Mansoor v. Figueroa et al

Filing 5

ORDER Granting in Part and Denying in Part 4 Petition for Writ of Habeas Corpus. Respondents are ordered to provide petitioner a hearing within twenty days of this order before an immigration judge with the power to grant him bond and/or ISAP placement. Signed by Judge Gonzalo P. Curiel on 2/13/18. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REVAN SHAWKAT MANSOOR,

Case No.: 3:17-cv-01695-GPC (NLS)

Petitioner,

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v.

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FRED FIGUEROA, Warden, Otay Mesa
Detention Center; GREGORY
ARCHAMBEAULT, Field Director, U.S.
Immigration & Customs Enforcement;
ELAINE DUKE, Acting Secretary, U.S.
Department of Homeland Security; DOES
1-3,

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ORDER GRANTING IN PART AND
DENYING IN PART PETITION FOR
WRIT OF HABEAS CORPUS

Respondents.

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Petitioner Revan Shawkat Mansoor (“Petitioner”), proceeding with counsel, is a

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national and citizen of the Republic of Iraq. (See ECF No. 1-2 at 2.1) He is currently in

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the custody of the United States Immigration and Customs Enforcement (“ICE”), an

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agency of the United States Department of Homeland Security (“DHS”). (Id. at 4.) On

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Page numbers are based on CM/ECF pagination.
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August 23, 2017, Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”). (ECF

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No. 1.) He moves for immediate release from custody or, in the alternative, release with

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enrollment in the Intensive Supervision Appearance Program (“ISAP”). (Id. at 9.)

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Respondents include: Fred Figueroa, Warden at Otay Mesa Detention Center; Gregory

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Archambeault, Field Director at ICE; and Elaine Duke, Acting Secretary at DHS

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(collectively “Respondents”). (Id. at 1.) Respondents were ordered to file a response by

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January 12, 2018, but they failed to do so. (See ECF No. 3.) On January 16, 2018,

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Petitioner filed a motion requesting the Court grant his Petition for Writ of Habeas

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Corpus. (ECF No. 4.) The Court decides the matter on the papers submitted and without

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oral argument pursuant to Civil Local Rule 7.1.d.1. After a thorough review of the issues

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and the documents presented, the Court GRANTS IN PART and DENIES IN PART

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Petitioner’s Petition for Writ of Habeas Corpus.

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I.

Background

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Petitioner is a citizen and national of the Republic of Iraq. (See ECF No. 1-2 at 2.)

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On April 21, 2009, he was admitted into the United States as a Child of a Refugee. (Id. at

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4.) On November 14, 2013, after receiving a Notice to Appear from ICE as a removable

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alien convicted of a crime of domestic violence and being released on the Alternatives to

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Detention program, the Immigration Judge (“IJ”) ordered the removal proceedings

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terminated without prejudice. (Id.)

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After Petitioner was convicted of sodomy of a person under sixteen years of age in

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violation of California Penal Code sections 286(b)(2), and lewd act upon a child fourteen

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or fifteen years of age in violation of California Penal Code section 288(c)(1), ICE made

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contact with Petitioner in January 2016. (Id.) On July 11, 2016, Petitioner was released

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from the San Diego Central Jail and transferred to the custody of ICE. (Id.) ICE placed

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Petitioner into removal proceedings and issued him a Notice to Appear. (Id.) Petitioner

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appeared before an IJ in San Diego, California, where he sought relief under the

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Immigration and Nationality Act. (Id. at 2.)

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On April 18, 2017, Petitioner was denied Asylum and Withholding of Removal.

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(Id.) Petitioner was granted deferral of removal to Iraq under Article III of the

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Convention Against Torture. (Id.) Instead, he was ordered removed to Turkey. (Id.)

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Petitioner’s April 18, 2017 order of removal is final.

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On July 28, 2017, ICE reviewed Petitioner’s custody status and determined it

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would not release Petitioner because he was deemed to be a threat to the community. (Id.

