Villalta v. Sessions et al
Filing
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ORDER Granting in part and Denying in part 1 PETITION for Writ of Habeas Corpus and Denying as moot 6 MOTION for Temporary Restraining Order. Signed by Judge Lucy H. Koh on 10/02/2017. (lhklc2, COURT STAFF) (Filed on 10/2/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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MOISES ALEXANDER VILLALTA,
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Petitioner,
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND
DENYING IN PART PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR
TEMPORARY RESTRAINING ORDER
v.
JEFFERSON B. SESSIONS, et al.,
Respondents.
Re: Dkt. Nos. 1, 6
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On September 18, 2017, Petitioner Moises Alexander Villalta (“Petitioner”) filed, through
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counsel, a petition for writ of habeas corpus under 28 U.S.C. § 2241. See ECF No. 1 (“Petition”).
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Petitioner is a native and citizen of El Salvador who is currently detained in Immigration and
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Customs Enforcement (“ICE”) custody. See ECF No. 12-1, Exh. 1 (“Hubbard Decl.”) ¶¶ 3, 11.
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Petitioner argues that his prolonged detention without a bond hearing before an immigration judge
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(“IJ”) is unlawful, and requests that the Court either (1) “[o]rder [Petitioner’s] release from [ICE]
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custody”; or (2) order Respondents Jefferson B. Sessions, III, Elaine C. Duke, David W. Jennings,
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and David O. Livingston (“Respondents”) to “immediately provide a custody hearing at which the
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government is required to justify” Petitioner’s continued detention. Compl. at 16–17. On
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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September 19, 2017, Petitioner filed a motion for a temporary restraining order (“TRO”) seeking
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the same relief. See ECF Nos. 6, 7. That same day, the Court ordered Respondents to respond to
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Petitioner’s TRO motion. See ECF No. 9. On September 22, 2017, Respondents filed a
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Response.1 See ECF No. 12 (“Resp.”). Then, on September 25, 2017, Petitioner filed a Reply.
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See ECF No. 15 (“Reply”).
In their Response, Respondents request that the Court resolve Petitioner’s habeas petition
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on the merits. See Resp. at 1, 15. Petitioner does not oppose Respondents’ request. See Reply at
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8. Thus, having reviewed the briefing and exhibits submitted by the parties, the Court concludes
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that Petitioner is entitled to a bond hearing, but not to immediate release from ICE custody. As a
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result, the Court GRANTS in part and DENIES in part Petitioner’s habeas petition, and DENIES
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United States District Court
Northern District of California
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as moot Petitioner’s TRO motion.
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I.
BACKGROUND
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Petitioner asserts that he first entered the United States around 1999 after fleeing El
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Salvador because of violence and threats from the MS-13. ECF No. 5-1, Ex. H (“Villalta Decl.”),
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¶¶ 1, 31–35. Specifically, Petitioner says that he was targeted by the MS-13 after he identified
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MS-13 members as the perpetrators of two separate crimes. See id. ¶¶ 4–29.
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In or around 2011, Petitioner was apprehended by ICE. See Hubbard Decl. ¶ 4; ECF No. 7
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at 3. Then, in February 2012, ICE placed Petitioner into removal proceedings. Hubbard Decl. ¶ 4.
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On May 10, 2012, an IJ ordered Petitioner removed to El Salvador. Id. ¶ 5; Villalta Decl. ¶¶ 41–
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46. Petitioner appealed the IJ’s order to the Board of Immigration Appeals (“BIA”), which
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dismissed his appeal in September 2012. Hubbard Decl. ¶ 5. Petitioner was removed to El
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Salvador in October 2012. Id. ¶ 6; ECF No. 12-1 at 6–7. However, in December 2012,
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government officials encountered Petitioner in Houston, Texas. Hubbard Decl. ¶ 7. Petitioner
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was subsequently served with a “Notice of Intent/Decision to Reinstate Prior Order,” which
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Respondent David O. Livingston filed a “Non-Opposition to Motion for Temporary Restraining
Order,” in which he explained that he “takes no position regarding the merits of Petitioner’s
Motion for a Temporary Restraining Order.” ECF No. 13 at 2.
