Opinion
Case No. C15-1778-MJP-BAT
02-16-2016
VICTOR MERCADO GONZALEZ, Petitioner, v. NATHALIE R. ASHER, et al., Respondents.
REPORT AND RECOMMENDATON
INTRODUCTION AND RELEVANT BACKGROUND
Victor Mercado Gonzalez ("Mr. Mercado"), a native and citizen of Mexico, has been detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest Detention Center in Tacoma, Washington, since August 13, 2015, under a reinstated order of removal. See Dkt. 6-2 at 2. An asylum officer found Mr. Mercado had a reasonable fear of return to Mexico, and he applied for withholding of removal. Id. at 2-3. A merits hearing for the withholding-only proceedings is scheduled for March 4, 2016. Id. at 3. During his detention, Mr. Mercado has not received an individualized bond hearing before an Immigration Judge ("IJ"). See id.
Mr. Mercado was originally ordered removed on May 5, 1992, and has been removed from the United States to Mexico three times. Dkt. 6-2 at 1-2.
Proceeding through counsel, Mr. Mercado filed the instant 28 U.S.C. § 2241 habeas petition, seeking immediate release from immigration detention or a bond hearing. Dkt. 1. Respondents have moved to dismiss, arguing Mr. Mercado's detention is statutorily authorized and he is not entitled to a bond hearing. Dkt. 6. Mr. Mercado has opposed the motion, Dkt. 11, and respondents have filed a reply, Dkt. 12.
Having considered the parties' submissions and the governing law, the Court recommends that both respondents' motion to dismiss and Mr. Mercado's habeas petition be GRANTED in part and DENIED in part. Mr. Mercado is not entitled to release, but he should be provided an individualized bond hearing before an IJ where the government bears the burden of establishing by clear and convincing evidence that he presents a flight risk or a danger to the community. Respondents should be ordered to provide Mr. Mercado with such a bond hearing within 14 days of the Order on this Report and Recommendation.
DISCUSSION
A. Statutory framework
1. Reinstatement and withholding-only proceedings
If an alien who is removed pursuant to a removal order subsequently reenters the United States illegally—like Mr. Mercado—the Department of Homeland Security ("DHS") may reinstate the original removal order. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir. 2007) (en banc); 8 C.F.R. § 241.8. When DHS reinstates a removal order, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry." 8 U.S.C. § 1231(a)(5).
To reinstate a removal order, DHS must comply with the procedures set forth in 8 C.F.R. § 241.8(a) and (b). Oritz-Alfaro v. Holder, 649 F.3d 955, 956 (9th Cir. 2012). These procedures include obtaining the prior order related to the alien, confirming that the alien is the same alien who was previously removed, and confirming that the alien unlawfully reentered the United States. 8 C.F.R. § 241.8(a). An immigration officer must then give the alien written notice of the determination that the alien is subject to removal and provide him with an opportunity to make a statement contesting the determination. 8 C.F.R. § 241.8(b). If these requirements are met, 8 C.F.R. § 241.8(c) provides that the alien "shall be removed" under the prior removal order.
Although the relevant statutory sections refer to the Attorney General, the Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116 Stat. 2135 (2002), transferred most immigration law enforcement functions from the Department of Justice ("DOJ") to DHS, while the DOJ's Executive Office for Immigration Review retained its role in administering immigration courts and the Board of Immigration Appeals. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003). --------
An alien ordered removed pursuant to a reinstated removal order, however, may not be removed "to a country if [DHS] decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(a)(5). To reflect this prohibition, the regulation governing reinstatement of removal orders "creates an exception by which an alien who asserts 'a fear of returning to the country designated' in his reinstated removal order is 'immediately' referred to an asylum officer who must determine if the alien has a reasonable fear of persecution or torture in accordance with 8 C.F.R. § 208.31." Oritz-Alfaro v. Holder, 649 F.3d 955, 956 (9th Cir. 2012) (quoting 8 C.F.R. § 241.8(e)). If the asylum officer finds that the alien has not established a reasonable fear of persecution or torture, and an IJ affirms this determination, the matter is returned to DHS for execution of the reinstated order of removal without the opportunity to appeal to the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 208.31(g). On the other hand, if the asylum officer makes a positive reasonable fear determination, as in Mr. Mercado's case, the matter is referred to an IJ "for consideration of the request for withholding of removal only." 8 C.F.R. § 208.31(e). When an IJ grants withholding of removal, the alien may not be removed to the country designated in the removal order but may be removed to an alternate country. See 8 U.S.C. § 1231(b)(2)(E); 8 C.F.R. § 1208.16(f); Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004). An IJ's decision to grant or deny withholding of removal may be appealed to the BIA. 8 C.F.R. § 208.31(g)(2)(ii).
While withholding-only proceedings are pending before an IJ or the BIA, DHS cannot execute a reinstated removal order. See Ortiz-Alfaro, 694 F.3d at 957; 8 U.S.C. § 1231(b)(3).
2. Immigration detention
There are two primary statutes that govern immigration detention, 8 U.S.C. § 1226(a) and 8 U.S.C. § 1231(a). Section 1226(a) provides for discretionary detention "pending a decision on whether the alien is to be removed from the United States," and authorizes DHS to release aliens on bond. 8 U.S.C. § 1226(a). Section 1231(a) governs "detention, release, and removal of aliens ordered removed." 8 U.S.C. § 1231(a). Pursuant to § 1231(a), DHS is required to detain an alien during the "removal period." 8 U.S.C. § 1231(a)(2). The removal period is the 90-day period that begins on the latest of the following: (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; or (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). Following the expiration of the removal period, DHS has the discretionary authority to detain certain aliens or to release them under an order of supervision. 8 U.S.C. § 1231(a)(6). The statutory basis for an alien's detention shifts from § 1226(a) to § 1231(a) once the removal period has been triggered.
B. Mr. Mercado is entitled to a bond hearing
Whether an alien is detained pursuant to § 1226 or § 1231 "can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention." Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). The parties vigorously dispute whether Mr. Mercado's detention is governed by § 1226(a) or § 1231(a). See Dkts. 1, 6, 7, 8. Mr. Mercado argues that § 1226(a) applies because his application for withholding of removal has not been adjudicated and thus he is not subject to a final order of removal. Respondents counter that § 1231 governs because Mr. Mercado's reinstated removal order was final at the time it was reinstated. The Ninth Circuit has not yet determined which statutory provision applies when an alien is subject to a reinstated removal order but has a pending application for withholding of removal, and the district courts that have weighed in are divided. Indeed, there is a split of authority in the Western District of Washington. Compare Mendoza v. Asher, No. C14-811-JCC, 2014 WL 8397145 (W.D. Wash. Sept. 16, 2014) (§ 1226(a) governs), with Giron-Castro v. Asher, No. C14-867-JLR, 2014 WL 8397147 (W.D. Wash. Oct. 2, 2014) (§ 1231 governs).
In this case, however, the Court need not determine the statutory basis for Mr. Mercado's detention because he is entitled to a bond hearing under either § 1226(a) or § 1231(a). Mr. Mercado has been detained by ICE for more than six months and his detention is likely to continue until his withholding-only proceedings are concluded, which may involve an appeal to the BIA. As such, his detention is "prolonged." See Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011) ("Diouf II") ("As a general matter, detention is prolonged when it has lasted six months and is expected to continue more than minimally beyond six months.").
The Ninth Circuit has addressed the due process requirements for prolonged detentions in the context of both § 1226(a) and § 1231(a)(6). In Casas-Castrillon v. Department of Homeland Security, the court held that aliens detained under § 1226(a) for a prolonged period of time are entitled to a bond hearing and release on bond unless the government proves that they are a flight risk or a danger to the community. 535 F.3d 942, 951 (9th Cir. 2008); see also Rodriguez v. Robbins, 804 F.3d 1060, 1084 (9th Cir. 2015). "Because the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be 'constitutionally doubtful,'" the Ninth Circuit concluded "that § 1226(a) must be construed as requiring [DHS] to provide the alien with such a hearing." Casas-Castrillon, 535 F.3d at 951 (citation omitted, emphasis in original).
In Diouf II, the court extended these requirements to aliens detained under § 1231(a)(6), holding "that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community." 634 F.3d at 1082. Specifically, the court held that the government must provide a bond hearing before an IJ to aliens who are denied release in their six-month DHS custody reviews and whose release or removal is not imminent. Id. at 1091-92 ("When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial.").
In reaching its holding, the Ninth Circuit rejected the government's argument that the "important interest" at stake—freedom from prolonged detention—was less for aliens detained while seeking collateral judicial review of administratively final orders of removal as compared to those seeking direct review. Id. at 1087. The Ninth Circuit also emphasized that while the government's interest in "ensuring that aliens are available for removal if their legal challenges do not succeed" may be "marginally greater" with respect to aliens detained under § 1231(a)(6) than those detained under § 1226(a), this interest was more appropriately considered by an IJ at an individualized bond hearing, rather than by "categorically denying to § 1231(a)(6) detainees the right to a bond hearing that § 1226(a) detainees already enjoy." Id. at 1087-88.
Under either Casas-Castrillon or Diouf II, Mr. Mercado is entitled to a bond hearing because he has been detained for more than six months, and his removal or release is not imminent. Respondents nevertheless argue the Court should not "extend" Diouf II to Mr. Mercado because there are three major distinctions between Diouf and Mr. Mercado. As discussed below, respondents' arguments are not persuasive.
First, respondents argue this case is distinguishable from Diouf II because Diouf was ordered removed after overstaying his student visa and could collaterally challenge the removal order through an application to reopen the removal proceedings, whereas Mr. Mercado's prior order of removal has been reinstated and he cannot challenge the underlying order. The Ninth Circuit, however, has made clear that "[r]egardless of the stage of the proceedings, the same important interest is at stake—freedom from prolonged detention." Diouf II, 634 F.3d at 1087.
Respondents next assert that Mr. Mercado's case is distinguishable from Diouf II because Diouf had never been previously removed from the United States, while Mr. Mercado has been removed before. According to respondents:
The government's interest in detaining aliens previously removed and who have illegally reentered the United States presents qualitatively different concerns than those addressed in Diouf II. See Diouf II, 634 F.3d at 1088 ("It is far from certain that § 1231(a)(6) detainees such as Diouf will be removed."). In the absence of careful consideration of the government's interest in the continued detention of previously removed aliens who have illegally reentered the United States, a sweeping extension of Diouf II's requirement of an individualized bond hearing for aliens being held in custody pursuant to 8 U.S.C. § 1231(a)(6) for more than 180 days after reinstatement of their prior removal order is unwarranted.Dkt. 6 at 16. This argument is not well taken. The fact that it was uncertain whether Diouf would be removed was only one of four reasons the Ninth Circuit gave for finding that the government's interest in detaining § 1231(a)(6) detainees was not substantial enough to justify denying a bond hearing. The court also found that the government has an interest in ensuring that all aliens are available for removal, detention is permitted if it is found that the alien poses a flight risk, and the petitions for review may take years to resolve. Diouf II, 634 F.3d at 1088. These remaining reasons apply with full force to Mr. Mercado, and provide ample justification for treating § 1231(a)(6) detainees subject to a reinstated order of removal the same way other § 1231(a)(6) detainees are treated.
Finally, respondents contend that unlike Dioufs removal order, Mr. Mercado's removal order is not being judicially reviewed. Yet while Mr. Mercado's removal order itself is not being reviewed, he is entitled to seek Ninth Circuit review of the BIA's final determination regarding his withholding of removal application. Thus the Ninth Circuit's central concern in Diouf II—prolonged detention while petitions for review are resolved—is equally applicable here.
Assuming Mr. Mercado is detained under § 1231(a)(6), the Court need not "extend" Diouf II to find that it governs Mr. Mercado's case. The Ninth Circuit limited its holding to aliens detained under § 1231(a)(6)—not to "certain aliens detained under § 1231(a)(6)," as respondents suggest. See Dkt. 6 at 14. Although there are some differences between Mr. Mercado and Diouf, none of those differences undermine the Ninth Circuit's ultimate concern that "prolonged detention under § 1231(a)(6), without adequate procedural protections, would raise 'serious constitutional concerns.'" Diouf II, 634 F.3d at 1086 (quoting Casas-Castrillon, 535 F.3d at 950). Mr. Mercado's current prolonged detention without the opportunity for a hearing before an IJ raises such constitutional concerns. Accordingly, he is entitled to a bond hearing at which the government must establish that he is a flight risk or a danger to the community.
C. Mr. Mercado is not entitled to an order of release
In Zadvydas v. Davis, the Supreme Court held that § 1231(a)(6) implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit "indefinite" detention. 533 U.S. 678, 701 (2001). Under Zadvydas, "[a]n alien is entitled to habeas relief after a presumptively reasonable six-month period of detention under § 1231(a)(6) only upon demonstration that the detention is 'indefinite'—i.e., that there is 'good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.'" Diouf v. Mukasey, 542 F.3d 1222, 1233 (9th Cir. 2008) ("Diouf I") (quoting Zadvydas, 533 U.S. at 701). To establish that there is no significant likelihood of removal in the reasonably foreseeable future, an alien must "show that he would be unremovable even if the government defeated his petition for review." Id. (citing Prieto-Romero, 534 F.3d at 1063). Detention becomes indefinite if, for example, the country designated in the removal order refuses to accept the alien, or if removal is barred by the laws of this country. Id. "That the detention does not have a certain end date does not change the analysis." Id. (citing Prieto-Romero, 534 F.3d at 1063, and Casas-Castrillon, 535 F.3d at 948-49 (concluding that an alien's detention was not unauthorized by statute on the basis of the length of his nearly seven-year detention because nothing would prevent his removal if he were ultimately unsuccessful in his then-pending petition for review)).
In this case, there is no evidence that if Mr. Mercado's application for withholding of removal is denied, Mexico will not accept him. Indeed, Mexico previously has issued travel documents to effectuate Mr. Mercado's removal on three previous occasions. Consequently, Mr. Mercado fails to demonstrate that his detention is indefinite under Zadvydas, and thus he is not entitled to an order of release.
CONCLUSION AND RIGHT TO OBJECT
For the foregoing reasons, the Court recommends that both respondents' motion to dismiss, Dkt. 6, and Mr. Mercado's habeas petition, Dkt. 1, be GRANTED in part and DENIED in part. Mr. Mercado is not entitled to an order of release, but he should be afforded a bond hearing pursuant to Casas-Castrillon and Diouf II. Respondents should be ordered to provide Mr. Mercado with such a bond hearing within 14 days of the Order on this Report and Recommendation.
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case. Objections, however, may be filed and served upon all parties no later than March 1, 2016. The Clerk should note the matter for March 4, 2016, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed 10 pages. The failure to timely object may affect the right to appeal.
DATED this 16th day of February, 2016.
/s/_________
BRIAN A. TSUCHIDA
United States Magistrate Judge