ARAGON TRINIDAD v. Sessions et al

Filing 18

ORDER RE PETITION FOR BOND HEARING. Signed by Judge James Donato on 4/30/2018. (jdlc3S, COURT STAFF) (Filed on 4/30/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FELIPE ARAGON TRINIDAD,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 3:17-cv-06877-JD
ORDER RE PETITION FOR BOND
HEARING

v.
JEFF SESSIONS, et al.,

Re: Dkt. No. 1

Defendants.
Petitioner Felipe Aragon Trinidad is a citizen of Mexico who has been in the custody of

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the Immigration and Customs Enforcement division of the Department of Homeland Security

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(“ICE”) since November 2016. Dkt. No. 1 at 1-3. In this Section 2241 petition under the habeas

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corpus statute, he seeks a bond hearing before an immigration judge (“IJ”). This Court joins other

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courts in this district to hold that Trinidad is entitled to a hearing.

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The material facts are not in dispute. An IJ issued an order of removal against Trinidad in

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July 2005. See Dkt. No. 8-1 Exh. B. ICE arrested Trinidad in November 2016 for illegal re-entry

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after removal and reinstated the July 2005 removal order pursuant to 8 U.S. Code Section

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1231(a)(5). Dkt. No. 8 at 4. Trinidad expressed a credible fear of returning to his native Mexico,

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which initiated withholding-only proceedings. Id.; see generally Lanza v. Ashcroft, 389 F.3d 917,

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933 (9th Cir. 2004) (“a grant of an alien’s application for withholding [under 8 U.S.C. §

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1231(b)(3)(A)] . . . only prohibits removal of the petitioner to the country of risk, but does not

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prohibit removal to a non-risk country”) (internal quotation omitted).

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In January 2017 and again in May 2017, ICE conducted custody reviews and concluded

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that Trinidad should be detained pending resolution of his withholding-only proceedings. Dkt.

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No. 8-1 Ex. E. Trinidad moved for a bond redetermination hearing before an IJ. His request was

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denied in May 2017 by the IJ, who concluded that he lacked jurisdiction to conduct the hearing.

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Dkt. No. 1 at 4. Trinidad did not appeal the denial to the Board of Immigration Appeals. Dkt. No.

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8 at 4. In November 2017, the IJ denied Trinidad’s application for withholding of removal. Id.

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Trinidad timely appealed the decision in December 2017 to the Board of Immigration Appeals,

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and the appeal is pending. Id. at 5.

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In November 2017, Trinidad filed a petition for a writ of habeas corpus under 18 U.S.

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Code Section 2241 seeking an order from the Court requiring that Trinidad receive periodic

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custody redetermination hearings before an immigration judge. Dkt. No. 1 at 6. This Court has

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jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (Ҥ 2241 habeas corpus proceedings

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remain available as a forum for statutory and constitutional challenges to post-removal-period

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United States District Court
Northern District of California

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detention”). At this point, Trinidad has been in custody for over sixteen months.
An initial question concerns exhaustion. In our circuit, exhaustion of available judicial and

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administrative remedies before seeking relief under Section 2241 is a prudential matter, not a

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statutory requirement, and is subject to waiver because it is not a “‘jurisdictional’ prerequisite.”

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Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by

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Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). The Court may waive exhaustion

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requirements where administrative remedies would be ineffective or void, or would result in

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irreparable injury. Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004). Trinidad has not

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exhausted his administrative remedies because he failed to appeal the May 2017 denial of his

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application for a bond redetermination hearing. But that will not be a bar here. Trinidad has been

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in custody for one year and four months without a bond hearing, and his BIA appeal has been

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pending since December 2017. As several other courts in this district have determined, these facts

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establish potentially irreparable harm and warrant waiver of the prudential exhaustion

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requirement. See, e.g., Pulido v. Sessions, No. 17-CV-03683-WHA, Dkt. No. 12, slip. op. 4-5

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(N.D. Cal. Nov. 21, 2017).

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On the merits of Trinidad’s petition, there is no doubt he is entitled to a bond hearing.

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Trinidad is being detained pursuant to a final removal order, 8 U.S.C. § 1231(a)(5), and because

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the 90-day removal period has passed, 8 U.S.C. § 1231(a)(1)(A), he is in custody subject to ICE’s

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discretionary authority under Section 1231(a)(6). 8 U.S.C. § 1231(a); Padilla-Ramirez v. Bible,
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882 F.3d 826, 832 (9th Cir. 2017) (aliens subject to reinstated removal orders are detained

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pursuant to Section 1231(a)).

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While lawfully detained, Trinidad is entitled to due process. “[P]rolonged detention under

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§ 1231(a)(6), without adequate procedural protections, would raise ‘serious constitutional

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concerns.’” Diouf v. Napolitano, 634 F.3d 1081, 1086 (quoting Casas-Castrillon v. Dep’t of

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Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008)). Our circuit has “appl[ied] the canon of

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constitutional avoidance . . . [to] construe § 1231(a)(6) as requiring an individualized bond

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hearing, before an immigration judge, for aliens facing prolonged detention under that provision.”

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Diouf, 634 F.3d at 1086. This holding applies foursquare to Trinidad, and entitles him to a bond

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United States District Court
Northern District of California

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hearing.
The government tries to avoid this obvious result by arguing that Diouf should not apply to

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an alien subject to a reinstated order of removal who is detained pending withholding-only

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proceedings. Dkt. No. 8 at 7. The point is not well taken. Diouf does not carve out any class of

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Section 1231(a)(6) detainees from the right to a hearing; to the contrary, it expressly recognizes

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that Section 1231(a)(6) covers aliens such as Trinidad, who “have exhausted all direct and

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collateral review of their removal orders but who, for one reason or another, have not yet been

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removed from the United States.” Diouf, 634 F.3d at 1085. Diouf also indicates that differences

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in removal status are of no moment for a bond hearing. “Regardless of the stage of the [removal]

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proceedings, the same important interest is at stake -- freedom from prolonged detention.” Id. at

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1087. That liberty interest exists even if the detainee “lack[s] a ‘legal right’ to live at large in the

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United States.” Id. n.8 (quoting Zadvydas, 533 U.S. at 696). The government fails to square its

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position with Diouf’s holdings, and does not say why aliens subject to reinstated orders of removal

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have substantially diminished liberty interests compared to other aliens.

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The government also argues that Trinidad is not entitled to a bond hearing because there is

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a special interest in detaining aliens with a track record of illegal reentry. Dkt. No. 8 at 8. It is

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true that Trinidad has been removed from the United States 11 times. See Dkt. No. 8-1 Exh. A.

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That may be a troubling record, but it is irrelevant to his right to a bond hearing. See Diouf, 634

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F.3d at 1088; Casas-Castrillon, 535 F.3d at 950 (quoting Zadvydas, 533 U.S. at 690). Whether
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Trinidad should be granted or denied a bonded release in light of his history and other factors is an

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entirely different question from whether he should get a hearing. The only issue here is whether

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he is entitled to a hearing, and under controlling authority, he is.

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As a final note, the government suggests that Diouf should be considered infirm under the

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Supreme Court’s decision in Zadvydas because Trinidad cannot show that his removal is not

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reasonably foreseeable. Dkt. No. 8 at 9. This is wrong for several reasons. As an initial matter,

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Zadvydas was published in 2001 and Diouf in 2011. The Court is in no position to ignore circuit

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authority issued after a Supreme Court decision. See, e.g., Eberhard v. California Highway

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Patrol, No. 3:14-CV-01910-JD, 2015 WL 6871750, at *6 n.1 (N.D. Cal. Nov. 9, 2015). This is all

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United States District Court
Northern District of California

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the more true since Diouf relies extensively on the reasoning in Zadvydas.
Substantively, the government misconstrues these cases. Zadvydas holds that courts have

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Section 2241 authority to order the release of aliens held pursuant to Section 1231(a)(6) if “the

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detention in question exceeds a period reasonably necessary to secure removal.” Zadvydas, 533

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U.S. at 699. When “removal is not reasonably foreseeable, the court should hold continued

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detention unreasonable and no longer authorized by statute.” Id. at 699-700. Zadvydas establishes

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an alien’s right to seek release from civil detention that has become “indefinite, perhaps

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permanent,” id. at 692, due to the government’s inability to remove him or her. See, e.g., id. at

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684 (petitioner filed habeas petition after three countries refused to accept him over four years of

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removal efforts). In complementary fashion, Diouf establishes an alien’s right to a bond hearing

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when he or she is subject to “prolonged detention” exceeding 180 days. Diouf, 634 F.3d at 1091

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(emphasis in original). Diouf and Zadvydas do not conflict because they address parallel, co-

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existing entitlements.

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Consequently, Trinidad’s Section 2241 petition is granted, and respondents are ordered to

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provide a bond hearing for him within 30 days of the date of this order. If the government does

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not prove at the hearing that Trinidad is a flight risk or a danger to the community, he must be

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released immediately from custody.

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The Court declines Trinidad’s request to require additional bond hearings every 180 days.
Trinidad relies on Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), for the request, but that
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case has been reversed and remanded by the Supreme Court. See Jennings v. Rodriguez, __ U.S.

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__, 138 S. Ct. 830 (2018). In addition, Trinidad may not be subject to continued prolonged

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detention depending on what happens at his initial hearing and thereafter. Trinidad may renew his

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request for additional hearings if future developments warrant it.

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IT IS SO ORDERED.
Dated: April 30, 2018

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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