Singh v. Wilkinson et al

Filing 17

ORDER GRANTING IN PART The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. # 6 ). Within 14 days from the date of this Order, Respondents shall take Applicant before an immigration judge for an individualized bond h earing in which the government shall bear the burden to demonstrate by clear and convincing evidence that Applicant is a flight risk or a danger to the community; and the Clerk of Court is directed to close this case, by Judge Christine M. Arguello on 6/4/2021. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 21-cv-00715-CMA
BILLA SINGH,
Applicant,
v.
MERRICK B. GARLAND, 1 Attorney General,
JEFFERY D. LYNCH, Denver Field Office Director for Enforcement & Removal, I.C.E.,
and
JOHNNY CHOATE, Warden, Den. Contract Det. Fac.,
Respondents.

ORDER GRANTING IN PART APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on Applicant Billa Singh’s Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Application”) (Doc. # 6). The Court must
construe the Application and other papers filed by Mr. Singh liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the following
reasons, the Court grants the Application to the extent it seeks an individualized bond
hearing.
I. BACKGROUND
Mr. Singh is a native and citizen of India. He became a lawful permanent resident

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Pursuant to Fed. R. Civ. P. 25(d), Attorney General Merrick Garland is automatically substituted as a
Respondent.

of the United States in 2008. In 2015 Mr. Singh was convicted in California of Assault by
Means Likely to Produce Great Bodily Injury and sentenced to two years in prison. (Doc.
# 15-1 (Declaration of Sarah Garcia) at p.2.) While Mr. Singh was serving his prison
sentence, Immigration and Customs Enforcement (“ICE”) issued a Notice to Appear
charging him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he was
convicted of an aggravated felony. (Id.) He was taken into ICE custody on June 19,
2017, when he was released from prison and he currently is being held at a detention
facility in Aurora, Colorado. (Id. at pp.2, 5.)
Following a hearing on January 9, 2018, the Immigration Judge denied Mr.
Singh’s request for a custody redetermination, finding that Mr. Singh failed to establish
he is not a danger to the community. (Id. at p.4.) A second motion for custody
redetermination was denied following a hearing in October 2018 because the
Immigration Judge found that Mr. Singh failed to show materially changed
circumstances since his initial bond hearing. (Id. at p.5.) A request for a third custody
redetermination hearing was denied in June 2020. (Id. at p.6.)
Removal proceedings before the Immigration Judge lasted until April 2018 when
all applications for relief were denied. (Id. at pp.3-5.) In January 2020 the Board of
Immigration Appeals denied Mr. Singh’s appeal from the decision of the Immigration
Judge. (Id. at p.6.) Mr. Singh then filed a Petition for Review in the United States Court
of Appeals for the Ninth Circuit. (Id.) The Ninth Circuit stayed removal and the Petition
for Review remains pending. (Id. at p.7.) According to Mr. Singh, the Ninth Circuit has
not set a schedule for oral arguments. Respondents assert that in April 2021 the Ninth
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Circuit granted Mr. Singh’s motion to submit the case on the briefs. (Id.)
Mr. Singh claims in the Application that his continued detention violates due
process. More specifically, he contends the Constitution limits the duration of
immigration detention and that, if “detention becomes unreasonably prolonged, due
process compels the government to furnish [detainees] with an individualized
determination as to their flight risk or dangerousness to people or property.” (Doc. # 6 at
p.5.) Mr. Singh maintains he has been in immigration custody for approximately four
years, and it will be months and possibly years before his pending Petition for Review is
resolved by the Ninth Circuit. He further maintains that his detention is likely to continue
beyond the Ninth Circuit’s decision because of “[t]he strength of [his] Petition for Judicial
Review” and “the likelihood of a remand to the Immigration court or to the BIA.” (Doc. #
6 at p.7.) As relief Mr. Singh asks the Court to order his release within thirty days unless
Respondents schedule an individualized bond hearing before an Immigration Judge at
which the government bears the burden to demonstrate by clear and convincing
evidence that Mr. Singh is a flight risk or a danger to the community.
On April 6, 2021, Respondents were ordered to show cause why the Application
should not be granted. On May 6, 2021, Respondents filed a Response to Order to
Show Cause (Doc. # 15). On May 28, 2021, Mr. Singh filed a Reply (Doc. # 16).