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at 4.) The decision also stated that the Government of Turkey will not issue a travel

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document to Petitioner. (Id.) Petitioner remains in the custody of ICE and is being held

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at the Otay Mesa Detention Center located in San Diego, California. (Id.) On August 23,

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2017, Petitioner filed his Petition for Writ of Habeas Corpus with this Court seeking his

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immediate release or, in the alternative, enrollment in the Intensive Supervision

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Appearance Program (“ISAP”). (ECF No. 1.) The government failed to file a timely

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response, and, on January 16, 2018, Petitioner filed a motion requesting that the Court

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grant his Petition. (ECF No. 4.)

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II.

Jurisdiction
Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge the extent of

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the Attorney General’s authority to detain a removable alien under the statutes

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authorizing detention. Zadvydas v. Davis, 533 U.S. 678, 687-89 (2001); see also Demore

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v. Kim, 538 U.S. 510, 516-17 (2003). Although the REAL ID Act of 2005 divested

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district court jurisdiction over habeas petitions challenging orders of removal, it does not

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divest the district court of jurisdiction over challenges to detention. Martinez v.

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Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (citation omitted); Nadarajah v. Gonzales,

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443 F.3d 1069, 1075 (9th Cir. 2006). However, the scope of the federal courts’ review is

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limited to constitutional claims and questions of law. Singh v. Holder, 638 F.3d 1196,

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1202 (9th Cir. 2011). Here, Petitioner challenges his continued detention and not the

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validity of a final order of removal. Therefore, this Court has jurisdiction under 28

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U.S.C. § 2241 to consider his Petition.

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III.

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Merits

Petitioner asserts that Respondents have subjected him to prolonged detention.
(ECF No. 1 at 3.)

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a. Prolonged Detention

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Petitioner claims he is being held in detention pursuant to 8 U.S.C. § 1231(a)(6).

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(ECF No. 1 at 4.) Section 1231(a) requires detention throughout a ninety-day removal

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period for a noncitizen having received a final order of removal based on criminal

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grounds. 8 U.S.C. §§ 1231(a), 1231(a)(2). If the noncitizen has not been removed during

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this period, § 1231(a)(6) authorizes continued detention at the discretion of the Attorney

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General. 8 U.S.C. § 1231(a)(6). However, once detention becomes prolonged and the

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detainee is not provided with adequate bond hearings, serious due process concerns arise.

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See Diouf v. Napalitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (finding DHS regulations

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governing the 180-day independent review “do raise serious constitutional concerns”

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because they do not provide for a decision by a neutral arbiter and, “[a]t this point, the

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alien’s continuing detention becomes prolonged.”);2 see also Demore, 538 U.S. at 531-32

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(reasoning that mandatory detention of a removable noncitizen for a brief period of time

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does not violate due process, but deprivations of liberty by continued unreasonable

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detention could entitle the detainee to greater protections) (J. Kennedy concurring). The

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Ninth Circuit has imposed a bright-line standard, defining “prolonged detention” as that

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which exceeds six-months. Diouf, 634 F.3d at 1092 n.13 (“As a general matter, detention

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Diouf builds upon a series of Ninth Circuit jurisprudence recognizing that prolonged detention without
a bond hearing raises serious due process concerns. See Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011);
Casas-Castrillon v. Dep’t of Homeland Security, 535 F.3d 942 (9th Cir. 2008); Nadarajah, 443 F.3d at
1078-79; Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005).
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is prolonged when it has lasted six months and is expected to continue more than

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minimally beyond six months.”).

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Petitioner has been in the custody of Respondents since July 11, 2016. His final

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order of removal was entered on April 18, 2017. Following its entry, Petitioner remained

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in Respondents’ custody throughout the ninety-day removal period required by 8 U.S.C.

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§ 1231(a)(2). Although the ninety-day removal period ended on July 16, 2017, Petitioner

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has yet to be removed from the United States or released from detention. On July 28,

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2017, Respondents independently reviewed Petitioner’s custody status and determined

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Petitioner would not be released because Respondents considered him to be a threat to the

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community. (See ECF No. 1-2 at 4.) Petitioner has been in the continuous custody of

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Respondents for more than eighteen months from the date his custody began on July 11,

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2016. Over six months have passed since Petitioner’s ninety-day removal period ended

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on July 16, 2017. Petitioner has not received a bond hearing before a neutral arbiter.

