Manzanarez v. Holder et al

Filing 16

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re: 1 . Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/11/2013. (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on Tuesday, October 15, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JORGE ROCHA MANZANAREZ,

)
)
Petitioner,
)
)
vs.
)
)
ERIC HOLDER, United States
)
Attorney General; MICHAEL
)
SAMANIEGO, District Director, )
Investigations and Customs
)
Enforcement; DAVID SHINN,
)
Warden, Honolulu Federal
)
Detention Center
)
)
Defendants.
)
_____________________________ )

Civ. No. 13-00354 SOM/BMK
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

I.

BACKGROUND
Before this court is a habeas corpus Petition filed by

Petitioner Jorge Rocha Manzanarez, asserting that his detention
without bond by United States Immigration and Customs Enforcement
(“ICE”) “violates inter alia, his due process rights under the
Fifth Amendment of the Constitution of the United States.”
Petition at 4, ECF No. 1.

This court denies the Petition.

On April 10, 2013, Manzanarez was arrested by ICE for
having allegedly entered the United States without authorization.
Petition at 2, ECF No. 1.

Under 8 U.S.C. § 1226(a), enacted as

part of the Illegal Immigration and Immigrant Responsibility Act
of 1996 (“IIRIRA”), the federal government may arrest and detain
aliens pending a decision regarding their removability.

Under

§ 1226(a), the government “may continue to detain the arrested
alien, . . . [or] release the alien on a bond of at least $1,500
. . . or conditional parole.”

8 U.S.C. § 1226(a).

It appears

that an initial determination was made to detain Manazanarez and
that he sought a redetermination by an immigration judge (“IJ”),
pursuant to

8 C.F.R. § 1236.1 (d)(1).

Bond redetermination hearings occurred on April 23,
2013, and May 14, 2013.

Petition at 4, ECF No. 1.

The IJ noted

that Manzanarez was not a “criminal alien” within the meaning of
8 U.S.C. § 1226(c) and therefore was not statutorily ineligible
for bond.1

ECF No. 6-1.

The IJ noted that under the regulations

“the Respondent has the burden of showing to the [judge that] (1)

1

"Mandatory detention under Section 1226(c) applies to
aliens who are inadmissible on account of having committed a
crime involving moral turpitude or a controlled substance
offense, on account of having multiple criminal convictions with
an aggregate sentence of five years or more of confinement, on
account of connections to drug trafficking, prostitution, money
laundering, or human trafficking, on account of having carried
out severe violations of religious freedom while serving as a
foreign government official, or on account of having been
involved in serious criminal activity and asserting immunity from
prosecution; aliens who are deportable on account of having been
convicted of two or more crimes involving moral turpitude, an
aggravated felony, a controlled substance offense, certain
firearm-related offenses, or certain other miscellaneous crimes;
aliens who are deportable on account of having committed a crime
of moral turpitude within a certain amount of time since their
date of admission for which a sentence of one year or longer has
been imposed; and aliens who are inadmissible or deportable
because of connections to terrorism. See 8 U.S.C. § 1226(c)
(cross-referencing 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii),
1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D),
1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B))." Rodriguez v.
Robbins, 715 F.3d 1127, 1132 (9th Cir. 2013).
2

he is not a danger to the community and (2) he is not a flight
risk.”

Id.

The IJ weighed nine factors set out in Matter of

Guerra, 24 I. & N. Dec. 37, 38-40 (BIA 2006).

Id.

Relying

principally on three convictions Manzanarez had accrued for
driving under the influence of alcohol in 1995, 2000, and 2012,
the IJ denied bond, finding that Manzanarez had failed to meet
his burden of showing that he was not a danger to the community,
even while acknowledging Manzanarez’s stable employment history,
19 years of residence in the United States and two children who
are United States citizens.

Id. at 3.

Manzanarez timely appealed to the Board of Immigration
Appeals (“BIA”).

On July 9, 2013, the BIA, upon de novo review,

“agree[d] with the Immigration Judge that the record support[ed]
a conclusion that the respondent did not carry his burden of
proving that he is not a danger to the community.”

ECF No. 6-2.

As a result, Manzanarez was denied bond and continues to be
detained at the Federal Detention Center in Honolulu.
at 4, ECF No. 1.

Petition

Manzanarez has been deemed removable by ICE,

and his application for cancellation of removal has been denied
by an IJ.

Petition at 9, ECF No. 1.

Manzanarez’s appeal from

the IJ’s removal decision is pending before the BIA.
meantime, he seeks release on bond.

3

Id.

In the

II.