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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reinstated the previous removal order against Petitioner. See ECF No. 12-1 at 9. Then, Petitioner
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was again removed to El Salvador in January 2013. See id. at 11–12.
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Petitioner claimed that he subsequently re-entered the United States in 2013. Hubbard
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Decl. ¶ 9; ECF 12-1 at 16. In January 2017, Petitioner was arrested in Alameda County,
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California and accused of driving under the influence. Villalta Decl. ¶¶ 56–57. ICE agents took
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Petitioner into custody at the Alameda County jail on January 25, 2017. Id.; Hubbard Decl. ¶ 9.
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The next day, ICE once again reinstated Petitioner’s prior order of removal. Hubbard
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Decl. ¶ 11; ECF No. 12-1 at 19. However, because Petitioner expressed a fear of returning to El
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Salvador, his case was referred to an asylum officer of the United States Citizenship and
Immigration Services (“USCIS”). Hubbard Decl. ¶ 12. The asylum officer found that Petitioner
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United States District Court
Northern District of California
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had a reasonable fear of persecution or torture upon removal to El Salvador. ECF No. 12-1 at 21.
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Thus, USCIS referred Petitioner’s case to an IJ to conduct “withholding-only” proceedings
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through which Petitioner could apply for withholding of removal and relief under the Convention
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Against Torture (“CAT”). Hubbard Decl. ¶ 13; ECF No. 5-1, ECF No. 5-1, Exh. A (“Laner
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Decl.”) ¶¶ 5–6. Petitioner submitted an application for withholding of removal and relief under
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the CAT. Laner Decl. ¶ 6. On September 11, 2017, Petitioner appeared before the IJ for an
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individual hearing on Petitioner’s application. Hubbard Decl. ¶ 23. The IJ continued the hearing
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until October 23, 2017 for additional testimony. Id.
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Petitioner has been detained in ICE custody since January 25, 2017, and remains in
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detention at Contra Costa County Jail, West County Detention Facility in Richmond, California.
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See id. ¶¶ 9, 14. On August 31, 2017, after Petitioner had been detained by ICE for more than
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seven months, Petitioner filed a motion for a prolonged detention bond hearing pursuant to
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Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015) and Diouf v. Napolitano
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(Diouf II), 634 F.3d 1081 (9th Cir. 2011). See ECF No. 5-1 at 29–30. That same day, the IJ
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denied Petitioner’s motion for a prolonged detention bond hearing, stating only that the “court
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lacks jurisdiction as respondent in withholding only proceedings.” See id. at 27.
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
On September 5, 2017, Petitioner filed a renewed motion for a prolonged detention bond
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hearing. See id. at 20–22. On September 6, 2017, the IJ again denied Petitioner’s motion. See id.
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at 18. On September 14, 2017, Petitioner appealed the IJ’s bond hearing denial to the BIA. See
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id. at 12–14.
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II.
DISCUSSION
Petitioner argues that, as an alien in “withholding-only” proceedings before an IJ,
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Petitioner is entitled to a bond hearing before the IJ “at which the government is required to justify
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[Petitioner’s] continued detention by clear and convincing evidence that [Petitioner] is a danger or
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flight risk.” Petition at 17; see Rodriguez III, 804 F.3d at 1065. Petitioner asserts that he is
entitled to a bond hearing because he has been subject to prolonged detention. See ECF No. 7 at
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United States District Court
Northern District of California
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7.
Respondents do not contest that Petitioner is in “withholding-only” proceedings. See
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Resp. at 5. Respondents also do not assert that Respondents have already provided Petitioner the
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type of hearing that Petitioner seeks—specifically, a hearing at which the government is required
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to justify Petitioner’s continued detention by providing clear and convincing evidence that
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Petitioner is a flight risk or a danger to the community. Further, Respondents do not dispute that
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Petitioner has been subject to prolonged detention—that is, detention that “has lasted six months
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and is expected to continue more than minimally beyond six months.” Diouf II, 634 F.3d at 1092
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n.13.