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Instead, Petitioner has only been provided with an independent review of his detention by

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Respondents. (Id.) Thus, the Court finds that Respondents have held Petitioner in

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prolonged detention without adequate procedural safeguards.

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b. Assignment to an Immigration Judge

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Petitioner now seeks his release or, in the alternative, placement in ISAP.

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However, the Court finds Petitioner’s request more appropriately suited for determination

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by an IJ.

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IJs must hold bond hearings every six months for all noncitizens detained under

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general immigration detention statutes. Diouf, 634 F.3d at 1082 (holding individuals held

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under 8 U.S.C. § 1231 are entitled to a bond hearing after six months of detention, where

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the government bears the burden of justifying their continued imprisonment); Rodriguez

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v. Robbins, 804 F.3d 1060, 1090 (9th Cir. 2015) (“Rodriguez III”) (extending the six

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month bond hearing requirement to individuals held under 8 U.S.C. §§ 1225(b), 1226(a),

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and 1226(c)). The Ninth Circuit has set forth a myriad of procedural safeguards available

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to noncitizens subject to prolonged detention.3 Paramount to the discussion at bar is the

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government’s duty to automatically schedule a bond hearing before an IJ for detainees

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every six months. See Rodriguez III, 804 F.3d at 1085, 1089 (emphasis added).4 In

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addition, the government bears the burden of justifying its detainee’s prolonged

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imprisonment by establishing through clear and convincing evidence that he is a flight

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risk or a danger to the community. Singh, 638 F.3d at 1205; Tijani, 430 F.3d at 1242.

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During the bond hearing, an IJ must consider alternatives to detention. Rodriguez III,

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804 F.3d at 1074. Alternatives include reasonable conditions of supervision, such as

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electronic monitoring through ISAP. Id. at 1087-88.

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IJs are a specialized and experienced group within the Department of Justice

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already entrusted to make determinations about the government’s legitimate interest in

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the further deprivation of a noncitizen’s liberty. Id. at 1089. “The power to order a bail

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hearing before an [IJ] is the type of practice and workable remedy within the district

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court’s broad equitable powers.” Mau v. Chertoff, 562 F. Supp. 2d 1107, 1114 (S.D. Cal.

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2008) (citing Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (“[i]n the constitutional

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adjudication as elsewhere, equitable remedies are a special blend of what is necessary,

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In addition to the procedural safeguards at bar in Petitioner’s case, the Ninth Circuit requires the
following procedures for prolonged detention bond hearings: (1) the IJ must take into account the
cumulative duration of detainment, where the government has a stronger burden the longer detention
persists, Rodriguez III, 804 F.3d at 1088-89; (2) the IJ should consider whether there may be some
impediments to the noncitizen’s removal, id. at 1089 n.18 (citing Owino v. Napolitano, 575 F.3d 952,
955-56 (9th Cir. 2009)); (3) the government must make a contemporaneous record of the hearing, such
that a transcript can be made available for an appeal of the bond determination, see Singh, 638 F.3d at
1207.
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Although the procedural guidelines set forth in Rodriquez III were established for noncitizens detained
under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), Diouf expressly requires the same guidelines for
detainees held under 8 U.S.C. § 1231(a)(6). Diouf, 634 F.3d at 1091 (asserting that individuals detained
under § 1231(a)(6) are entitled to the same procedural safeguards against prolonged detention as
individuals detained under § 1226(a)).
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what is fair, and what is workable.”)). “The Ninth Circuit has further held, both

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explicitly and implicitly, that courts have the authority to remedy prolonged detention . . .

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by ordering the government to provide an individualized bond hearing before an IJ.”

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Straube v. Chertoff, No. 07cv1751 JM (NLS), 2008 WL 3925680, at *3-5 (S.D. Cal.