JURISDICTION
This court has jurisdiction under 28 U.S.C. § 2241 to

address “questions of law in habeas corpus proceedings brought by
aliens challenging Executive interpretations of the immigration
laws.”

INS v. St. Cyr, 533 U.S. 289, 306-07 (2001).
While 8 U.S.C. § 1226(e) strips federal courts of

jurisdiction over detention matters committed to the “Attorney
General's discretionary judgment,” such as the weighing of facts
and the credibility of witnesses in a bond hearing, the Ninth
Circuit has been clear that “it does not limit habeas
jurisdiction over constitutional claims or questions of law.”
Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011); see also
Demore v. Kim, 538 U.S. 510, 517 (2003) (“Section 1226(e)
contains no explicit provision barring habeas review, and we
think that its clear text does not bar respondent's
constitutional challenge to the legislation authorizing his
detention without bail.”).
III.

LEGAL STANDARD
An alien is entitled to a writ of habeas corpus if he

“is in custody in violation of the Constitution or laws or
treaties of the United States.”

28 U.S.C. § 2241.

“When the BIA

conducts a de novo review of the IJ's decision, rather than
adopting the IJ's decision as its own, we review the BIA's
decision.”

Kankamalage v. I.N.S., 335 F.3d 858, 861 (9th Cir.

4

2003).

“We review de novo the BIA's determination of purely

legal questions regarding the [immigration laws], giving
deference to the BIA's interpretation unless that interpretation
is contrary to the plain and sensible meaning of the statute.”
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
However, “[i]n deciding whether agency procedures comport with
due process, we do not defer to the agency.”

Ramirez-Alejandre

v. Ashcroft, 320 F.3d 858, 869 (9th Cir. 2003).
IV.

ANALYSIS
In Manzanarez’s initial petition he argues that his due

process rights under the Fifth Amendment were violated by the
refusal to release him.

Manzanarez agrees with the IJ that a

bond determination turns on the factors articulated in the BIA’s
decision in Guerra.

Petition at 6-7, ECF No. 1.

However,

Manzanarez contends that he “satisfies [these] factors in favor
of a bond” and is therefore entitled to be released.

Id. at 8.

Although denominated by Manzanarez as a constitutional challenge,
this argument actually asks the court to weigh the Guerra
factors.

Manzanarez “does not contend that he was prevented

from presenting his case before the immigration judge or the BIA,
denied a full and fair hearing before an impartial adjudicator or
otherwise denied a basic due process right.”
INS, 246 F.3d 1267, 1271 (9th Cir. 2001).

5

Torres-Aguilar v.

Instead, Manzanarez’s claims relate to perceived
inadequacies in the IJ’s weighing of evidence, matters committed
solely to the executive’s discretionary judgment.2

“Although we

retain jurisdiction to review due process challenges, a
petitioner may not create the jurisdiction that Congress chose to
remove simply by cloaking an abuse of discretion argument in
constitutional garb.”

Id.

The claims in Manzanarez’s petition

plainly fall within those committed to the discretion of the
executive, which this court lacks jurisdiction to review.
In his reply brief, Manzanarez contends for the first
time that the IJ and BIA erred by placing the burden on him to
demonstrate that he is not dangerous, when, in fact, it is “the
government’s burden to prove that the petitioner is a danger to
the community.”

Petitioner’s Reply at 13, ECF No. 7.

For this

proposition, Manzanarez cites exclusively to cases involving
prolonged detention, during which an alien is entitled to a

2

Manzanarez does not even contend that the IJ failed to
take the Guerra factors into account, or that he found factors
outside of the Guerra analysis to be dispositive, actions that
could arguably give rise to due process violations. See, e.g.,
Dela Cruz v. Napolitano, 764 F. Supp. 2d 1197, 1200 (S.D. Cal.
2011) (“Petitioner has stated at least a colorable claim that his
constitutional right to due process was violated by the IJ's
alleged improper exercise of discretion in considering certain
factors not explicitly set forth in Guerra at the bond
hearing.”). Instead, all the challenges Manzanarez brings in his
initial petition go to the weighing of the Guerra factors. If
this court were to subject the IJ’s weighing of evidence to
review, it would make a nullity of the jurisdictional
restrictions Congress enacted.
6

hearing based on the Ninth Circuit’s holding in Casas-Castrillon
v. Department of Homeland Security., 535 F.3d 942, 951 (9th Cir.
2008).

