Alexis v. Sessions et al
Filing
24
MEMORANDUM AND ORDER entered: The court dismisses the claims against Sessions, Nielsen, Homan, Contreras, and Hartnett as improper respondents. Alexis may amend his petition to add Tate as a respondent no later than November 30, 2018.The court dism isses the petition's first claim, with prejudice, for lack of subject-matter jurisdiction. Because the petition's second claim is foreclosed by Jennings, 138 S. Ct. at 846, it is also dismissed with prejudice.To the extent that the petitio n's third, fourth, sixth, and seventh claims allege violations of the Fifth Amendment's Due Process Clause, the court denies the government's motion to dismiss and requires the government to hold an individualized bond hearing to deter mine whether continued detention is necessary to prevent Alexis from fleeing or to protect the community. The government must conduct the hearing no later than January 11, 2019, or show cause why an extension is needed.The court dismisses the petition's fifth, eighth, and ninth claims, with prejudice, for failure to state a claim on which relief can be granted. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD LAWRENCE ALEXIS
Petitioner,
VS.
JEFFERSON B. SESSIONS, et al.,
Respondents.
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§
§
§
November 13, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-1923
MEMORANDUM AND ORDER
Richard Lawrence Alexis is in the custody of Immigration and Customs Enforcement, United
States Department of Homeland Security, at the Contract Detention Facility in Houston, Texas.
(Docket Entry No. 1 at ¶ 17). He seeks a writ of habeas corpus under 28 U.S.C. § 2241 ordering his
release. (Id. at ¶¶ 15, 25). Alexis alternatively requests a hearing on whether his continued
detention is justified. (Id. at ¶ 15).
The respondents, Jefferson B. Sessions, Attorney General of the United States; Kirstjen M.
Nielsen, Secretary of the Department of Homeland Security; Immigration and Customs
Enforcement; Thomas Homan, the Acting Director of Immigration and Customs Enforcement;
Patrick Contreras, the Immigration and Customs Enforcement Field Office Director in Houston;
Robert Lacy, Jr., Warden of the Houston Contract Detention Center; and Sarah Hartnett, Chief
Counsel of Immigration and Customs Enforcement in Houston, have moved to dismiss improper
defendants. They have also moved to dismiss the petition under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim
on which relief can be granted. (Docket Entry No. 21). Alexis responded, and the court heard
argument. (Docket Entry Nos. 22, 23).
Based on a review of the petition, motion, response, the record, the arguments of counsel,
and the applicable law, the court grants and denies Alexis’s petition in part. The reasons are set out
in detail below.
I.
Background
Richard Lawrence Alexis is a 38-year-old native and citizen of Trinidad and Tobago.
(Docket Entry No. 1 at ¶¶ 17, 33). He first entered the United States in 1991 as a lawful permanent
resident. (Id. at ¶ 33). Alexis alleges that his biological father severely abused him during his
childhood in Trinidad and Tobago, and that he began using drugs as a result. (Id. at ¶¶ 34–35).
In 2007, the government initiated removal proceedings against Alexis based on his two
misdemeanor convictions for marijuana possession.1 (Id. at ¶ 36). The immigration judge ordered
Alexis removed, reasoning that the second conviction was an aggravated felony under 8 U.S.C.
§ 1101. (Id.). Alexis appealed. (Id. at ¶ 37). The Board of Immigration Appeals and the Fifth
Circuit affirmed, Alexis v. Holder, 354 F. App’x 62 (5th Cir. 2009), but the Supreme Court vacated
the order and remanded the case. Alexis v. Holder, 561 U.S. 1001 (2010).
The government removed Alexis to Trinidad and Tobago after the Board of Immigration
Appeals denied his appeal. (Docket Entry No. 1 at ¶ 38). Alexis alleges that he experienced
significant trauma there, including undiagnosed mental illness, homelessness, domestic abuse, police
brutality, threats, torture, and imprisonment. (Id. at ¶¶ 42–48).
On remand, the immigration judge revoked Alexis’s removal order, and he reentered the
United States in 2011. (Id. at ¶ 41). Alexis alleges that he continued to suffer from mental illness,
and that he attempted suicide after returning to the United States. (Id. at ¶ 49). He also abused
1
The government argues that Alexis had been convicted of possessing a controlled substance on
three, not two, occasions before his removal to Trinidad. (Docket Entry No. 21 at 1).
2
drugs and in 2016 was again convicted for possessing a controlled substance, a felony under Texas
law.2 (Id. at ¶¶ 49–50). The government detained Alexis in June 2017 and initiated proceedings to
remove him from the United States. (Id. at ¶ 50).
