Bahena v. Aitken et al
Filing
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ORDER SUPPLEMENTING FINDINGS and RECOMMENDATIONS in Light of Intervening Case Law 9 , signed by Magistrate Judge Jennifer L. Thurston on 7/20/17: 21-Day Objection Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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AHUIZOTL MENDOZA BAHENA,
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Petitioner,
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No. 1:17-cv-00145-DAD-JLT (HC)
ORDER SUPPLEMENTING FINDINGS
AND RECOMMENDATIONS IN LIGHT
OF INTERVENING CASE LAW
v.
(Doc. 9)
TIMOTHY AITKEN, et al.,
21-DAY OBJECTION DEADLINE
Respondents.
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Petitioner is currently detained by the Bureau of Immigration and Customs Enforcement
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(ICE) in “withholding-only” proceedings following a final order of removal. On June 28, 2017,
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the undersigned issued Findings and Recommendation to grant in part and deny in part the
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petition for writ of habeas corpus. Specifically, the undersigned recommended that Petitioner’s
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request for immediate release be denied, but Respondents be ordered to provide Petitioner with a
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bond hearing before an Immigration Judge. (Doc. No. 9.) This Findings and Recommendation
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was served upon all parties and contained notice that any objections were to be filed within
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twenty-one days from the date of service of that order.
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On July 14, 2017, Respondents filed objections to the Findings and Recommendation.
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(Doc. No. 10.) Respondents note that subsequent to the issuance of the Findings and
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Recommendation, the Ninth Circuit issued a decision in Padilla-Ramirez v. Bible, No. 16-35385,
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2017 WL 2871513 (9th Cir. 2017). Respondents claim that Padilla-Ramirez bears directly on the
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issues presented here. Respondents argue that Padilla-Ramirez holds that detainees such as the
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petitioner who are in withholding-only proceedings are detained pursuant to 8 U.S.C. § 1231(a)
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and are therefore not entitled to a bond hearing before an Immigration Judge. Respondents claim
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that the Findings and Recommendation is now contrary to Ninth Circuit precedent. The Court
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does not find Respondents’ arguments persuasive.
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As Respondents correctly state, Padilla-Ramirez answered the question as to which statute
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governed the detention of individuals in withholding-only proceedings. As Respondents had
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argued and as was determined in the Findings and Recommendation, the correct statute is 8
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U.S.C. § 1231(a). Id. at *4. However, Padilla-Ramirez does not address the specific issue here:
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whether the petitioner, who has been subjected to prolonged detention, is entitled to a bond
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hearing.
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In Padilla-Ramirez, the petitioner requested a bond hearing before an Immigration Judge
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pursuant to 8 C.F.R. § 236.1(d)(1). Section 236.1 of Title of the Code of Federal Regulations
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governs the detention of aliens prior to an order of removal, and among other things, provides for
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bond hearings. However, as noted in Padilla-Ramirez, “[t]he bond hearing authorized under 8
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C.F.R. § 236.1 does not apply to detentions authorized under section 1231(a).” 2017 WL
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2871513, *2. Since Padilla-Ramirez was detained pursuant to § 1231(a), and not § 1226(a), the
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Ninth Circuit rejected his request for a bond hearing under § 1226(a). Id. The appellate court
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specifically limited its decision to “only address[] Padilla-Ramirez’s entitlement to an initial bond
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hearing under 8 C.F.R. § 236.1.” Id. The Ninth Circuit stated that its decision did “not address
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Padilla-Ramirez’s entitlement to a bond hearing after prolonged detention.” Id. The court
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reaffirmed its decision in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), that
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“’individuals detained under § 1231(a)(6) are entitled to the same procedural safeguards against
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prolonged detention as individuals detained under § 1226(a).’” Padilla-Ramirez, 2017 WL
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2871513, *2 (quoting Diouf II, 634 F.3d at 1084).
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Unlike Padilla-Ramirez, Petitioner is not seeking a bond hearing under 8 C.F.R. § 236.1.
Rather, as discussed in the Findings and Recommendation, he is subject to a final order of
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removal and has been detained for over a year beyond the 90-day removal period. Accordingly,
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he is detained under § 1231(a)(6) pursuant to the Department of Homeland Security’s
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discretionary authority. Following other courts in the circuit, and for the reasons set forth in the
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Findings and Recommendation of June 28, 2017, the Court continues to recommend that
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Petitioner be given a bond hearing before an Immigration Judge, and unless the government
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establishes that he poses a risk of flight or a danger to the community, he be released from
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detention. See Herrera v. United States Attorney Gen., 2017 WL 2963569, at *1 (D. Ariz. May
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11, 2017), report and recommendation adopted sub nom., Ana Silvia Cortes Herrera v. United
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States Attorney Gen., 2017 WL 2957798 (D. Ariz. July 11, 2017) (holding that detainee who had
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been subject to detention longer than six months was entitled to bond hearing); Guardado-
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Quevara v. Lynch, 2016 WL 4136547, at * 4 (D. Ariz. June 27, 2016), report and
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recommendation adopted, 2016 WL 4074113 (D. Ariz. August 1, 2016) (concluding that
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petitioner in withholding proceedings was entitled to a bond hearing); Gonzalez v. Asher, 2016
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WL 871073, at *3 (W.D. Wash. Feb. 16, 2016), report and recommendation adopted, 2016 WL
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865351 (W.D. Wash. Mar. 7, 2016) (finding that petitioner “is entitled to a bond hearing under
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either § 1226(a) or § 1231(a)” under Diouf II because he “has been detained by ICE for more than
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six months and his detention is likely to continue until his withholding-only proceedings are
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concluded”); Acevedo-Rojas v. Clark, 2014 WL 6908540, at *6 (W.D. Wash. Dec. 8, 2014)
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(concluding that a petitioner with a reinstated removal order and in withholding proceedings was
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detained under § 1231(a) detention and was entitled to bond hearing at six months as required by
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Diouf II); Giron-Castro v. Asher, 2014 WL 8397147, at *3 (W.D. Wash. Oct. 2, 2014) (same).
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ORDER
For the foregoing reasons, the Findings and Recommendation issued on June 28, 2017, is
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SUPPLEMENTED. The Court makes the same recommendation: 1) that the petition be
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GRANTED IN PART and DENIED IN PART; 2) that Respondents’ motion to dismiss be
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GRANTED IN PART and DENIED IN PART; 3) that an order of release be DENIED
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WITHOUT PREJUDICE; and 4) that Respondents be required to provide Petitioner with a bond
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hearing before an Immigration Judge.
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Within twenty-one days after being served with a copy of this Findings and
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Recommendation, any party may file written objections with the Court and serve a copy on all
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parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Replies to the Objections shall be served and filed within ten court days (plus
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three days if served by mail) after service of the Objections. The Court will then review the
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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the Order of the
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District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
July 20, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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