Yagao v. Figueroa et al

Filing 9

ORDER Granting in Part and Denying in Part 6 Petitioner's Request for Hearing; Ordering Bond Hearing be Provided Within 35 Days. The Court GRANTS IN PART AND DENIES IN PART Petitioner's motion for a hearing on his petition. (Doc. No. 6.) The Court DENIES ordering Petitioner's immediate removal from immigration detention. However, the Court GRANTS a bond hearing for Petitioner. Within 35 days of the date of this order, Petitioner must be provided with a bond hearing before an imm igration judge. At that hearing, the government must establish by clear and convincing evidence that Petitioner is a flight risk or a danger to the community in order to continue his detention pending his appeal before the Ninth Circuit. Signed by Judge Anthony J. Battaglia on 3/29/2019. (acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Macjhay Yagao,

Case No.: 17-cv-2224-AJB-MDD
Petitioner,

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ORDER:

v.
Fred Figueroa, Warden Otay Mesa
Detention Center, et al.,

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(1) GRANTING IN PART AND
DEYING IN PART PETITIONER’S
REQUEST FOR A HEARING
(Doc. No. 6); and

Respondents.

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(2) ORDERING A BOND HEARING
BE PROVIDED WITHIN 35 DAYS.

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Before the Court Petitioner Macjhay Yagao’s request for a hearing on his petition

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for writ of habeas corpus. (Doc. No. 6.) Petitioner alleges that he has been detained, at the

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time of the motion’s filing, for over forty-two months without an end in sight and has gone

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over a year since a bond hearing before an Immigration Judge. (Id. at 1.) Petitioner argues

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that the “BIA’s final decision denying him release on bond constituted legal and

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constitutional error.” (Id.) Complicating matters is the fact that the Supreme Court

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overturned the Ninth Circuit’s practice of requiring a bond hearing every six months.

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However, as elaborated on herein, due process still requires Petitioner be afforded a bond

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hearing, although the Court opts to decline to release Petitioner, without prejudice.

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Because it has been nearly two years without a bond hearing, the Court GRANTS IN
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PART AND DENIES IN PART Petitioner’s motion. (Doc. No. 6.) The Court ORDERS

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a bond hearing be provided within 35 days but DENIES releasing Petitioner.

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I.

LEGAL STANDARDS

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A district court may grant a writ of habeas corpus when a petitioner is “in custody

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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2241(c)(3). “[T]he Fifth Amendment entitles aliens to due process of law in deportation

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proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003).

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II.

BACKGROUND

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Petitioner files this writ for habeas corpus under 28 U.S.C. § 2241 challenging the

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Board of Immigration Appeals’ (“BIA”) decision denying him bond. He raises four

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challenges. First, he argues the BIA erred in finding Petitioner’s past criminal background

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supported denial of bond based on dangerousness. Second, Petitioner argues the decision

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to deny his bond was arbitrary when compared to bonds which were granted in cases more

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serious than his. Third, Petitioner argues that the BIA failed to follow Ninth Circuit

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precedent because they failed to change the due process analysis as the length of his

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detention grew. And finally, the BIA erred in finding his case was not subject to bond

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hearings every six months under Ninth Circuit precedence. Petitioner requests that the

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Court reverse the BIA’s decision and release Petitioner on conditional parole.

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III.

DISCUSSION

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In the current motion, Petitioner requests that he be released on bond, arguing the

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government failed to meet its legal burden for continued detention. (Doc. No. 6.) Petitioner

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also argues that his continued detention without a bail hearing violates due process. (Id.)

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Under now-overruled Ninth Circuit precedence, detainees were given a bond hearing every

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

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reversed by Jennings v. Rodriguez, 138 S. Ct. 830, 847, (2018) (holding that Section

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“1226(c) mandates detention of any alien falling within its scope and that detention may

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end prior to the conclusion of removal proceedings ‘only if’ the alien is released for

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witness-protection purposes.”). The Supreme Court in Jennings overruled mandatory bond
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hearings, stating the only mandated hearing is for witness-protection purposes. Jennings,

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138 S. Ct. at 847. However, Jennings only held that aliens detained are not statutorily

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entitled to periodic bond hearings. Jennings, 138 S. Ct. at 845. “The Supreme Court did

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not, however, determine whether arriving aliens facing prolonged detention are entitled to

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a bond hearing as a matter of constitutional Due Process.” Lett v. Decker, 346 F. Supp. 3d

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379, 383 (S.D.N.Y. 2018).