Alexis moved to terminate the removal proceedings. (Id. at ¶ 51). After denying the motion
in September 2017, the court terminated the proceedings in January 2018, holding that the
Department of Homeland Security had failed to establish removability. (Id. at ¶ 52). Later that
month, the government renewed the removal charge against Alexis on the same basis, that he had
committed a crime involving a controlled substance, warranting deportation. (Id. at ¶ 53). Alexis
again disputed removability, arguing that the statute under which he was convicted in 2016 was not
a categorical match to the federal controlled-substance statute, and that the state criminal statute was
indivisible. (Id. at ¶ 54). The immigration judge disagreed, finding that the state statute matched
the controlled-substance list and that the statute was divisible. (Id. at ¶ 55). In May 2018, the
immigration judge found that Alexis was competent, denied his requests for relief, and ordered him
removed. (Id. at ¶ 56). Alexis appealed to the Board of Immigration Appeals in May 2018, and the
Board dismissed his appeal in October 2018. (Id. at ¶ 57; Docket Entry No. 22 at 4). Alex
petitioned the Fifth Circuit for review in November 2018. (Docket Entry No. 22 at 4).
Alexis petitioned this court for a writ of habeas corpus in June 2018, alleging that he has
been in detention since June 2017. (Docket Entry No. 1 at ¶ 58). Alexis claims that he has asked
the government to treat him for mental health illness and alleges that the failure to provide it results
from deliberate indifference to his medical needs. (Id. at ¶ 58; Docket Entry No. 22 at 6). He
contends that even though a board-certified professional counselor reported that he suffers from
2
According to the government, Alexis served his sentence from November 15, 2016, to June 26,
2017. (Docket Entry No. 21 at 2).
3
post-traumatic stress disorder and recurrent severe major depression with psychotic features, the
government has yet to provide him with medical care. (Docket Entry No. 1 at ¶¶ 65, 68).
Alexis makes the following claims for relief: (1) he is not “deportable” under 8 U.S.C.
§ 1226(c)(1)(B), (id. at ¶¶ 83–84); (2) his 16-month detention is “demonstrably unreasonable” under
Denmore v. Kim, 538 U.S. 510, 513 (2003), (id. at ¶¶ 7, 86–87); (3) his continued detention violates
his substantive and procedural due-process rights under 8 U.S.C. § 1226(c), (id. at ¶¶ 90, 93, 97);
(4) his continued detention violates the Eighth Amendment’s Excessive Bail Clause, (id. at
¶¶ 102–04; 118–20); (5) his continued detention violates his substantive and procedural due-process
rights under the Fifth Amendment, (id. at ¶¶ 107–09, 111–15); and (6) the government’s refusal to
treat his medical conditions violates the Eighth Amendment’s proscription against cruel and unusual
punishment. (Id. at ¶¶ 122–24). Alexis asks the court for declaratory and injunctive relief, a writ
of habeas corpus releasing him from detention, and an order requiring the government to hold a bond
hearing. (Id. at 30).
The government has moved to strike certain respondents, and to dismiss the petition for lack
of subject-matter jurisdiction and for failure to state a claim. Alexis responded, and the court heard
argument from counsel.3 (Docket Entry Nos. 21, 22, 23).
The issues raised by Alexis’s petition, the government’s motion, and Alexis’s response are
analyzed below.
II.
The Legal Standards
A.
Rule 12(b)(1)
3
Alexis argues that the respondents’ motion to dismiss is untimely because they answered in July
2018 and moved to dismiss in October. (Docket Entry No. 22 at 7). In September 2018, the court issued a
scheduling order for this case, directing the respondents to move to dismiss on October 26, 2018, the day the
motion was filed. (Docket Entry No. 15). The respondents timely moved to dismiss.
4
Rule 12(b)(1) governs challenges to a court’s subject-matter jurisdiction. “Under Rule
12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde
Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012) (quotation omitted). “Courts
may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Clark
v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981)).
The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. See
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When examining a factual challenge
to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of the
plaintiff’s cause of action, the district court has substantial authority to “weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Williamson, 645 F.2d at 413
(quotation omitted). “[A] motion to dismiss for lack of subject matter jurisdiction should be granted
only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that
would entitle [the] plaintiff to relief.” Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of
Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)).
B.
Rule 12(b)(6)
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which
requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED.
R. CIV. P. 8(a)(2). A complaint must contain “enough facts to state a claim to relief that is plausible
5
on its face.” Bell Atl. Corp.v. Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550, U.S. at 556).
To withstand a Rule 12(b)(6) motion, a “complaint must allege ‘more than labels and
conclusions,’” and “a formulaic recitation of the elements of a cause of action will not do.” Norris
v. Hearst Tr., 500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “[A] complaint ‘does
not need detailed factual allegations,’ but must provide the plaintiff’s grounds for entitlement to
relief—including factual allegations that when assumed to be true ‘raise a right to relief above the
speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550
U.S. at 555). “Conversely, when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum
expenditure of time and money by the parties and the court.” Id. (alteration omitted) (quoting
Twombly, 550 U.S. at 558).
III.
Analysis
A.
The Motion to Dismiss Certain Parties
6
Alexis named Sessions, Nielsen, Homan, Contreras, Hartnett, and Lacy as respondents to his
petition. (Docket Entry No. 1 at ¶¶ 18–24). The government moves to strike the claims against
Sessions, Nielsen, Homan, Contreras, and Hartnett, and to dismiss them as parties, arguing that
under Padilla, the only proper respondent in a habeas case is the petitioner’s immediate custodian.
(Docket Entry No. 21 at 10). Lacy is Alexis’s immediate custodian and, according to the
government, the only proper respondent. (Id.).
Alexis responds that the government has moved him between multiple detention facilities,
and that his immediate custodian “has changed several times and will continue to change.” (Docket
Entry No. 22 at 5). Alexis argues that “Lacy is no longer a proper [respondent] because [Alexis] has
been moved from the Houston SPC-CCA contract detention center . . . and is currently at the
Montgomery Processing Center . . . in Conroe, Texas, where Randy Tate is the current warden.”
(Id.). Contreras, Homan, and Hartnett are proper respondents, Alexis contends, because the
“decision to transfer [him] is not within the control of the [Montgomery Processing Center] warden,
but rather in the control of [Immigration and Customs Enforcement].” (Id.).
“The federal habeas statute straightforwardly provides that the proper respondent to a habeas
petition is ‘the person who has custody over [the petitioner].” Rumsfeld v. Padilla, 542 U.S. 426,
434 (2004) (quoting 28 U.S.C. § 2242). “The consistent use of the definite article in reference to
the custodian indicates that there is generally only one proper respondent to a given prisoner’s
habeas petition.” Id. “This custodian[] is ‘the person’ with the ability to produce the prisoner’s
body before the habeas court.” Id. at 435. The general “rule is that the proper respondent is the
warden of the facility where the prisoner is being held, not . . . some other remote supervisory
official.” Id.
7
Even though Alexis alleges that he has been transferred to a different facility, there is no
basis to depart from Padilla’s clear directive. The only proper respondent in this case is Randy Tate,
the warden of the Montgomery Processing Center, because he is Alexis’s immediate custodian, “‘the
person’ with the ability to produce [his] body before the habeas court.” Id. The claims against
Sessions, Nielsen, Homan, Contreras, and Hartnett are dismissed because they are “remote
supervisory official[s],” not Alexis’s custodian. Alexis may amend his petition to add Tate as a
respondent no later than November 30, 2018. Id. at 434. Because the government has transferred
Alexis between facilities, the court does not dismiss Lacy in the event that Alexis returns to the
Houston Contract Detention Facility.
B.
The Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction
The government moves to dismiss under Rule 12(b)(1) on the grounds that Alexis’s petition
challenges the merits of his removal order and that he failed to exhaust administrative remedies.
(Docket Entry No. 21 at 3–10). Alexis responds that Jennings v. Rodriguez, 138 S. Ct. 830 (2018),
provides a basis for jurisdiction over his petition and that he exhausted his administrative remedies
in 2017. (Docket Entry No. 22 at 2–5).
Federal courts lack subject-matter jurisdiction to review the merits of a removal order or the
discretionary decisions of the Attorney General. See Moreira v. Mukasey, 509 F.3d 709, 712 (5th
Cir. 2007); Andrade v. Gonzales, 459 F.3d 538, 542 (5th Cir. 2006); Gul v. Rozos, 163 F. App’x 317,
318–19 (5th Cir. 2006) (“We note first that the Real ID Act stripped the district courts of jurisdiction
over 28 U.S.C. § 2241 petitions attacking removal orders. To the extent that Gul’s petition
challenged his continued detention rather than the final order of removal, nothing in the Real ID Act
precluded the district court form adjudicating the claim.”). But federal courts have subject-matter
jurisdiction to consider an alien’s constitutional challenges to continued detention. See Jennings,
8
138 S. Ct. at 841 (8 U.S.C. §§ 1252(b)(9) and 1226(e) are not jurisdictional bars to habeas petitions
challenging confinement under § 1226(c)).
Alexis’s first claim for relief asks the court to construe the term “deportable” in 8 U.S.C.
§ 1226(c)(1)(B).” (Docket Entry No. 1 at ¶ 83). Under § 1226(c)(1)(B), the Attorney General “shall
take into custody any alien who . . . is deportable by reason of having committed” certain crimes.
8 U.S.C. § 1226(c)(1)(B) (emphasis added). Alexis claims that because he “has a strong challenge
to removability” and “substantial claims for asylum, withholding of removal, and relief under the
Convention Against Torture, he is not ‘deportable’ under the meaning of § 1226(c)(1)(B).” (Docket
Entry No. 1 at ¶ 84). The court lacks jurisdiction over this claim because it requires assessing the
merits of Alexis’s removal order. See Moreira, 509 F.3d at 712. But Alexis’s other claims present
constitutional challenges to his detention, and the court has jurisdiction over them.
As to exhaustion, § 1252, the statute governing judicial review of removal orders, requires
exhaustion if the petitioner is subject to a final order. 8 U.S.C. § 1252(d)(1) (“A court may review
a final order of removal only if . . . the alien has exhausted all administrative remedies.”) (emphasis
added). Aliens detained under § 1226(c) are subject to provisional orders. Once an order becomes
administratively final, § 1226 no longer controls. See Andrade, 459 F.3d at 543. The law is silent
as to whether aliens detained under § 1226(c) must exhaust administrative remedies before seeking
relief in federal court. See Sulayao v. Shanahan, No. 09-CV-7347 (PKC), 2009 WL 3003188, at *3
(S.D.N.Y. Sep. 15, 2009) (“[T]here is no statutory requirement for petitioner to exhaust his
administrative remedies before judicially challenging his mandatory detention.”); Sengkeo v.
Horgan, 670 F. Supp. 2d 116, 121 (D. Mass. 2009).
Although exhaustion is not statutorily required, the Fifth Circuit has established that “[a]
person seeking habeas relief must first exhaust available administrative remedies.” Hinojosa v.
9
Horn, 896 F.3d 305, 314 (5th Cir. 2018). “The exhaustion . . . doctrine requires not that only
administrative remedies selected by the complainant be first exhausted, but instead that all those
prescribed administrative remedies which might provide appropriate relief be pursued prior to
seeking relief in the federal courts.” Id. (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.
1985)). But “[e]xceptions to the exhaustion requirement are appropriate where the available
administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where
the attempt to exhaust such remedies would itself be a patently futile course of action.” Id. (quoting
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curium)).
Alexis concedes that he has not exhausted all available administrative remedies. (Docket
Entry No. 1 at ¶ 32). He has not petitioned the immigration court for a bond hearing. Nor has he
requested a hearing under In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), to challenge the basis of
his removal. But Alexis argues that “any further attempts at exhaustion would be futile.” (Docket
Entry No. 1 at ¶ 32). The government responds that those failures divest this court of subject-matter
jurisdiction. (Docket Entry No. 21 at 7).
The Board of Immigration Appeals “has clearly and repeatedly upheld the denial of a bond
hearing under the view that § 1226(c) mandates detention without bond.” Sengkeo, 670 F. Supp.
2d at 122. And, here, the immigration judge sustained the government’s ground of removability
under § 1226(c). (Docket Entry No. 1 at ¶ 32; Docket Entry No. 21 at 2). Alexis appealed, and in
October 2018, the Board dismissed Alexis’s appeal. (Docket Entry No. 22 at 4). It is clear that any
attempt by Alexis to receive a bond hearing or to overturn the basis of his detention would be futile.
See Quintero v. Holder, No. SA-14-CA-474-XR (PMA), 2014 WL 4063966, at *2 (W.D. Tex. Aug.
18, 2014) (“To the extent Respondent is arguing that the case should be dismissed for failure to
exhaust administrative remedies, the Court notes that Petitioner does not contest the Immigration
10
Judge’s determination that he is subject to mandatory detention and therefore dismissal for failure
to request a Joseph hearing is inappropriate.”); Garcia v. Lacy, No. H-12-3333, 2013 WL 3805730,
at *3 (S.D. Tex. July 19, 2013) (same).
Futility excuses Alexis’s failure to exhaust his
administrative remedies.
The court grants in part and denies in part the government’s motion to dismiss under Rule
12(b)(1). Alexis’s first claim, asking for a construction of “deportable,” is dismissed, with prejudice,
because amendment would be futile. To the extent that Alexis’s other claims challenge the
constitutionality of the his detention, the court has jurisdiction to hear the petition, Jennings, 138
S. Ct. at 841, and the motion is denied.
C.
The Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
1.