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Instead, Respondents argue that Petitioner’s habeas petition should be denied because (1)
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Petitioner failed to exhaust administrative remedies; and (2) in any event, Petitioner is not lawfully
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entitled to a bond hearing. See Resp. at 7–13. For the reasons discussed below, the Court
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disagrees with Respondents. First, the Court explains why Petitioner is not required to exhaust
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administrative remedies in these circumstances. Second, the Court explains why Petitioner is
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entitled to a bond hearing.
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A. Petitioner is Not Required to Exhaust Administrative Remedies
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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It is undisputed that Petitioner has not exhausted his administrative remedies. Petitioner
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has filed two motions for a prolonged detention bond hearing with the IJ, both of which have been
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denied. See ECF No. 5-1 at 18, 20–22, 27, 29–30. Petitioner appealed the IJ’s bond hearing
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denial to the BIA on September 14, 2017, only four days before Petitioner filed the instant habeas
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petition. See id. at 12–14. Respondents argue that the Court should dismiss Petitioner’s habeas
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petition because Petitioner failed to exhaust his administrative remedies. Resp. at 7–9. For his
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part, Petitioner contends that he should not be required to exhaust administrative remedies. For
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the reasons discussed below, the Court agrees with Petitioner.
The Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust
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available judicial and administrative remedies before seeking relief under § 2241.” Castro-Cortez
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United States District Court
Northern District of California
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v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001). Specifically, “courts may require prudential
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exhaustion if (1) agency expertise makes agency consideration necessary to generate a proper
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record and reach a proper decision; (2) relaxation of the requirement would encourage the
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deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the
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agency to correct its own mistakes and to preclude the need for judicial review.” Puga v. Chertoff,
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488 F.3d 812, 815 (9th Cir. 2007) (internal quotation marks omitted). However, courts may waive
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the prudential exhaustion requirement if “administrative remedies are inadequate or not
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efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will
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result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000
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(9th Cir. 2004) (quoting SEC v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981)).
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Petitioner argues that requiring Petitioner to exhaust administrative remedies would cause
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Petitioner irreparable harm. See Reply at 7. The Court agrees that Petitioner “may suffer
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irreparable harm if unable to secure immediate judicial consideration of his claim.” McCarthy v.
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Madigan, 503 U.S. 140, 147 (1992). Petitioner claims he is entitled to a bond hearing because he
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has been subject to prolonged detention. As the Court noted above, Respondents do not dispute
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that Petitioner has been subject to prolonged detention. Indeed, at the time of writing, Petitioner
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
has been detained by ICE for more than eight months—substantially longer than the six-month
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marker for prolonged detention set forth in Diouf II. 634 F.3d at 1092 n.13. Thus, if Petitioner is
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correct on the merits of his habeas petition, then Petitioner has already been unlawfully deprived
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of a bond hearing for at least two months. Further, as Petitioner points out, each additional day
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that Petitioner is detained without a bond hearing would “cause[] him harm that cannot be
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repaired.” Reply at 7. Beyond that, Respondents do not dispute Petitioner’s contention that “the
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BIA often takes four months or more to decide an appeal.” ECF No. 7 at 4. Thus, “the potential
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for irreparable harm to Petitioner, in the form of continued unlawful denial of [bond] hearings” for
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potentially four months or more, persuades the Court that waiver of the exhaustion requirement is
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appropriate in the instant case. Marroquin-Perez v. Boente, No. 17-CV-00366-PHX-JTT (JFM),
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United States District Court
Northern District of California
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2017 U.S. Dist. LEXIS 122208, at *5–6 (D. Ariz. Aug. 1, 2017). Other district courts within the
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Ninth Circuit have declined to require exhaustion in cases with similarly-situated petitioners. See
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id.; Rios-Troncoso v. Sessions, No. 17-cv-01492-PHX-DGC (MHB), 2017 U.S. Dist. LEXIS
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141885, at *6–7 (D. Ariz. Sept. 1, 2017) (“[T]he Court has identified no fewer than six cases in
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this District in which the exhaustion requirement was waived for similarly-situated petitioners.”).
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The sole argument that Respondents raise against Petitioner’s assertion of irreparable harm
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is that Petitioner’s “detention [without a bond hearing] is lawful and, therefore, cannot cause
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irreparable injury such that the requirement of exhaustion should be waived.” Resp. at 9.