II. ANALYSIS
The Court has jurisdiction under 28 U.S.C. § 2241 to consider Mr. Singh’s
constitutional claim. See Demore v. Kim, 538 U.S. 510, 517 (2003).

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A. Statutory Framework for Detention
A little background is helpful to provide context for the constitutional claim. In
general, detention of aliens within the United States is governed by 8 U.S.C. § 1226 and
8 U.S.C. § 1231. Section 1226 grants authority to detain aliens prior to entry of a final
order of removal and § 1231 authorizes detention during the removal period that
commences after entry of a final order of removal. The removal period begins on the
latest of the following dates:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of
the removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B). As noted above, Mr. Singh has filed a Petition for Review of
the removal order and the Ninth Circuit has granted a stay of removal. Therefore,
pursuant to § 1231(a)(1)(B)(ii), the removal period has not started and Mr. Singh’s
detention is governed by § 1226.
Section 1226(a) generally grants the Attorney General discretion to arrest and
detain an alien pending a decision on whether the alien should be removed. However, §
1226(c) requires detention of certain aliens, including aliens who are “deportable by
reason of having committed any offense covered in [8 U.S.C. § 1227(a)(2)(A)(iii)].” 8
U.S.C. § 1226(c)(1)(B). Title 8 U.S.C. § 1227(a)(2)(A)(iii) states that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.”
Mr. Singh does not challenge the determination that he was convicted of a
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qualifying aggravated felony and he apparently concedes he is being detained in
accordance with § 1226(c)(1)(B). He also does not contend that the sole exception to
mandatory detention under § 1226(c), which is found in § 1226(c)(2) and relates to
witness protection, is applicable. As a result, his detention is mandatory. See Jennings
v. Rodriguez, 138 S. Ct. 830, 847 (2018) (“We hold that § 1226(c) mandates detention
of any alien falling within its scope and that detention may end prior to the conclusion of
removal proceedings ‘only if’ the alien is released for witness-protection purposes.”).
Because Mr. Singh is being detained pursuant to § 1226(c), he does not have a
statutory right to a bond hearing or a custody redetermination hearing. See Jennings,
138 S. Ct. at 846, 850-51 (rejecting arguments that § 1226(c) should be interpreted to
include an implicit 6-month time limit on the length of mandatory detention and that
aliens detained under § 1226(c) must be given periodic bond hearings).
B. Constitutionality of Continued Detention
“It is well established that the Fifth Amendment entitles aliens to due process of
law in deportation proceedings.” Demore, 538 U.S. at 523 (internal quotation marks
omitted). It is equally clear that “[d]etention during removal proceedings is a
constitutionally permissible part of that process.” Id. at 531. The question before the
Court is whether Mr. Singh’s ongoing detention has become constitutionally
unreasonable such that he is entitled to an individualized bond hearing as a matter of
due process.
Respondents argue the Tenth Circuit’s decision in Soberanes v. Comfort, 388
F.3d 1305 (10th Cir. 2004), controls the outcome of this case and requires the Court to
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reject Mr. Singh’s due process claim. In Soberanes, the Tenth Circuit considered the
detention of an alien subject to a final order of removal who had a petition for review of
the denial of his motion to reopen the deportation proceeding pending before the Ninth
Circuit. Id. at 1307-08. Because the alien was subject to a final order of removal, the
Tenth Circuit considered the challenge to detention under the framework in Zadvydas v.
Davis, 533 U.S. 678 (2001), which allows confinement of an alien under 8 U.S.C. §
1231 “‘until it has been determined that there is no significant likelihood of removal in
the reasonably foreseeable future,’ and the onus is on the alien to ‘provide[] good
reason to believe that there is no [such] likelihood’ before ‘the Government must
respond with evidence sufficient to rebut that showing.’” Soberanes, 388 F.3d at 131011 (quoting Zadvydas, 533 U.S. at 701) (brackets in original). The Tenth Circuit
concluded the detention in Soberanes, which was “directly associated with a judicial
review process that has a definite and evidently impending termination point,” was
“clearly neither indefinite nor potentially permanent like the detention held improper in
Zadvydas” and, instead, was “more akin to detention during the administrative review
process [under § 1226(c)] which was upheld in Demore v. Kim, 538 U.S. 510, 527-29,
531, 123 S. Ct. 1708, 155 L. Ed.2d 724 (2003) (“Detention during removal proceedings
is a constitutionally permissible part of that process.” ).” Soberanes, 388 F.3d at 1311.
The Court does not agree that Soberanes controls the outcome in this action
because the alien in Soberanes was detained under § 1231 and his detention was
reviewed under Zadvydas. Here, Mr. Singh is being detained under § 1226(c) and is not
asserting a Zadvydas claim. The Tenth Circuit’s reference in Soberanes to the detention
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at issue in Demore, which admittedly involved § 1226(c), in rejecting the Zadvydas
claim does not alter this conclusion. Furthermore, to the extent Soberanes is relevant to
a claim challenging continued detention under § 1226(c), it is important to note that the
Tenth Circuit affirmed the denial of habeas relief without prejudice to the filing of a new
§ 2241 petition if circumstances change. See id. Thus, Soberanes cannot be read to
justify detention solely because a petition for review is pending as Respondents
contend. With respect to changed circumstances, Mr. Singh’s detention for
approximately four years is significantly longer that the detention at issue in Soberanes,
where the alien was taken into custody in July 2002 and the Tenth Circuit’s decision
was issued twenty-six months later on September 21, 2004.
For the same reasons discussed in Villaescusa-Rios v. Choate, No. 20-CV03187-CMA, 2021 WL 269766 (D. Colo. Jan. 27, 2021), the Court also finds that
Demore does not preclude the Court from ordering an individualized bond hearing.
In Demore, the Supreme Court considered the constitutionality of a sixmonth period of mandatory detention pursuant to Section 1226(c). Though
Respondents are correct that the Court in Demore found no constitutional
violation, they remove the Court’s holding from its factual context. The
Demore Court’s holding that Section 1226(c) permissibly imposes
mandatory detention for the “brief period necessary for . . . removal
proceedings,” 538 U.S. at 513, 523, is rooted in the reality that, at that
period in time, mandatory detentions were brief:
in 85% of the cases in which aliens are detained pursuant to
§ 1226(c), removal proceedings are completed in an
average time of 47 days and a median of 30 days. In the
remaining 15% of cases, in which the alien appeals the
decision of the Immigration Judge to the Board of
Immigration Appeals, appeal takes an average of four
months, with a median time that is slightly shorter. . . . In
sum, the detention at stake under § 1226(c) lasts roughly a
month and a half in the vast majority of cases in which it is
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invoked, and about five months in the minority of cases in
which the alien chooses to appeal.
Id. at 529-30 (citations omitted). Moreover, Justice Kennedy’s concurrence
reinforced that a short duration of detention was dispositive of the
majority’s holding. He reasoned that because “the Due Process Clause
prohibits arbitrary deprivations of liberty, a lawful permanent resident alien
. . . could be entitled to an individualized determination as to his risk of
flight and dangerousness if the continued detention became unreasonable
or unjustified.” Demore, 538 U.S. at 532 (Kennedy, J., concurring).
Accordingly, this Court agrees with the District of Minnesota and
numerous of other federal district courts in concluding that “Demore
expressed the understanding that detention under § 1226(c) would be
brief, and this assumption was ‘key to [the Court’s] conclusion that the law
complied with due process.’” Muse v. Sessions, 409 F. Supp.3d 707, 716
(D. Minn. 2018) (citation omitted).
Villaescusa-Rios, 2021 WL 269766 at *2 (footnote omitted, brackets in original). Thus,
the Court “applied a multi-factor balancing test to evaluate whether mandatory detention
without an individualized bond hearing has become unconstitutionally prolonged.” Id. at
*3.
Respondents argue that Villaescusa-Rios and similar cases involved aliens who
were not subject to a final order of removal and did not have petitions for review
pending in the court of appeals, and thus the cases “do not suggest that this Court
should not follow Soberanes.” (Doc. # 15 at pp.7-8.) The Court is not persuaded
because, as discussed above, Soberanes is distinguishable. Therefore, the Court will
consider the same factors addressed in Villaescusa-Rios. Those factors are:
(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the conditions of detention; (4) delays in the removal
proceedings caused by the detainee; (5) delays in the removal
proceedings caused by the government; and (6) the likelihood that the
removal proceedings will result in a final order of removal.