Alexis’s Due Process Claims
Alexis’s third, fourth, sixth, and seventh claims allege substantive and procedural due
process violations of § 1226 and the Fifth Amendment. (Docket Entry No. 1 at ¶¶ 85–100,
105–115). Alexis contends that his detention has “already extended well beyond the ‘brief period
of time’ typically needed to complete [removal] proceedings,” and that the government has
prolonged his confinement by failing to prove removability in 2017. (Id. at ¶¶ 4, 50–52) (quoting
Denmore, 538 U.S. at 513). Alexis claims that the failure to provide a “‘sufficiently strong special
justification’ to outweigh [his] deprivation of liberty” makes his continued detention unlawful, and
the court must order his release. (Id. at ¶ 5) (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)).
The government responds that Alexis’s detention complies with § 1226(c), which mandates
confinement for an alien who commits certain offenses. (Docket Entry No. 21 at 7–8). According
to the government, Jennings establishes that confinement under § 1226(c) meets due process
11
because detainees are released when their removal proceedings end. (Id. at 9). The government
contends that although Alexis has been detained for over a year, that is reasonable and
constitutional. (Id. at 11). Alexis replied that at “least six[] months of [his] detention is attributable
to [the respondents’] failure to meet its burden of proof in its 2017 case against [him],” making it
unreasonable. (Docket Entry No. 22 at 4 n.1).
Under § 1226(c)(1)(B), the “Attorney General shall take into custody any alien who . . . 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.” Section 1227(a)(2)(B)(i) reads: “Any alien who at any time after
admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law . . .
relating to a controlled substance[,] is deportable.” Under § 1226(c)(2), the “Attorney General may
release an alien described in paragraph (1) only if the Attorney General decides . . . that release of
the alien from custody is necessary to provide protection to a witness.”
The parties agree that § 1226(c)(1)(B) governs Alexis’s detention. The government
readmitted Alexis to the United States in 2011; in 2016, he was convicted of felony possession of
a controlled substance; and Immigration and Customs Enforcement detained him in June 2017.
(Docket Entry no. 1 at ¶¶ 41, 50).
Both parties rely on Denmore. (See Docket Entry No. 1 at ¶ 82; Docket Entry No. 21 at 7).
In Denmore, 538 U.S. at 513, a lawful permanent resident alien, Hyung Joon Kim, had been
convicted of burglary and was subject to mandatory detention under § 1226(c). The Supreme Court
upheld his six-month detention, reasoning that “[d]etention during removal proceedings is a
constitutionally permissible part of that process.” Id. at 531. Relying on statistics showing that the
average detention under § 1226(c) was 47 days and the median was 30 days, the majority held that
Congress “may require that persons such as [the petitioner] be detained for the brief period necessary
12
for their removal proceedings.” Id. at 513, 529. The Court observed that Kim’s six-month detention
was unusual but reasonable because the delay was attributable to Kim, not the government. Id. at
531. Each court of appeals that has examined § 1226(c) after Denmore has held that the Fifth
Amendment restricts the permissible length of detention under the statute. See, e.g., Reid v.
Donelan, 819 F.3d 486, 496 (1st Cir. 2016); Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015);
Rodriguez v. Robbins, 715, F.3d 1127, 1138 (9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d
221, 232–33 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 269–70 (6th Cir. 2003); cf. Zadvydas, 533
U.S. at 693 (“[T]he Due Process Clause applies to all persons within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”). These decisions
impose a reasonableness limitation on detention under § 1226(c).
In Jennings, the Supreme Court reversed the Ninth Circuit’s ruling that aliens detained under
§ 1226(c) were entitled to bond hearings every six months. Jennings, 138 S. Ct. at 852. The Court
held that the statute’s unambiguous language mandates detention during the pendency of removal
proceedings and precluded an implicit bond-hearing requirement.4 Id. at 846–48. The Court found
that § 1226(c) “expressly prohibits release . . . except for narrow, witness-protection purposes.” Id.
at 846. But while the Court found that the statute restricted early release, it did not authorize
indefinite detention. Instead, “detention under § 1226(c) has ‘a definite termination point’: the
conclusion of removal proceedings.” Id. (quoting Denmore, 538 U.S. at 529). The Court declined
to decide whether and when prolonged detention under § 1226(c) violates the Constitution. Id. at
851. The Ninth Circuit is now considering that question on remand. Rodriguez v. Jennings, 887
F.3d 954 (9th Cir. 2018).
4
Alexis’s second claim asks the court to construe § 1226(c) “as authorizing such detention only for
the ‘brief period of time necessary’ to complete removal proceedings.” (Docket Entry No. 1 at ¶ 86). That
argument is foreclosed by Jennings, and the court dismisses the claim, with prejudice, because amendment
would be futile.