In Casas, the Ninth Circuit held that “[b]ecause the

prolonged detention of an alien without an individualized
determination of his dangerousness or flight risk would be
constitutionally doubtful . . . § 1226(a) must be construed as
requiring the Attorney General to provide the alien with [] a
hearing.”3

Casas-Castrillon, 535 F.3d at 951.

During such a

hearing, “an alien is entitled to release on bond unless the
government establishes that he is a flight risk or will be a
danger to the community.” Id. (emphasis added).
Both sides agree that the May 14 hearing was not a
Casas hearing, but was instead a bond determination procedure
that the government regularly undertakes with respect to aliens
detained pursuant to § 1226(a).

The Casas line of cases is based

3

The alien in Casas was being held pursuant to the
provision in § 1226(c) for the mandatory detention of criminal
aliens. The court in Casas held that “Section 1226(c)'s
mandatory detention provisions apply only until the BIA affirms a
removal order, at which point the government's authority to
detain the alien shifts to § 1226(a).” Rodriguez v. Robbins, 715
F.3d 1127, 1135 (9th Cir. 2013) (citing Casas-Castrillon, 535
F.3d at 948). Detention under § 1226(a) is discretionary. With
the detention of the alien in Casas shifted to § 1226(a), the
Ninth Circuit held that the government had to afford the alien
subject to prolonged detention a bond hearing at which the burden
of proving the need to detain lay with the government. Unlike
the alien in Casas, Manzanarez has always been subject to
§ 1226(a), because he is not a “criminal alien.”
7

on challenges under § 1226(c) to the detention of “criminal
aliens,” for whom detention is mandatory.
The petitioner in Casas had been detained without a
hearing for almost seven years.
944.

Casas-Castrillon, 535 F.3d at

The court in Casas was careful to distinguish between

aliens held indefinitely pursuant to § 1226(c), who were without
“an opportunity to contest the facts on which the ICE officials
based their decision,” and aliens subject to “the procedural
protections afforded in ordinary bond hearings, where aliens may
contest the necessity of their detention before an immigration
judge and have an opportunity to appeal that determination to the
BIA.”

Id. at 951-52.

The Ninth Circuit appeared to recognize

that, for a “non-criminal” alien held pursuant to § 1226(a),
there is an established administrative structure that regularly
affords a detainee a bond hearing upon submission of a motion by
the alien or counsel. See generally 8 C.F.R. § 1003.19.

However,

at such a bond hearing, unlike at a Casas hearing, the burden is
on the alien to show by clear and convincing evidence that he or
she is not dangerous.

8 C.F.R. § 1003.19(h)(3).4

4

The government also points to 8 C.F.R. § 1236.1(c) for
the proposition that aliens bear the burden of proof in
discretionary bond hearings. However, this provision applies
only to “criminal aliens” subject to the Transition Period
Custody Rules (TPCR). During the transitional two-year period of
IIRIRA’s original implementation, the provision applied to such
aliens detained under § 1226(c). The TPCR expired in October
1998, rendering this regulation without effect. See generally
Matter of Garcia Arreola, 25 I. & N. Dec. 267 (BIA 2010). In any
8

To determine who had the burden of proof at
Manzanarez’s May 14 hearing, this court must therefore decide
whether the proceeding was a Casas hearing or an “ordinary bond
hearing.”

The May 14 hearing was a Casas hearing only if either

the proceeding occurred after Manzanarez was detained for a
“prolonged” period of time or if the government purported to be
giving the alien a Casas hearing, and therefore intended to
preclude a future hearing at which it would bear the burden of
proof.

Neither condition is present here.
Casas, by its terms, applies only to cases of prolonged

detention.

Casas-Castrillon, 535 F.3d at 944 (holding that

“prolonged detention must be accompanied by appropriate
procedural safeguards”).5

The Ninth Circuit has held that, “as a

general matter, detention is prolonged when it has lasted six
months and is expected to continue more than minimally beyond six
months.”

Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir.

event, Manzanarez is not a “criminal alien” within the meaning of
this regulation because he is being detained pursuant to
§ 1226(a), not § 1226(c).
5

The notion that all detention, however short and whatever
the basis of detention, necessitates a hearing before an IJ is
squarely foreclosed by the Supreme Court’s holding in Demore. In
Demore, the petitioner had been detained for six months as a
“criminal alien” pursuant to § 1226(c). The Court held that he
could “be detained [without bond] for th[is] brief period
necessary for [his] removal proceedings.” Demore, 538 U.S. 510 at
513.
9

2011).

The hearing occurred after Manzanarez had been detained

for about one month and so was not, absent more, a Casas hearing.
It is certainly possible to hold a Casas hearing before
six months of detention have elapsed.

