding is a purely civil action to determine eligibility to remain in this country, not to punish
4 an unlawful entry . . . .”); Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002) (“It is well
5 established that deportation proceedings are civil, rather than criminal, in nature.”). Petitioner is
6 not entitled to habeas relief on the ground that his immigration detention constitutes an increased
7 penalty for his past convictions and violates the Eighth Amendment’s prohibition against cruel
8 and unusual punishment. Accordingly, Petitioner’s fourth and sixth claims should be denied.
9
10

D. Parental Rights Claims
Petitioner’s seventh and eighth claims for relief concern his parental rights. In his seventh

11 claim for relief, Petitioner asserts that his transfer to a detention facility in Louisiana violated his
12 substantive due process rights and jeopardized his parental rights. Petitioner “alleges that his
13 transfer disrupted the family integrity and inadvertently denied him visitation from his family
14 and children.” (ECF No. 20 at 28). In his eighth claim for relief, Petitioner alleges “loss of filial
15 and parental consortium actually and proximately caused by his prolonged detention.” (ECF No.
16 20 at 30). Respondent argues that these claims are moot because Petitioner is currently located at
17 a facility where his family can visit him and he can defend his parental rights. Further, the
18 Attorney General’s decision as to the appropriate detention facility is discretionary and not
19 subject to judicial review. (ECF No. 34 at 1–2).
20

From April 15, 2015 to September 22, 2016, Petitioner was detained at the Mesa Verde

21 Detention Facility in Bakersfield, California, where he received periodic visits from his family
22 and children. (ECF No. 20 at 28; ECF No. 24-1 at 105). Petitioner was then transferred to the
23 Pine Prairie Correctional Center in Pine Prairie, Louisiana, where he remained until March 30,
24 2017. Thereafter, Petitioner was transferred back to the Mesa Verde Detention Facility, where he
25 is currently detained. (ECF No. 24-1 at 105).
26

While Petitioner’s removal proceeding was ongoing, Petitioner’s wife filed for divorce.

27 (ECF No. 20 at 71–74; ECF No. 33 at 4). A mandatory trial setting and settlement conference
28 was scheduled for April 19, 2017, approximately twenty days after Petitioner was transferred

10

1 back to Bakersfield. (ECF No. 27 at 44–45; ECF No. 33 at 4). Although Petitioner wrote at least
2 two letters to ICE officials regarding the mandatory trial setting and settlement conference,
3 Petitioner did not appear for the conference on April 19, 2017, and allegedly did not appear a
4 second time.4 (ECF No. 27 at 39–41; ECF No. 33 at 4). On May 24, 2017, a judgment of
5 dissolution was entered in the Orange County Superior Court Lamoreaux Justice Center. (ECF
6 No. 33 at 25). The judgment states that the contested dissolution proceeding was heard on May
7 11, 2017, and that both parties were present in court. (Id. at 26). Attached to the judgment was a
8 child custody order, which awarded legal and physical custody to Petitioner’s wife. (Id. at 28).
In his supplemental brief, Petitioner states that since the Court’s August 4, 2017 order for

9

10 supplemental briefing, there has been compliance with ICE’s directive entitled “Facilitating
11 Parental Interests in the Course of Civil Immigration Enforcement Activities.”5 For example,
12 Petitioner has been assisted with a telephonic appearance for a mediation appointment and
13 provided transportation to a court date at the Lamoreaux Justice Center where the judge vacated
14 the prior order terminating Petitioner’s parental rights. (ECF No. 33 at 5).
15

1. Mootness

16

Article III of the United States Constitution limits the jurisdiction of federal courts to

17 “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477
18 (1990). “This case-or-controversy requirement subsists through all stages of federal judicial
19 proceedings,” which “means that, throughout the litigation, the plaintiff ‘must have suffered, or
20 be threatened with, an actual injury traceable to the defendant and likely to be redressed by a
21 favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S.
22 at 477).
Respondent argues that Petitioner’s claims regarding the transfer are moot because

23

24 Petitioner is currently located at a facility where his family can visit him and he can defend his
25
4

It is unclear when Petitioner did not appear a second time. Petitioner states that it occurred exactly four days after

26 Petitioner filed his surreply brief with the Court. (ECF No. 33 at 4). It is not clear to the Court what document
27
28

Petitioner is referencing.
5
United States Immigration and Customs Enforcement Directive 11064.1, Facilitating Parental Interests in the
Course
of
Civil
Immigration
Enforcement
Activities
(Aug.
23,
2013),
available
at
https://www.ice.gov/doclib/detention-reform/pdf/parental_interest_directive_signed.pdf (last visited Dec. 19, 2017).

11

1 parental rights. (ECF No. 34 at 2–3). The standard the Supreme Court has “announced for
2 determining whether a case has been mooted by the defendant’s voluntary conduct is stringent:
3 ‘A case might become moot if subsequent events made it absolutely clear that the allegedly
4 wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth, Inc. v.
5 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v.
6 Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)). Here, the voluntary cessation
7 exception applies because the allegedly wrongful behavior—transfer to a distant facility that
8 purportedly interferes with the right to family integrity—could occur at any time, and the
9 government has offered no assurance that Petitioner will not be transferred. See Diouf II, 634
10 F.3d at 1084 n.3.
11

2. Jurisdiction

12

Respondent also argues that the Attorney General’s authority under 8 U.S.C.

13 § 1231(g)(1) to determine the appropriate place of detention is discretionary and not subject to
14 judicial review. (ECF No. 34 at 3). In support of this argument, Respondent cites to, inter alia,
15 Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985). In Rios-Berrios, the petitioner was
16 apprehended in California, charged with entry without inspection, and moved to Florida for a
17 deportation hearing that was scheduled to begin effectively five working days from the time of
18 his apprehension. The immigration judge twice continued the hearing for a total of two working
19 days, first after the petitioner stated that he needed time to find an attorney and again after being
20 informed that the petitioner had called a friend who had been in contact with an attorney and bail
21 bondsman. After the immigration judge granted the continuances, he also advised that the
22 hearing would proceed with or without counsel. When the petitioner appeared without counsel,
23 there was no inquiry regarding the petitioner’s expressed wish to be represented by counsel and
24 the hearing went forward. Rios-Berrios, 776 F.2d at 860–61.
25

The Ninth Circuit found a violation of the petitioner’s right to be represented by counsel

26 of his own choice at his own expense, holding that the immigration judge’s grant of
27 continuances, “which amounted to little more than two working days’ time, was an abuse of
28 discretion,” given that “[t]he petitioner was in custody, spoke only Spanish, had limited

12

1 education, was unfamiliar with this county and its legal procedures, and had been removed
2 nearly 3,000 miles from his only friend in this country.” Rios-Berrios, 776 F.2d at 862–63.
3 However, the Ninth Circuit clarified:
4

We wish to make ourselves clear. We are not saying that the
petitioner should not have been transported to Florida. That is
within the province of the Attorney General to decide. 8 U.S.C. §
1252(c). We merely say that his transfer there, combined with the
unexplained haste in beginning deportation proceedings, combined
with the fact of petitioner’s incarceration, his inability to speak
English, and his lack of friends in this country, demanded more
than lip service to the right of counsel declared in statute and
agency regulations, a right obviously intended for the benefit of
aliens in petitioner’s position.

5
6
7
8
9

10 Rios-Berrios, 776 F.2d at 863.
Also instructive are two subsequent Ninth Circuit cases concerning injunction requests to

11

12 restrict the Attorney General’s discretion to choose appropriate places for detention on the basis
13 that transfers to remote immigration detention facilities effectively deprived the plaintiffs of the
14 right to counsel. In Committee of Central American Refugees v. INS (CRECE), 795 F.2d 1434
15 (9th Cir.), amended by 807 F.2d 769 (9th Cir. 1986), the Ninth Circuit affirmed the district
16 court’s denial of a preliminary injunction to prohibit the transfer of members of a class of
17 deportable aliens out of the San Francisco district and to direct the transfer of named individuals
18 detained elsewhere back to the San Francisco district. The Ninth Circuit found that the class did
19 not have a fair chance of success on the merits because “plaintiffs’ transfers did not interfere
20 with any established attorney-client relationship. Nor has it yet been shown that the transfers
21 effectively denied access to counsel.” Id., 807 F.2d at 770. Conversely, in Orantes-Hernandez v.
22 Thornburgh, 919 F.2d 549 (9th Cir. 1990), the Ninth Circuit affirmed the district court’s
23 permanent injunction that imposed certain limitations6 on the Attorney General’s discretion to
24 transfer detainees. The Ninth Circuit distinguished CRECE, noting that the plaintiffs had shown
25 interference in established attorney-client relationships. Id. at 566.
26
27
28

6

In pertinent part, the district court ordered that “Defendants shall not transfer detained class members who are
unrepresented by counsel from the district of their apprehension for at least seven (7) days to afford class members
the opportunity to obtain counsel.” Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1513 (C.D. Cal. 1988).

13

1

The Court does not question that the Attorney General has discretion to determine the

2 appropriate place of detention. Based on the foregoing Ninth Circuit decisions, however, the
3 Court may review claims that the Attorney General’s exercise of discretion resulted in the
4 deprivation of a constitutional or statutory right. Accordingly, the Court finds that it has
5 jurisdiction to address Petitioner’s claims.
6

3. Analysis

7

The Court has been unable to find a Ninth Circuit case that addresses the specific issue of

8 whether immigration detention and transfers violate the substantive due process right to family
9 integrity. However, there is a First Circuit case that the Court finds instructive and persuasive.
10 Aguilar v. U.S. Immigration & Customs Enforcement Division of the Department of Homeland
11 Security, 510 F.3d 1 (1st Cir. 2007), involved hundreds of undocumented aliens who were
12 detained following a raid on a factory in Massachusetts. Due to a shortage of bed space in
13 Massachusetts, ICE transported a substantial number of the detainees to distant locations, such as
14 Texas. Id. at 6. The Aguilar class alleged that ICE’s actions violated, inter alia, their substantive
15 due process rights of family integrity and of parents to make decisions as to the care, custody,
16 and control of their children. Id. at 7, 18–19. In finding that there was no violation of the class’s
17 substantive due process rights, the First Circuit stated:
18
19
20
21
22
23
24
25
26
27
28

Our thinking is influenced by a realization that the evenhanded enforcement of the
immigration laws, in and of itself, cannot conceivably be held to violate
substantive due process. See Payne–Barahona, 474 F.3d at 2; de Robles v. INS,
485 F.2d 100, 102 (10th Cir. 1973). Any interference with the right to family
integrity alleged here was incidental to the government’s legitimate interest in
effectuating detentions pending the removal of persons illegally in the country.
See Demore, 538 U.S. at 523, 123 S.Ct. 1708 (recognizing “detention during
deportation proceedings as a constitutionally valid aspect of the deportation
process”).
This is critically important because every such detention of a parent, like every
lawful arrest of a parent, runs the risk of interfering in some way with the parent’s
ability to care for his or her children. See Payne–Barahona, 474 F.3d at 3. That a
detention has an impact on the cohesiveness of a family unit is an inevitable
concomitant of the deprivation of liberty inherent in the detention itself. So long
as the detention is lawful, that so-called deprivation of the right to family integrity
does not violate the Constitution.
We hold, therefore, that such an incidental interference, standing alone, is not of
constitutional magnitude. To rule otherwise would risk turning every lawful
detention or arrest of a parent into a substantive due process claim. That would
14

1

place new and unprecedented constraints on law enforcement activities. Such
constraints would be unwarranted.

2
...
3
4
5
6

We see the matter this way. Although the interest of parents in the care, custody,
and control of their offspring is among the most venerable of the liberty interests
protected by the Fifth Amendment, see, e.g., Troxel, 530 U.S. at 65, 120 S.Ct.
2054; Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12, 20 (1st
Cir. 2001), the petitioners have not demonstrated that this guarantee of
substantive due process encompasses their assertions. After all, the right to family
integrity has been recognized in only a narrow subset of circumstances.

7
8
9
10
11
12
13
14
15
16
17
18

To be sure, the petitioners cite cursorily to cases that deal with this right but they
conspicuously fail to build any bridge between these cases and the facts that they
allege. We do not think that this is an accident. The petitioners’ claims seem
markedly different from those scenarios that courts heretofore have recognized
under the rubric of family integrity. They have not alleged that the government
has interfered permanently with their custodial rights. See, e.g., Stanley v. Illinois,
405 U.S. 645, 649, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Nor have they alleged
that the government has meddled with their right to make fundamental decisions
regarding their children’s education, see, e.g., Meyer v. Nebraska, 262 U.S. 390,
400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), or religious affiliation, see, e.g.,
Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
Taken most favorably to the petitioners, the interference alleged here is transitory
in nature and in no way impinges on parental prerogatives to direct the upbringing
of their children.
We have scoured the case law for any authority suggesting that claims similar to
those asserted here are actionable under the substantive component of the Due
Process Clause, and we have found none. That chasm is important because, given
the scarcity of “guideposts for responsible decisionmaking in this unchartered
area,” courts must be “reluctant to expand the concept of substantive due
process.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138
L.Ed.2d 772 (1997) (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112
S.Ct. 1061, 117 L.Ed.2d 261 (1992)).

19
20 Id. at 22–24 (footnote omitted).
21

While the First Circuit applies the “shocks the conscience” test with respect to

22 substantive due process rights involving family integrity, Aguilar, 510 F.3d at 21–22, the Ninth
23 Circuit has issued conflicting decisions regarding the standard it applies. Compare Marsh v. Cty.
24 of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (To violate the “well-established substantive
25 due process right to family integrity,” “the alleged conduct must ‘shock[] the conscience’ and
26 ‘offend the community’s sense of fair play and decency.’”) with Crowe v. Cty. of San Diego,
27 608 F.3d 406, 441 n.23 (9th Cir. 2010) (“The standard for deprivation of familial companionship
28 is ‘unwarranted interference,’ not conduct which ‘shocks the conscience.’”). Regardless of the

15

1 governing standard, the Court finds that a conclusion different from Aguilar is not warranted.
2

As discussed supra, Petitioner’s detention is lawful. There is nothing in the record to

3 indicate that Petitioner’s transfer was irregular or anything other than an ordinary incident of
4 immigration detention. Additionally, like the petitioners in Aguilar, Petitioner’s “claims seem
5 markedly different from those scenarios that courts heretofore have recognized under the rubric
6 of family integrity.” 510 F.3d at 23. In support of his claim, Petitioner cites to Supreme Court
7 cases that acknowledge that “[t]he integrity of the family unit has found protection in the Due
8 Process Clause of the Fourteenth Amendment,” Stanley v. Illinois, 405 U.S. 645, 651 (1972),
9 and recognize the “liberty interest . . . of parents in the care, custody, and control of their
10 children,” Troxel v. Granville, 530 U.S. 57, 65 (2000). However, the facts and holdings of these
11 cases are far removed from the claims raised by Petitioner in the instant petition. Stanley
12 concerned an unwed father whose children became wards of the state upon the death of their
13 mother based on a conclusive presumption that unwed fathers are unfit to raise their children.
14 405 U.S. at 646–47. The Supreme Court held that due process required “a hearing on [Stanley’s]
15 fitness as a parent before his children were taken from him and that, by denying him a hearing
16 and extending it to all other parents whose custody of their children is challenged, the State
17 denied Stanley the equal protection of the laws.” Id. at 649. Troxel found unconstitutional a state
18 statute that “in practical effect” authorized a court to “disregard and overturn any decision by a
19 fit custodial parent concerning visitation whenever a third party affected by the decision files a
20 visitation petition, based solely on the judge’s determination of the child’s best interests.” 530
21 U.S. at 67.
22

The Court recognizes the burden Petitioner’s immigration proceedings and prolonged

23 detention has placed on his family and is sympathetic to his situation. However, no authority has
24 been presented to this Court that holds an immigration detainee has a due process right to be
25 placed in a facility near his family in order to facilitate visitation. Petitioner was placed in
26 Louisiana for approximately six months and has since been transferred back to a facility in
27 Bakersfield where his family had previously been able to visit him. Additionally, Petitioner has
28

16

1 not alleged that government action resulted in termination of his parental rights 7 or interfered
2 with his right to make fundamental decisions regarding his children’s upbringing. Following
3 Aguilar, incidental interference with Petitioner’s familial relationship due to lawful immigration
4 detention does not warrant habeas relief or a transfer to a detention facility in Orange County,
5 California.
6

III.

7

RECOMMENDATION AND ORDER
Accordingly, IT IS HEREBY RECOMMENDED that:

8

1. Respondent’s motion to dismiss (ECF No. 24) be DENIED; and

9

2. The amended petition for writ of habeas corpus (ECF No. 20) be DENIED.

10

Further, the Clerk of Court is DIRECTED to amend the caption in this matter to reflect

11

12 the name of Jefferson B. Sessions as Respondent.
This Findings and Recommendation is submitted to the assigned United States District

13

14 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
15 Rules of Practice for the United States District Court, Eastern District of California. Within
16 THIRTY (30) days after service of the Findings and Recommendation, any party may file
17 written objections with the court and serve a copy on all parties. Such a document should be
18 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
19 objections shall be served and filed within fourteen (14) days after service of the objections. The
20 assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
21 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
22 ///
23 ///
24 ///
25 ///
26
27
28

7

As discussed in section IV(D), supra, attached to Petitioner’s marriage dissolution judgment was a child custody
order, which awarded legal and physical custody to Petitioner’s wife. (ECF No. 33 at 28). However, the custody
order was subsequently vacated. (ECF No. 33 at 5).

17

1 waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839
2 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
3
4

IT IS SO ORDERED.

5 Dated:

January 12, 2018
UNITED STATES MAGISTRATE JUDGE

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

18