13
Neither the Fifth Circuit nor other courts of appeals have reviewed § 1226(c) since Jennings.
Only one district court in this circuit has evaluated a similar petition. See Silvera v. Joyce, No. EP17-CV-363-DCG, 2018 WL 1249913, at *3 (W.D. Tex. Mar. 9, 2018) (Jennings foreclosed the
petitioner’s request for release after a 15-month detention). But Denmore and Jennings make clear
that a petitioner may bring as-applied challenges to § 1226(c), and that at least six months of
detention is lawful. Jennings, 138 S. Ct. at 846; Denmore, 538 U.S at 530. That detention, however,
cannot be indefinite and must end when removal proceedings are concluded. Id. A court must
consider the length of detention to date, the likely duration of future detention, the conditions of
detention, whether the detainee’s civil confinement exceeds the incarceration for his conviction, and
whether the detainee or the government prolonged the detention. See Denmore, 538 U.S. at 530–31
(“Respondent was detained for somewhat longer than the average . . . but respondent himself had
requested a continuance of his removal hearing.”); see also Diop, 819 F.3d at 500–01; Muse v.
Sessions, No. 18-CV-54 (PJS/LIB), 2018 WL 4466052, at *3 (D. Minn. Sept. 18, 2018).
Zadvydas examined § 1231(a)(6), not § 1226(c), but its reasoning is important. The Supreme
Court found that postremoval detention under § 1231(a)(6) for longer than six months is
presumptively unreasonable and construed the statute “to contain an implicit ‘reasonable time’
limitation.” Zadvydas, 533 U.S. at 682. The Court implied the limitation to avoid “the serious
constitutional concerns” that would result if § 1231(a)(6) permitted indefinite detention. Id.; see
Muse, 2018 WL 446052, at *3 (explaining Zadvydas in the context of § 1226(c)). Denmore and
Jennings distinguished Zadvydas, finding that while detention under § 1231(a)(6) might be
permanent, detention under § 1226(c) must end when removal proceedings end. Denmore, 538 U.S.
at 527–30; Jennings, 138 S. Ct. at 843–44. But detention beyond the “brief period” contemplated
in Denmore “begins to resemble the indefinite detention addressed in Zadvydas,” and “the
14
constitutional issues that concerned the [Zadvydas court] become more salient.” Muse, 2018 WL
4466052, at *3; see Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *9 (S.D.N.Y.
May 23, 2018).
District courts reviewing petitioners’ as-applied challenges to § 1226(c) since Jennings have
conducted fact-specific analyses. The length of detention and which party is held responsible for
the delay in removal largely account for whether the court granted or denied habeas relief. See, e.g.,
Dryden v. Green, 321 F. Supp. 3d 496, 502 (D.N.J. 2018) (the alien’s year-long detention did not
violate the Fifth Amendment because the alien prolonged his confinement); Carlos A. v. Green, No.
18-741 (SDW), 2018 WL 3492150, at *5 (D.N.J. July 20, 2018) (same); Gonzalez v. Bonnar, et al.,
No. 18-CV-5321-JSC, 2018 WL 4849684, at *5 (N.D. Cal. Oct. 4, 2018) (the alien’s 10-month
detention complied with due process because his hearing before an immigration judge was
scheduled, and the alien had “not suggested that the government or the [agency adjudicator] ha[d]
acted in bad faith, delayed, or misled [him]”); Muse, 2018 WL 4466052, at *4–*6 (granting relief
because the alien had been confined for 14 months, future confinement could have lasted an
additional year, and the government detained him in a county jail, not a civil confinement center);
Thompson v. Edwards, 18-1006 (ES), 2018 WL 4442225, at *3–*4 (D.N.J. Sep. 17, 2018) (granting
relief because the alien had been detained for 26 months and there was no evidence that he had
engaged in dilatory tactics); Sajou, 2018 WL 2357266, at *11–*12 (granting relief because the alien
had been confined for 8 months, prolonged by the government’s failure to process and send
documents to his counsel); Vega v. Doll, No. 3:17-1440, 2018 WL 3756755, at *3–*5 (M.D. Pa.
Aug. 8, 2018) (granting relief because the alien had been confined for 21 months and had not
delayed his removal proceedings).
15
In this case, the government has detained Alexis for over 16 months, exceeding the “brief
period” Denmore contemplated and resembling the indefinite detention at issue in Zadvydas. This
weighs in favor of relief. See Muse, 2018 WL 446052, at *3.
The probable length of Alexis’s future detention also favors relief. The immigration judge
ordered Alexis removed in May 2018. The Board of Immigration Appeals dismissed his petition
in October 2018, and Alexis petitioned the Fifth Circuit for review in November 2018. It is unclear
when the Fifth Circuit will rule, and Alexis will likely appeal an adverse decision to the Supreme
Court. Alexis’s future confinement could exceed another year. Id.