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2008) (citing Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008); Casas-Castrillon,

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535 F.3d 942; Tijani, 430 F.3d 1241). Tijani was the first to authorize the district court to

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order an expeditious bond hearing before an IJ where a noncitizen had been subjected to

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prolonged detention. Tijani, 430 F.3d at 1242 (remanding a habeas corpus case to the

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district court with instructions to order a bond hearing before an IJ within sixty days and,

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if the bond hearing is not provided, grant petitioner’s writ); see also Straube, 2008 WL

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3925680, at *3 (identifying Tijani as the first Ninth Circuit decision to authorize such a

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remedy). Tijani’s progeny demonstrates a consistent exercise of the district court’s

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equitable power to order an individualized bond hearing before an IJ. Casas-Castrillon,

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535 F.3d at 951; see also Rodriguez v. Robbins, 715 F.3d 1127, 1130 (9th Cir. 2013)

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(“Rodriguez II”) (affirming district court’s preliminary injunction requiring the

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government to “provide each [detainee] with a bond hearing” before an IJ and to “release

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each Subclass member on reasonable conditions of supervision . . . unless the government

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showed by clear and convincing evidence that continued detention was justified”);

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Rodriguez III, 804 F.3d at 1066-73; Judulang v. Chertoff, 535 F. Supp. 2d 1129, 1135

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(S.D. Cal. 2008) (ordering the government to provide petitioner a bond hearing before an

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IJ within thirty days); Mustanich v. Gonzales, No. 07cv1100 WQH (LSP), 2007 WL

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2819732, at *8, 11 (S.D. Cal. 2007) (finding petitioner’s four-year detention

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unreasonable and ordering the government to provide a bond hearing before an IJ within

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ten days). A bond hearing before an IJ aptly provides the government with the

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opportunity to establish that its detainee is a flight risk or a danger to the community.

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Tijani 430 F.3d at 1242; Mustanich, 2007 WL 2819732, at *10 (“consistent with Tijani,

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the government should be given the opportunity to establish that Petitioner is a flight risk

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or a danger to the community in a bail hearing before an IJ.”); see also Mau, 549 F. Supp.

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2d at 1253.

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For more than eighteen months, Petitioner has remained under the trusted custody,

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care, and supervision of Respondents. Over six months of Petitioner’s detention has

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occurred after Petitioner’s mandatory removal period ended. On July 28, 2017,

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Respondents independently denied Petitioner’s release on bond, determining that

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Petitioner remained a danger to the community. (See ECF No. 1-2 at 4.) While there is

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no indication that Petitioner submitted an application with the Immigration Court for

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review of Respondents’ bond determination, it is not Petitioner’s duty to do so. It is

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Respondents’ responsibility to, at a minimum, safeguard Petitioner’s liberty interests by

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automatically providing him with a bond hearing before an IJ after each six month period

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of detainment. See Rodriguez III, 804 F.3d at 1085, 1089. It is also Respondents’ burden

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to prove to the IJ that Petitioner’s continued imprisonment is justified. See Singh, 638

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F.3d at 1205; Tijani, 430 F.3d at 1242. Yet, Respondents have failed to provide

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Petitioner with a bond hearing before an IJ. The Court finds the IJ is uniquely qualified

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and situated to make neutral administrative determinations about Petitioner’s eligibility

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for release on bond and/or placement in a supervised release program such as ISAP. See

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Rodriguez III, 804 F.3d at 1087-89. Meanwhile, this Court lacks the factual support to

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make a determination about Petitioner’s risk of flight or dangerousness to the community.

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As such, it is appropriate and consistent with Ninth Circuit jurisprudence to provide

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Respondents with an opportunity to establish such facts before an IJ. See Prieto-Romero,

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534 F.3d 1053; Casas-Castrillon, 535 F.3d 942; Tijani, 430 F.3d 1241. Furthermore, it is

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within the purview of this Court’s equitable powers to order Respondents to provide

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Petitioner with an expeditious bond hearing before an IJ. See Mau, 562 F. Supp. 2d at

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1114. Accordingly, this Court orders Respondents to provide Petitioner a hearing within

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twenty days of this order before an IJ with the power to grant him bond and/or ISAP

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placement.

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IV.

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Conclusion

The Court GRANTS IN PART and DENIES IN PART Petitioner’s Petition for
Writ of Habeas Corpus.

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IT IS HEREBY ORDERED that:

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(1)

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Petitioner’s request for immediate release or, in the alternative, ISAP
placement is DENIED.

(2)

Respondents are ORDERED to provide petitioner a hearing within twenty

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days of this order before an immigration judge with the power to grant him

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bond and/or ISAP placement.

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IT IS SO ORDERED.
Dated: February 13, 2018

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