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On remand from Jennings, the Ninth Circuit expressed “grave doubt” that prolonged

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detention without a hearing would satisfy due process. See Rodriguez v. Marin, 909 F.3d

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252, 256 (9th Cir. 2018) (“Arbitrary civil detention is not a feature of our American

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government.”). And district courts in California have likewise found that due process

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requires a bond hearing after prolonged detention. See Rodriguez v. Nielsen, No. 18-cv-

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4187-TSH, 2019 U.S. Dist. LEXIS 4228, at *17–19 (N.D. Cal. Jan. 7, 2019) (hearing

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necessary after six months); Gonzalez v. Bonnar, No. 18-cv-5321-JSC, 2019 WL 330906,

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at *3–4 (N.D. Cal. Jan. 26, 2019) (13 months); Meza v. Bonnar, No. 18-cv-2708-BLF,

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2018 WL 2554572, at *3 (N.D. Cal. June 4, 2018) (13 months). The Ninth Circuit has

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ordered briefing in Rodriguez v. Jennings to address the very concern Petitioner raises and

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district courts have addressed. The Court ordered that the briefs address:

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whether the Constitution requires that, in bond hearings for aliens detained for
more than six months under §§ 1225(b), 1226(c), or 1226(a), the alien is
entitled to release unless the government demonstrates by clear and
convincing evidence that the alien is a flight risk or a danger to the community
or rather whether the government's proof of flight risk or danger could be by
only a preponderance of the evidence, whether the length of the alien’s
detention must be weighed in favor of release, and whether new bond hearings
must be afforded automatically every six months.
Rodriguez v. Jennings, 887 F.3d 954, 956 (9th Cir. 2018).

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The law post-Jennings regarding when and whether repeated bond hearings are

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required is quite unsettled. However, the Court agrees with the many district courts finding

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that prolonged detention without a bond hearing likely violates due process. See cases,

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supra. A recent district court decision in the Northern District of California discussed this
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issue in detail, and the Court finds its analysis persuasive. Gonzalez v. Bonnar, No. 18-cv-

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05321-JSC, 2019 WL 330906, at *2–7 (N.D. Cal. Jan. 25, 2019). In general, “[a]s detention

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continues past a year, courts become extremely wary of permitting continued custody

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absent a bond hearing.” Muse v. Sessions, No. 18-CV-0054 (PJS/LIB), 2018 WL 4466052,

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at *4 (D. Minn. Sept. 18, 2018) (collecting cases re: the same).

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As of this order, Petitioner has been detained for roughly over four years. Further,

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Petitioner has gone nearly two years without a bond hearing, as his last hearing was

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April 25, 2017. Due to the uncertainty of this issue in the Ninth Circuit, the two Supreme

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Court cases on this subject, and the pending briefing in Rodriguez, the Court declines to

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order Petitioner’s release at this time. However, the Court does find that the government’s

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failure to give Petitioner another bond hearing likely violates his due process rights in

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accordance with the decisions of other district courts in this district and around the county,

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and accordingly ORDERS Petitioner be provided one.

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The Respondent’s opposition fails to persuade the Court otherwise. The

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Respondent’s brief mischaracterizes Petitioner’s nuanced arguments by framing it as

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Petitioner simply complaining he was not granted the automatic six-month review as

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previously required under Rodriguez. (Doc. No. 8 at 1.) Respondent notes Petitioner has

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not received another bond hearing because Jennings reversed that rule. (Id.) Respondent’s

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fail to respond meaningfully to Petitioner’s due process arguments and the plethora of

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district court rulings on this matter post-Jennings.1

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Finally, the Supreme Court’s recent decision in Nielsen v. Preap, No. 16-1363, slip

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op. at , --- U.S. --- (U.S. Mar. 19, 2019), does not sway the Court’s analysis. In Nielsen,

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the issue before the Court surrounded interpretation of the phrase “when the alien is

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released” from custody found in 8 U.S.C. § 1226(c). That section states:

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While the Court notes briefing on this matter was done in May 2018, only months postJennings, the Respondents (and Petitioner for that matter) could have petitioned the Court
to file supplemental briefing given the subsequent district court decisions between then and
now.
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The Attorney General shall take into custody any alien who-(A) is inadmissible by reason of having committed any offense covered
in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered
in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis
of an offense for which the alien has been sentence1 to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or
deportable under section 1227(a)(4)(B) of this title,

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when the alien is released, without regard to whether the alien is released on
parole, supervised release, or probation, and without regard to whether the
alien may be arrested or imprisoned again for the same offense.

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As the Supreme Court detailed, the Ninth Circuit had “held that this mandatory-detention

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requirement applies only if a covered alien is arrested by immigration officials as soon as

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he is released from jail.” Nielsen, 2019 WL 1245517, at *3. “If the alien evades arrest for

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some short period of time—according to respondents, even 24 hours is too long—the

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mandatory-detention requirement is inapplicable, and the alien must have an opportunity

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to apply for release on bond or parole.” Id. This distinction mattered because the Ninth

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Circuit was treating § 1226(a) detainees and § 1226(c) detainees as separate categories of

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detainees. Those arrested under § 1226(a) could be eligible for a bond hearing, since the

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release provision is only found in § 1226(a)(2), and those arrested under § 1226(c) face

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mandatory detention. See Nielsen, 2019 WL 1245517, at *9 (explaining the Ninth Circuit’s

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reasoning). Essentially, the Ninth Circuit believed unless an arrest was effectuated

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immediately upon release from prior criminal detention, the detainee would be arrested

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under § 1226(a), and could enjoy the option to be released on bond. Id.

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The Supreme Court ultimately rejected that stance and reversed the judgments

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below. Id. Helpful to our analysis is Justice Kavanaugh’s concurrence, which notes the

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“narrowness of the issue before us. . . .” Id. at *14 (Kavanaugh, J., concurring). He states

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that the narrow issue before the Court is “whether, under § 1226, the Executive Branch’s

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mandatory duty to detain a particular noncitizen when the noncitizen is released from
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criminal custody remains mandatory if the Executive Branch fails to immediately detain

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the noncitizen when the noncitizen is released from criminal custody.” (Id. (emphasis in

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original).) The Court concluded that “when . . . released” applies “when there is a release”

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and rejected the Ninth Circuit’s reliance on immediacy. Id. at *13.

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The Supreme’s Court analysis in Nielsen does not affect Petitioner’s arguments or

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this Court’s findings. The Supreme Court explained that mandatory detention under

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§ 1226(c) arose from a concern “that deportable criminal aliens who are not detained

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continue to engage in crime and fail to appear for their removal hearings in large numbers.

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To address this problem, Congress mandated that aliens who were thought to pose a

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heightened risk be arrested and detained without a chance to apply for release on bond or

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parole.” Id. at *4 (internal citations omitted). It makes sense, then, why subsection (c) does

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not permit bond hearings. However, Petitioner’s argument does not challenge prolonged

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detention without a hearing under the statutory framework and § 1226(c). Rather, Petitioner

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asserts that prolonged detention without a hearing triggers constitutional issues and violates

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due process. Nielsen does not address this.

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IV.

CONCLUSION

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For the reasons stated above, the Court GRANTS IN PART AND DENIES IN

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PART Petitioner’s motion for a hearing on his petition. (Doc. No. 6.) The Court DENIES

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ordering Petitioner’s immediate removal from immigration detention. However, the Court

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GRANTS a bond hearing for Petitioner. Within 35 days of the date of this order, Petitioner

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must be provided with a bond hearing before an immigration judge. At that hearing, the

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government must establish by clear and convincing evidence that Petitioner is a flight risk

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or a danger to the community in order to continue his detention pending his appeal before

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the Ninth Circuit.

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IT IS SO ORDERED.
Dated: March 29, 2019

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