The parties disagree on whether the government or Alexis has unreasonably delayed the
removal proceedings. According to Alexis, the Department of Homeland Security “unnecessarily
and unjustifiably” delayed his case by failing to sufficiently document its charge of removal.
(Docket Entry No. 1 at ¶ 8). The government claims that Alexis “has submitted no evidence that
the government has improperly or unreasonably delayed the regular course of proceedings, or that
the government has detained him for any purpose other than the resolution of his removal
proceedings.” (Docket Entry No. 21 at 11). While there is no evidence that the government acted
in bad faith, its failure to establish removability delayed the proceedings for approximately 7
months. And there is no evidence that Alexis has caused delay that would weigh against relief. See
Vega, 2018 WL 3756755, at *4.
According to the respondents, Alexis was incarcerated from November 15, 2016, to June 26,
2017, for the felony conviction that mandated his current detention. (Docket Entry No. 21 at 2).
His civil confinement is double the length of the prison sentence he received for the conviction.
While that fact alone favors relief, the likelihood that Alexis will be detained for a considerable
period in the future exacerbates the concern raised by this factor.
16
Based on the circumstances, Alexis’s continued detention violates the Fifth Amendment.
Only the conditions of Alexis’s detention weigh against relief. The record shows that Alexis has
been confined in civil detention centers, not criminal facilities. But it is the length of Alexis’s
confinement that is the “most important[] factor that must be considered.” Sajous, 2018 WL
2357266, at *10. Alexis has been detained for 16 months. He may well be confined for another
year. His detention exceeds the length of his criminal sentence. These facts, considered in light of
Denmore, Jennings, and recent district court rulings, support finding that Alexis should be afforded
a bond hearing. Denmore, 538 U.S. at 532 (Kennedy, J., concurring) (“[S]ince 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.”).
Because Alexis’s continued detention is unconstitutional, the court denies the government’s
motion to dismiss his third, fourth, sixth, and seventh claims. The government must conduct a bond
hearing no later than January 11, 2019, or show cause why an extension is needed.
2.
Alexis’s Excessive Bail Claims
Alexis’s fifth and eighth claims allege violations of the Eighth Amendment’s Excessive Bail
Clause. (Docket Entry Nos. 1 at ¶¶ 102–03, 117–20). Alexis argues that the court should use
constitutional avoidance to find that § 1226(c) authorizes no-bond detention only if the government
establishes “a compelling interest other than the prevention of flight” and “where the length of
detention is limited.” (Docket Entry No. 1 at ¶ 103). Alexis contends that because the government
has detained him for over a year, and because his detention does not serve a compelling interest, his
continued detention violates the Eighth Amendment. (Id. at ¶¶ 104, 117, 119–20). Alexis alleges
that the court should order his prompt release because he is neither a flight risk nor a danger to the
17
community. (Id. at ¶ 104). The government did not address the Excessive Bail Clause claims, and
Alexis did not address them in his response to the government’s motion to dismiss.
The Excessive Bail Clause of the Eighth Amendment provides that “[e]xcessive bail shall
not be required.” U.S. CONST., amend. VIII. But the Eighth Amendment “says nothing about
whether bail shall be available at all.” United States v. Salerno, 481 U.S. 739, 752 (1987); see also
Carlson v. Landon, 342 U.S. 524, 545 (1952) (The Excessive Bail Clause “has never been thought
to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those
cases where it is proper to grant bail”). “[W]hen Congress has mandated detention on the basis of
a compelling interest other than prevention of flight, . . . the Eighth Amendment does not require
release on bail.” Salerno, 418 U.S. at 754–55.
Alexis’s argument is unavailing. Detention under § 1226(c) “gives immigration officials
time to determine an alien’s status without running the risk of the alien’s either absconding or
engaging in criminal activity before a final decision can be made.” Jennings, 138 S. Ct. at 836
(emphasis added). Alexis has committed a number of offenses, including the crime that mandated
his detention in June 2017, and his confinement serves one of the two purposes of § 1226(c):
community safety. See Reyes v. Underdown, 73 F. Supp. 2d 653, 658 (W.D. La. 1999) (“By
mandating the detention of certain criminal aliens, Congress presumes that such aliens pose a danger
to the community.”). While the court grants Alexis relief under the Fifth Amendment, the Excessive
Bail Clause does not require bail in this context. The court dismisses Alexis’s fifth and eighth
claims. See Marogi v. Jenifer, 126 F. Supp. 2d 1056, 1062 (E.D. Mich. 2000) (rejecting an
Excessive Bail challenge by an alien detained under § 1226(c)); Avramenkov v. I.N.S., 99 F. Supp.