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However, as the Court explains below, Petitioner’s continued detention without a bond hearing is
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unlawful.
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B. Petitioner Is Entitled to a Bond Hearing
In order to explain why Petitioner is entitled to a bond hearing, the Court first summarizes
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the statutes relevant to this case and describes what “withholding-only” proceedings are. Then,
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the Court provides a brief summary of the relevant law governing detention of aliens awaiting
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removal from the United States and discusses how the law applies to Petitioner’s circumstances.
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1. Relevant Statutes and “Withholding-Only” Proceedings
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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The Immigration and Nationality Act (“INA”) sets forth a statutory scheme that authorizes
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detention of aliens awaiting removal from the United States. Different sections of the INA govern
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different phases of detention. First, 8 U.S.C. § 1226(a) authorizes detention of an alien “pending a
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decision on whether the alien is to be removed from the United States.” Section 1226(a)
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authorizes detention until a removal order becomes final—that is, until “the latest of the date the
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order of removal becomes administratively final or, if the alien files a petition for review in the
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court of appeals and the court of appeals orders a stay of removal, the date of the court of appeals’
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final order upholding the order of removal.” Diouf II, 534 F.3d at 1085.
Second, after a removal order becomes final, 8 U.S.C. § 1231(a)(2) authorizes mandatory
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detention of the alien during a 90-day period called the “removal period.” 8 U.S.C. § 1231(a)(2);
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United States District Court
Northern District of California
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see id. § 1231(a)(1)(A) (defining the “removal period”). Specifically, § 1231(a)(2) states that
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“[d]uring the [90-day] removal period, the Attorney General shall detain the alien.”
Third, 8 U.S.C. § 1231(a)(6) authorizes detention “beyond the [90-day] removal period” of
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an alien “who has been determined by the Attorney General to be a risk to the community or
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unlikely to comply with the order of removal.” Although § 1231(a)(6) detainees are subject to
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final orders of removal, and therefore cannot seek direct review of their removal orders, some §
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1231(a)(6) detainees may seek collateral review of their removal orders. See Diouf II, 634 F.3d at
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1086.
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If an alien who was previously removed from the United States pursuant to a removal
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order re-enters the United States and is subsequently apprehended, 8 U.S.C. § 1231(a)(5) allows
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the government to reinstate the alien’s prior removal order, and the alien cannot challenge his
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reinstated removal order either directly or collaterally. 8 U.S.C. § 1231(a)(5) (“[T]he prior order of
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removal is reinstated from its original date and is not subject to being reopened or reviewed.” 8
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U.S.C. § 1231(a)(5).
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However, if the alien expresses a fear of returning to the country of removal, and if an
asylum officer finds that the alien has a “reasonable fear” of persecution, then the alien is placed in
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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“withholding-only” proceedings before an IJ through which the alien may apply for withholding
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of removal. See 8 C.F.R. § 208.31. These proceedings are known as “withholding-only”
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proceedings because the IJ’s jurisdiction is limited to consideration of whether an alien is entitled
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to withholding of removal only. See id. § 1202.2(c)(3)(i) (“The scope of review in [withholding-
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only] proceedings . . . shall be limited to a determination of whether the alien is eligible for
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withholding or deferral of removal.”).
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2. Legal Framework and Application to Petitioner
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In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008),
the Ninth Circuit observed that “prolonged detention” pursuant to 8 U.S.C. § 1226(a) without an
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individualized bond hearing “would raise serious constitutional concerns.” Id. at 950; see id. at
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United States District Court
Northern District of California
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951. Thus, the Ninth Circuit applied the canon of constitutional avoidance and interpreted §
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1226(a) to require the government to provide bond hearings before immigration judges to aliens
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subject to prolonged detention. Id. at 951 (“Because the prolonged detention of an alien without
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an individualized determination of his dangerousness or flight risk would be ‘constitutionally
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doubtful,’ we hold that § 1226(a) must be construed as requiring the Attorney General to provide
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the alien with such a hearing.”). The Ninth Circuit also stated that at these bond hearings, the
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government must “establish[] that [the alien] is a flight risk or will be a danger to the community”
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in order to justify continued detention of the alien. Id. (internal quotation marks omitted).