Indeed, the Ninth Circuit

has noted that “DHS should be encouraged to afford an alien a
hearing before an immigration judge before the 180–day threshold
has been reached if it is practical to do so and it has already
become clear that the alien is facing prolonged detention.”
Diouf, 634 F.3d at 1092.

If the government had argued that the

pre-six-month hearing was a Casas hearing (thereby possibly
barring future Casas hearings even after six months) this court
could hold the government to its Casas burden.

However, both

sides agree that the May 14 hearing was not a Casas hearing.
Because the May 14 hearing was neither after a period
of prolonged detention nor perceived to be a Casas hearing by
either the government or Manzanarez himself, this court views
that hearing as a simple bond determination hearing at which the
government did not have the burden of proving dangerousness.
Even if the government must comport with basic
principles of due process when such hearings occur, the placement
of the burden of proof on the alien does not, without more,
render such hearings constitutionally defective.

See Demore, 538

U.S. at 525 (noting that detention of short duration without
“individualized findings of likely future dangerousness” is

10

permissible under the Fifth Amendment’s Due Process Clause)
(citation omitted).
It may not be the most administratively efficient
course to hold two detention hearings, one at which the alien
bears the burden of proof, and one later at which the government
bears the burden of proof.

However, this court recognizes that

the need for a second hearing may be neither so frequent nor so
initially obvious that the government considers it beneficial to
conduct Casas hearings from the start as a matter of routine.

In

any event, the two-hearing procedure does not constitute a
constitutional or legal error.

Manzanarez’s “ordinary bond

hearing” was not constitutionally defective.

The IJ and BIA did

not err in placing the burden on Manzanarez to demonstrate that
he was not a danger to the community.

Identifying no

constitutional or legal error in the administrative bond
determinations, this court denies habeas relief.
IV.

MANZANAREZ’S CURRENT ENTITLEMENT TO A CASAS HEARING
During the hearing on his petition before this court,

Manzanarez contended that he is now entitled to a Casas hearing
because he has been detained for six months, and his detention
has therefore become “prolonged.”

The government argues that

detention only becomes "prolonged" when the alien has "completed
administrative proceedings challenging his removal, and [has]
filed a petition for review with the Ninth Circuit."

11

ECF No. 12

at 2.

The court need not decide when the six months begins to

run, although the court notes that the government identified no
authority for its proposed start date.

The court further notes

that in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), the
court said:
“Regardless of the stage of the proceedings,
the same important interest is at stake-freedom from prolonged detention. Indeed, if
anything, because [those] detained prior to
the entry of an administratively final
removal order have not been adjudicated
removable, they would seem to have a greater
liberty interest than individuals detained
pending judicial review . . . and thus a
greater entitlement to a bond hearing.”
Id. at 1139.
However, this issue is not properly before this court
because Manzanarez appears not to have even requested an
administrative Casas hearing.

This court declines to instruct

the agency to give Manzanarez relief that he has not yet
requested.

The proper course is for Manzanarez to file a motion

with the agency for a Casas hearing.

The agency’s regulations

state that “[a]fter an initial bond redetermination, an alien's
request for a subsequent bond redetermination shall be made in
writing and shall be considered only upon a showing that the
alien's circumstances have changed materially since the prior
bond redetermination.”

8 C.F.R. § 1003.19(e).

The court leaves

it to Manzanarez to decide whether to cite his prolonged
detention as a changed circumstance falling under § 1003.19(e).
12

At the oral hearing, Manzanarez expressed concern that
the IJ would be without jurisdiction to act, because Manzanarez
has already filed an appeal of his initial bond determination to
the BIA.

Manzanarez even asked this court to itself conduct a

Casas hearing.

However, the filing of an appeal with the BIA

does not divest the IJ of jurisdiction to entertain subsequent
bond redetermination requests involving the same alien.

See

Matter of Valles, 21 I. & N. Dec. 769, 771-72 (BIA 1997).
To the extent action by this court is warranted,
Manzanarez is free to file another habeas petition in this court.
Singh, 638 F.3d at 1203 (“On habeas review under § 2241,
exhaustion is a prudential rather than jurisdictional
requirement.”).

But this court will not insert itself into this

matter when Manzanarez has not even asked the agency for the
relief he seeks.

A habeas petition should not short-circuit an

agency’s clearly defined procedures.
V.

CONCLUSION
The petition for writ of habeas corpus is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 11, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Jorge Rocha Manzanarez v. Eric Holder et al; Civil Number 13-00354 SOM/BMK;
13
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS