Alfaro v. Sessions et al
Filing
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ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge William H. Orrick on 06/04/2018. (jmdS, COURT STAFF) (Filed on 6/4/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JESUS LEON ALFARO,
Petitioner,
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Case No. 3:18-cv-02959-WHO
v.
JEFFERSON BEAUREGARD SESSIONS,
et al.,
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United States District Court
Northern District of California
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ORDER GRANTING IN PART AND
DENYING IN PART PETITION FOR
WRIT OF HABEAS CORPUS
Respondents.
Re: Dkt. No. 1
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INTRODUCTION
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Petitioner Jesus Leon Alfaro (Leon), a native and citizen of Mexico, has been detained in
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Immigration and Customs Enforcement (ICE) custody since May 24, 2017. On May 18, 2018, he
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filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 and a motion for a temporary
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restraining order (TRO) claiming that his prolonged detention without a bond hearing before an
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immigration judge is unlawful. He requests an order releasing him from custody, or in the
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alternative, providing him a bond hearing at which the government bears the burden of justifying
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his continued detention.
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As with numerous other courts in this circuit that have been presented with this issue, I
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conclude that Leon is entitled to a bond hearing, but not to immediate release from ICE custody.
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His petition is GRANTED IN PART and DENIED IN PART. His TRO motion is DENIED as
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moot. The hearing on this matter is VACATED. Civil L. R. 7-1(b).
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BACKGROUND
Leon is a native and citizen of Mexico who initially entered the United States in 1999. Pet.
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¶ 12 (Dkt. No. 1). In 2006, after Leon was convicted in state court of controlled substance
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offenses for the second time, ICE initiated removal proceedings against him. Morris Decl. ¶¶ 4–6
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(Dkt. No. 8). On February 9, 2006, Leon conceded removability, the immigration judge ordered
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him removed, and, the same day, ICE executed the removal order and deported Leon to Mexico.
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Morris Decl. ¶ 7. In March 2006, he was convicted of illegal entry under 8 U.S.C. § 1325. Id. ¶ 9.
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He was removed again in June 2006. Id. ¶ 10.
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Back in Mexico, Leon witnessed a double homicide committed by the international drug
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cartel known as the Zetas. Pet. ¶ 7. Leon was beaten, kidnapped at gunpoint, and threatened with
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death if he told anyone what he had seen. Id. ¶¶ 7, 13. He fled Mexico for the United States,
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where he has continuously resided since 2006. Id. ¶ 13.
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In April 2017, Leon was convicted in state court of stalking; ICE took custody of him in
May and reinstated his prior order of removal pursuant to 8 U.S.C. § 1231(a)(5). Pet. ¶ 14; Morris
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United States District Court
Northern District of California
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Decl. ¶¶ 11–13. Leon expressed his fear of returning to Mexico, was provided with a “reasonable
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fear interview,” and was afforded a hearing before an immigration judge. Pet. ¶ 14. On October
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10, 2017, Immigration Judge Ila Deiss granted Leon Withholding of Removal and relief under the
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Convention Against Torture (CAT). Pet. ¶ 15; Morris Decl. ¶ 17. ICE appealed that decision to
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the Board of Immigration Appeals (BIA). Pet. ¶ 15; Morris Decl. ¶ 17.
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On November 29, 2017, Leon filed a motion for a bond hearing before an immigration
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judge; the immigration judge denied the request, citing a lack of jurisdiction. Pet. ¶ 18; Morris
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Decl. ¶ 18. On March 6, 2018, Leon filed a second motion for a bond hearing before an
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immigration judge, which the judge denied, citing a lack of jurisdiction and the recent Supreme
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Court decision in Jennings v. Rodriguez, ___ U.S. ___, 138 S. Ct. 830 (2018). Pet. ¶ 18; Morris
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Decl. ¶ 18. On April 6, 2018, Leon appealed that decision to the BIA; that appeal remains
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pending.
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On May 18, 2018, Leon filed this petition for writ of habeas corpus under 28 U.S.C. §
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2241 and a motion for a temporary restraining order seeking his release from custody, or,
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alternatively, that he be provided a bond hearing at which the government must justify his
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continued detention.
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DISCUSSION
In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011)(“Diouf II”), the Ninth Circuit held
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that “an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled
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to release on bond unless the government establishes that he is a flight risk or a danger to the
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community.” Id. at 1082; see also 8 U.S.C. § 1231(a)(6)(“An alien ordered removed who is
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inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2),
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or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the
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community or unlikely to comply with the order of removal, may be detained beyond the removal
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period and, if released, shall be subject to the terms of supervision in paragraph (3).”)(emphasis
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added). “As a general matter, detention is prolonged when it has lasted six months and is expected
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to continue more than minimally beyond six months.” Diouf II, 634 F.3d at 1092 n.13.
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Leon has been detained under subsection (a)(6) for over a year. See Morris Decl. ¶ 18.
United States District Court
Northern District of California
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Yet respondents argue that the petition should be denied for failure to exhaust administrative
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remedies and because Diouf II was undermined by Jennings v. Rodriguez, ___ U.S. ___, 138 S.
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Ct. 830 (2018), and should not apply to aliens in withholding-only proceedings. Consolidated
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Opp’n to TRO Mot. and Return to Habeas Pet. (“Opp’n”)(Dkt. No. 7). Numerous cases reject
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these arguments. See id. at 5 (listing cases waiving exhaustion requirement); id. at 9 n.2 (listing
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cases finding that similarly-situated petitioners were entitled to bond hearings under Diouf II).
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I agree with the well-reasoned decisions of other courts in this district. As a threshold
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issue, “exhaustion of available judicial and administrative remedies before seeking relief under
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Section 2241 is a prudential matter, not a statutory requirement, and is subject to waiver because it
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is not a ‘jurisdictional’ prerequisite.” Trinidad v. Sessions, No. 3:17-CV-06877-JD, 2018 WL
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2010618, at *1 (N.D. Cal. Apr. 30, 2018)(quoting Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047
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(9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
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(2006)). Exhaustion may be waived when irreparable injury would result. Laing v. Ashcroft, 370
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F.3d 994, 1000 (9th Cir. 2004). The potential for irreparable harm to Leon stemming from his
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detention without a hearing “warrant[s] waiver of the prudential exhaustion requirement.”
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Trinidad, 2018 WL 2010618, at *1; see also Cortez v. Sessions, No. 18-CV-01014-DMR, 2018
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WL 1510187, at *3 (N.D. Cal. Mar. 27, 2018)(“[T]he court concludes that administrative
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exhaustion is not required.”); Ramos v. Sessions, No. 18-CV-00413-JST, 2018 WL 905922, at *3
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(N.D. Cal. Feb. 15, 2018)(same); Villalta v. Sessions, No. 17-CV-05390-LHK, 2017 WL 4355182,
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at *3–4 (N.D. Cal. Oct. 2, 2017)(same).
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Moving on to the merits of the petition, both of respondents’ arguments have been
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consistently rejected. Courts in this circuit have found that Diouf II remains binding authority
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even after Jennings. E.g., Hurtado-Romero v. Sessions, No. 18-CV-01685-EMC, 2018 WL
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2234500, at *2 (N.D. Cal. May 16, 2018)(“Jennings and Diouf are not ‘clearly irreconcilable’…”);
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Mercado-Guillen v. Nielsen, No. 18-CV-00727-HSG, 2018 WL 1876916, at *3 (N.D. Cal. Apr.
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19, 2018)(“But Diouf II remains good law.”); Cortez v. Sessions, No. 18-CV-01014-DMR, 2018
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WL 1510187, at *8 (N.D. Cal. Mar. 27, 2018) (“Diouf II remains good law which this court is
bound to follow.”); Ramos v. Sessions, No. 3:18-cv-0413-JST, 293 F. Supp. 3d 1021, 1026 (N.D.
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United States District Court
Northern District of California
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Cal. 2018)(“Jennings reversed the Ninth Circuit's holding in Rodriguez that immigrants detained
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under sections 1225(b)(1), 1225(b)(2), and 1226(c) were entitled to a bond hearing every six
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months, but left untouched the Ninth Circuit's requirement [under Diouf II] of such hearings for
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immigrants detained under section 1231(a)(6).”).
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And many of these decisions have determined that Diouf II applies to individuals in
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withholding-only proceedings who are not seeking review of their underlying removal orders.
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Mercado-Guillen, 2018 WL 1876916, at *2 (“Diouf II applies to all non-citizens who are detained
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under section 1231(a)(6).”); Cortez, 2018 WL 1510187, at *8 (“The Ninth Circuit in Diouf II
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extended the right to a bond hearing to all non-citizens detained more than six months under
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section 1231(a)(6)”); Ramos, 293 F. Supp. 3d at 1027 (rejecting the government’s argument to the
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contrary); see also Trinidad, 2018 WL 2010618, at *2 (“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.’”)(quoting Diouf, 634 F.3d at 1085). This conclusion flows
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naturally from Diouf II’s broad holding—“an alien facing prolonged detention under § 1231(a)(6)
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is entitled to a bond hearing before an immigration judge and is entitled to be released from
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detention unless the government establishes that the alien poses a risk of flight or a danger to the
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community.” 634 F.3d at 1092; see also Padilla-Ramirez v. Bible, 882 F.3d 826, 830 (9th Cir.
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2017)(“We previously have held that ‘individuals detained under § 1231(a)(6) are entitled to the
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same procedural safeguards against prolonged detention as individuals detained under §
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1226(a).’”)(quoting Diouf II, 634 F.3d at 1084).
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I am bound to follow Diouf II. Leon is entitled to a bond hearing.
CONCLUSION
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Leon’s petition for writ of habeas corpus is GRANTED IN PART and DENIED IN PART.
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Within 15 days of this order, Leon must be provided with a hearing before an immigration judge
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with the power to release him on bond unless the government establishes that he is “a risk to the
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United States District Court
Northern District of California
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community or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6).
IT IS SO ORDERED.
Dated: June 4, 2018
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William H. Orrick
United States District Judge
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