2d 210, 218 (D. Conn. 2000) (same); accord Carlson, 342 U.S. at 545–46 (upholding the mandatory
detention of aliens without bail even though they had not been found to be flight risks or
18
individually dangerous); Denmore, 538 U.S. at 525–26 (affirming Carlson and upholding six months
of mandatory detention under § 1226(c)).
3.
Alexis’s Medical Treatment Claim
The ninth claim alleges that the government has denied Alexis medical treatment in violation
of the Eighth Amendment. (Docket Entry No. 1 at ¶¶ 122–24). The government argues that Alexis
has conceded that he received medical treatment and “only disagrees with the extent of the medical
treatment he received.” (Docket Entry No. 21 at 15). According to the government, Alexis’s
disagreement with his medical care is insufficient to state an Eighth Amendment claim. (Id.). The
government also contends that allegations of negligence or medical malpractice also fail to state a
claim. (Id.). Alexis responds that he has provided the government evidence of his mental illness,
and that despite receiving that information, the government repeatedly refused to treat him. (Docket
Entry No. 1 at ¶ 67). He alleges that the refusals show “deliberate indifference,” warranting relief
under the Eighth Amendment. (Docket Entry No. 1 at ¶ 124; Docket Entry No. 22 at 6).
Because detention under § 1226(c) does “not directly result from conviction for a crime[,]
the Eighth Amendment’s prohibition against cruel and unusual punishment is inapplicable.”
Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000). The Fifth Circuit “consider[s] a person
detained for deportation to be the equivalent of a pretrial detainee.” Id. “[A] pretrial detainee’s
constitutional claims are considered under the due process clause [of the Fifth Amendment] instead
of the Eighth Amendment.” Id. The standards for both are the same: subjective deliberate
indifference. Hare v. City of Corinth, 74 F.3d 633, 636 (5th Cir. 1996) (en banc).
Under the “deliberate indifference” standard, a public official is liable only if he “knows of
and disregards an excessive risk to inmate health or safety; the official must both be aware of facts
from which inference could be drawn that a substantial risk of serious harm exists, and he must also
19
draw the inference.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). Neither disagreement with a provider’s treatment, negligence,
nor malpractice rise to an Eighth Amendment violation. Gibbs v. Grimmette, 254 F.3d 545, 549 (5th
Cir. 2001); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
The government correctly argues that the record shows only that Alexis disagrees with the
medical treatment and care he received, not that his medical needs were deliberately ignored.
(Docket Entry No. 21 at 15). Medical staff “conducted daily visits and ‘weekly mental health
seg[regation] rounds’” to evaluate Alexis. (Docket Entry No. 1 at ¶ 71). The notes from those visits
state that he “did not require mental health treatment, and that [his] mood was ‘happy.’” (Id.)
Alexis concedes that the detention center medical staff has examined him on numerous
occasions. “[T]he detention center medical provider concluded that Alexis suffers only from
‘cocaine abuse with unspecified cocaine-induced disorder’ and ‘imprisonment and other
incarceration’ and requires neither mental health treatment no[r] follow up care.” (Id. at ¶ 69).
Alexis alleges that he asked for medication in June 2018, but was told “that he did not need it and
that it would ‘hurt his case.’” (Id. at ¶ 77).
Alexis’s complaint shows his disagreement with the providers’ decisions. It does not even
allege negligence. Alexis has failed to state a claim for an Eighth Amendment violation. See Gibbs,
254 F.3d at 549. The claim is dismissed, with prejudice, because amendment would be futile.
IV.
Conclusion
The court dismisses the claims against Sessions, Nielsen, Homan, Contreras, and Hartnett
as improper respondents. Alexis may amend his petition to add Tate as a respondent no later than
November 30, 2018.
20
The court dismisses the petition’s first claim, with prejudice, for lack of subject-matter
jurisdiction. Because the petition’s second claim is foreclosed by Jennings, 138 S. Ct. at 846, it is
also dismissed with prejudice.
To the extent that the petition’s third, fourth, sixth, and seventh claims allege violations of
the Fifth Amendment’s Due Process Clause, the court denies the government’s motion to dismiss
and requires the government to hold an individualized bond hearing to determine whether continued
detention is necessary to prevent Alexis from fleeing or to protect the community. The government
must conduct the hearing no later than January 11, 2019, or show cause why an extension is
needed.
The court dismisses the petition’s fifth, eighth, and ninth claims, with prejudice, for failure
to state a claim on which relief can be granted.
SIGNED on November 13, 2018, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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