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Only three years after Casas-Castrillon, the Ninth Circuit “extend[ed] Casas-Castrillon to
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aliens detained under § 1231(a)(6)” in Diouf II. 634 F.3d at 1086. The Ninth Circuit found “no
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basis for withholding from aliens detained under § 1231(a)(6) the same procedural safeguards
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accorded to aliens detained under § 1226(a),” and stated that “prolonged detention under §
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1231(a)(6), without adequate procedural protections, would raise ‘serious constitutional
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concerns.’” Id. (quoting Casas-Castrillon, 535 F.3d at 950). As a result, the Ninth Circuit once
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again applied the canon of constitutional avoidance and “construe[d] § 1231(a)(6) as requiring an
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individualized bond hearing, before an immigration judge, for aliens facing prolonged detention
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ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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under [§ 1231(a)(6)].” Id.
Most recently, in Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir. 2017), the Ninth Circuit
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addressed whether an alien in “withholding-only” proceedings is detained pursuant to § 1226(a) or
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§ 1231(a). The petitioner in Padilla-Ramirez, like Petitioner here, was in “withholding-only”
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proceedings after ICE reinstated the petitioner’s prior removal order and an asylum officer found
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that the petitioner “had stated a reasonable fear of persecution or torture if he were removed to El
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Salvador.” 862 F.3d at 883. The Ninth Circuit held that the petitioner was “detained pursuant to
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[8 U.S.C. §] 1231(a).” Id. at 886. Thus, because only two provisions of § 1231(a) authorize
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detention—§ 1231(a)(2) (which authorizes detention during the 90-day removal period) and §
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1231(a)(6) (which authorizes detention beyond the 90-day removal period)—Padilla-Ramirez
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United States District Court
Northern District of California
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indicates that an alien who is detained while in “withholding-only” proceedings must be detained
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pursuant to either § 1231(a)(2) or § 1231(a)(6). In turn, under Diouf II, an alien who is detained in
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“withholding-only” proceedings pursuant to the second provision, § 1231(a)(6), is entitled to a
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bond hearing if the alien has been subject to prolonged detention.
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As a result, Diouf II and Padilla-Ramirez clearly demonstrate that Petitioner is entitled to a
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bond hearing. First, as the Court noted above, Respondents do not dispute that Petitioner has been
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subject to prolonged detention. Second, as Respondents correctly acknowledge, Petitioner “is
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being detained pursuant to . . . [§] 1231(a)(6).” Resp. at 1. The parties agree that Petitioner is
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currently in “withholding-only” proceedings, so Padilla-Ramirez establishes that Petitioner is
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being detained pursuant to 8 U.S.C. § 1231(a). And as the Court stated above, § 1231(a) contains
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two detention provisions: § 1231(a)(2) authorizes mandatory detention during the 90-day removal
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period immediately after an alien’s removal order becomes final, while § 1231(a)(6) authorizes
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detention “beyond the [90-day] removal period” of an alien “who has been determined by the
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Attorney General to be a risk to the community or unlikely to comply with the order of removal.”
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Because “Petitioner has been detained past the 90-day removal period,” Resp. at 1, it is beyond
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dispute that Petitioner is being detained pursuant to § 1231(a)(6).
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ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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Therefore, the parties are in agreement that Petitioner (1) has been subject to prolonged
detention (2) pursuant to 8 U.S.C. § 1231(a)(6). In Diouf II, the Ninth Circuit “h[e]ld that an alien
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facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigration
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judge and is entitled to be released from detention unless the government establishes that the alien
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poses a risk of flight or a danger to the community.” 634 F.3d at 1092. Indeed, the Diouf II court
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stated that it “construe[d] § 1231(a)(6)” in this way because a contrary construction “would raise
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‘serious constitutional concerns.’” Id. at 1086 (quoting Casas-Castrillon, 535 F.3d at 950). Thus,
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Diouf II plainly requires Respondents to provide Petitioner the bond hearing that he seeks in his
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petition. See Rios-Troncoso, 2017 U.S. Dist. LEXIS 141885, at *8–9 (“[T]he clear language of
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Diouf II . . . extinguishes any doubt that the government is required to provide Petitioner with a
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United States District Court
Northern District of California
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bond hearing before an immigration judge.”).
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The Court does not find persuasive any of Respondent’s attempts to distinguish Diouf II
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from the instant case. First, Respondents insist that Diouf II does not “afford the opportunity for a
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bond hearing to aliens like Petitioner” because Diouf II held only that “aliens who are subject to a
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final order of removal”—and not aliens who are subject to a reinstated order of removal—“are
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entitled to bond hearings if detention under section 1231(a) becomes prolonged.” Resp. at 12.
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However, Diouf II’s explicit holding makes no distinction between aliens who are subject to final
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orders of removal and aliens who are subject to reinstated orders of removal. To the contrary, the
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Diouf II court announced: “We hold that an alien facing prolonged detention under § 1231(a)(6) is
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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. Because Diouf II “construe[d] § 1231(a)(6),” Diouf II’s holding
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applies to all aliens detained under § 1231(a)(6). Id. at 1086.
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Second, and similarly, Respondents argue that Diouf II is distinguishable from the instant
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case because the petitioner in Diouf II “could challenge his removal order itself,” while “Petitioner
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here will remain subject to a final order of removal even if his application for withholding of
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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removal is ultimately granted.” Resp. at 10. However, before interpreting § 1231(a)(6) to require
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bond hearings for aliens subject to prolonged detention under § 1231(a)(6), the Diouf II court
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expressly recognized that some aliens detained pursuant to § 1231(a)(6) would remain subject to a
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final order of removal in any event. See 634 F.3d at 1085 (“Section 1231(a)(6) encompasses
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aliens such as Diouf, whose collateral challenge to his removal order (a motion to reopen) is
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pending in the court of appeals, as well as to aliens who have exhausted all direct and collateral
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review of their removal orders but who, for one reason or another, have not yet been removed
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from the United States.”). Thus, the Diouf II court reached its interpretation of § 1231(a)(6) with
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the understanding that § 1231(a)(6) encompasses aliens who, like Petitioner, can no longer directly
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United States District Court
Northern District of California
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or collaterally challenge their removal orders.
Further, Diouf II rejected a similar argument the government made against extending “the
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procedural safeguards accorded to aliens detained under § 1226(a)” to “aliens detained under §
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1231(a)(6).” See 634 F.3d at 1086. In Diouf II, “[t]he government’s primary argument for
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treating § 1226(a) detainees differently from § 1231(a)(6) detainees is that the former are detained
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while seeking direct judicial review of administratively final orders of removal whereas the latter
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are detained while seeking collateral review of final orders of removal (through motions to
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reopen).” Id. The Ninth Circuit rejected this argument in part because “[r]egardless of the stage
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of the proceedings, the same important [liberty] interest is at stake—freedom from prolonged
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detention.” Id. at 1087. Here, Respondents are similarly arguing that § 1231(a)(6) detainees who
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can still seek collateral review of their final orders of removal should be treated differently from §
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1231(a)(6) detainees who, like Petitioner, can no longer collaterally challenge their final orders of
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removal and who have applied for withholding or deferral of their removal orders. But as Diouf II
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makes clear, “the same important [liberty] interest is at stake” for both of these types of §
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1231(a)(6) detainees, even though they are at different “stage[s] of the proceedings.” Both types
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of § 1231(a)(6) detainees have an interest in “freedom from prolonged detention.” Id.
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Third, Respondents point out that “unlike the petitioner in Diouf II, who entered the United
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
States on a visa and had never been physically removed from the United States, Petitioner has
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been physically removed from the United States on two prior occasions.” Resp. at 10. However,
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although Petitioner’s prior deportations may demonstrate that the government’s interests in
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detaining Petitioner “present qualitatively different concerns than those addressed in Diouf II,” id.,
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Petitioner’s prior deportations do not change the fact that Petitioner has a liberty interest—in
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being free from prolonged detention—that requires procedural safeguards. See Diouf II, 634 F.3d
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at 1087 (“Regardless of the stage of the proceedings, the same important interest is at stake—
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freedom from prolonged detention.”). In other words, Petitioner’s prior deportations may make
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Respondents even more inclined to continue detaining Petitioner because the prior deportations
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suggest that Petitioner is a flight risk, but that is exactly the type of concern that bond hearings
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United States District Court
Northern District of California
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address. See Rodriguez III, 804 F.3d at 1079 (stating that a bond hearing “allows the IJ to
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consider granting bond” based on “whether the detainee would pose a danger or flight risk if
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released”). Petitioner’s prior deportations may be used against Petitioner at a bond hearing, but
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Respondents do not explain why Petitioner’s prior deportations justify denying Petitioner a bond
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hearing altogether.
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Fourth, Respondents state that “unlike the petitioner in Diouf II, Petitioner’s removal order
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in this case is not being judicially reviewed, either directly or collaterally through a motion to
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reopen.” Resp. at 10. Respondents also call attention to the fact that 8 U.S.C. § 1231(a)(5) bars
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Petitioner from collaterally attacking his removal order. Id. However, Respondents offer no
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explanation for why this distinction matters. Furthermore, Petitioner points out that although
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Petitioner cannot challenge his removal order, Petitioner “could seek judicial review of an adverse
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decision in [his] withholding-only proceedings.” See Andrade-Garcia v. Lynch, 828 F.3d 829,
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833 (9th Cir. 2016) (“An IJ's negative determination regarding the alien’s reasonable fear makes
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the reinstatement order final, see 8 C.F.R. § 208.31(g)(1), and thus subject to [judicial] review
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under 8 U.S.C. § 1252.”). Thus, like a detainee whose removal order is being judicially reviewed,
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a detainee awaiting judicial review of an adverse decision in his “withholding-only” proceedings
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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may have to wait in detention for a substantial length of time before judicial review is completed.
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Therefore, both types of detainees face the prospect of prolonged detention. And, as Diouf II
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explicitly held, any alien who actually faces prolonged detention under § 1231(a)(6) is entitled to a
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bond hearing. 634 F.3d at 1092.
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In sum, because Petitioner has been subject to prolonged detention pursuant to §
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1231(a)(6), Diouf II clearly commands that Petitioner is entitled to a bond hearing at which the
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government must justify Petitioner’s continued detention by establishing that Petitioner is a flight
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risk or a danger to the community. 634 F.3d at 1092 (“We hold that an alien facing prolonged
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detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is
entitled to be released from detention unless the government establishes that the alien poses a risk
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United States District Court
Northern District of California
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of flight or a danger to the community.”).
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III.
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CONCLUSION
For the foregoing reasons, the Court finds that Petitioner is entitled a bond hearing.
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However, because the Court has no basis to rule on whether Petitioner is a flight risk or a danger
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to the community, the Court does not find that Petitioner is entitled to immediate release from ICE
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custody. Thus, the Court GRANTS in part and DENIES in part Petitioner’s petition for writ of
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habeas corpus under 28 U.S.C. § 2241 and DENIES as moot Petitioner’s TRO motion. Within 14
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days of this order, Respondents must provide Petitioner with a bond hearing before an IJ who has
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the power to grant Petitioner’s release on bond if Respondents fail to establish “by clear and
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convincing evidence that [Petitioner] is a flight risk or a danger to the community.” Rodriguez III,
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804 F.3d at 1065.
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A petitioner may not appeal a final order in a federal habeas corpus proceeding without
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first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A
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judge shall grant a certificate of appealability “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court
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has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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straightforward: the petitioner must demonstrate that reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
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473, 484 (2000). Having considered the submissions of the parties, the relevant law, and the
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record in this case, the Court finds that jurists of reason would not find debatable the Court’s
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denial of Petitioner’s immediate release from ICE custody. Accordingly, the Court does not issue
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a certificate of appealability for Petitioner’s claim for immediate release from ICE custody.
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IT IS SO ORDERED.
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United States District Court
Northern District of California
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Dated: October 2, 2017
______________________________________
LUCY H. KOH
United States District Judge
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Case No. 17-CV-05390-LHK
ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS;
DENYING AS MOOT MOTION FOR TEMPORARY RESTRAINING ORDER
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