Villaescusa-Rios, 2021 WL 269766 at *3.
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Regarding the first factor, Mr. Singh’s detention to date has lasted approximately
four years, including approximately 32 months since his most recent custody
redetermination hearing in October 2018. Respondents cite no authority that it is
constitutionally permissible to detain someone for such a lengthy duration without due
process and district courts have found much shorter periods of detention to be
unreasonable. See, e.g., Singh v. Choate, No. 19-CV-00909-KLM, 2019 WL 3943960
(D. Colo. Aug. 21, 2019) (ordering individualized bond hearing where detention lasted
over 20 months), appeal dismissed, No. 19-1416, 2020 WL 2028502 (10th Cir. Jan. 22,
2020); Muse, 409 F. Supp.3d at 716 (ordering individualized bond hearing where
detention lasted over 14 months and noting that, “[a]s detention continues past a year,
courts become extremely wary of permitting continued custody absent a bond
hearing.”). This factor weighs heavily in Mr. Singh’s favor.
“Second, the Court considers how long the detention will likely continue in the
absence of judicial relief.” Villaescusa-Rios, 2021 WL 269766 at *3. There is no
indication that Mr. Singh will be released while his petition for review is pending and
Respondents assert only that “a decision [from the Ninth Circuit] is likely to come soon.”
(Doc. # 15 at p.1.) Because there is nothing in the record before the Court to indicate
Mr. Singh’s detention will not last for several more months or even longer, this factor
also weighs in his favor.
The third factor considers the conditions of Mr. Singh’s detention. “In analyzing
this factor, courts consider whether ‘the facility for the civil immigration detention is
meaningfully different from a penal institution for criminal detention.’” Villaescusa-Rios,
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2021 WL 269766 at *4 (quoting Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL
2357266 (S.D.N.Y. May 23, 2018)). “‘The more that the conditions under which the alien
is being held resemble penal confinement, the stronger his argument that he is entitled
to a bond hearing.’” Id. (quoting Muse, 409 F. Supp.3d at 717).
Here, Respondents assert that Mr. Singh is being held in a part of the detention
facility that exclusively holds immigration detainees; immigration detainees at that
facility have no contact with and are subject to different rules than detainees being held
in the custody of the United States Marshal in a different part of the facility; and Mr.
Singh typically is allowed outside of his detention cell and given access to the day room,
showers, and recreation yard from 5:30 a.m. until 10:30 p.m. on weekdays and until
midnight on weekends. However, other than being held exclusively with other
immigration detainees, Respondents do not explain how these conditions differ from
penal confinement. Accordingly, this factor also weighs in Mr. Singh’s favor.
The fourth and fifth factors address the reasons for delays in the removal
proceedings. There is no allegation or indication that the Government has delayed
those proceedings. Mr. Singh concedes he requested continuances during the
proceedings before the Immigration Judge totaling about 105 days. Respondents note
that Mr. Singh also requested and received extensions of time to file briefs in his appeal
to the BIA and in connection with his petition for review in the Ninth Circuit and Mr.
Singh does not contend otherwise. Although there is no indication the requests for
continuances and extensions of time were sought for an improper purpose, these
factors weigh in favor of Respondents.
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“Sixth, and finally, the Court considers the likelihood that the removal
proceedings will result in a final order of removal.” Villaescusa-Rios, 2021 WL 269766 at
*5. The parties do not address this factor but the Court notes that Mr. Singh has been
denied relief in the removal proceedings thus far. Accordingly, this factor appears to
weigh in favor of Respondents.
On balance, and particularly in light of the long duration of his detention to date,
the Court finds that the relevant factors weigh in Mr. Singh’s favor. Therefore, continued
detention requires an individualized bond hearing before an Immigration Judge to
comport with due process.
III. CONCLUSION
For the foregoing reasons, it is ORDERED as follows:
• The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(Doc. #6) is GRANTED;
• Within 14 days from the date of this Order, Respondents shall take Applicant
before an immigration judge for an individualized bond hearing in which the government
shall bear the burden to demonstrate by clear and convincing evidence that Applicant is
a flight risk or a danger to the community; and
• The Clerk of Court is directed to close this case.
DATED June 4, 2021.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge
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