Opinion
CIV-22-908-R
04-26-2023
BUBAKARR JALLOH, Petitioner, v. MERRICK GARLAND, et al., Respondents.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal detainee appearing pro se,has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1). The matter has been referred by United States District Judge David L. Russell to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 6). The undersigned previously recommended that the court deny the Petition. (Doc. 12). Judge Russell remanded the case to the undersigned to consider whether Petitioner's detention has been unconstitutionally prolonged. (Doc. 14). For the reasons set forth below, the undersigned recommends that the Petition (Doc. 1) be GRANTED IN PART and DENIED IN PART.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Factual and Procedural Background
Petitioner is an immigration detainee who was being held at the Kay County Detention Center in Newkirk, Oklahoma.(Doc. 1, at 1; Doc. 11, at 1). Petitioner is a native and citizen of Sierra Leone, who was admitted into the United States on November 29, 2003, as a child of an asylee. (Doc. 11, at 3; id. at Ex. 2, at 3). On December 6, 2012, Petitioner was convicted of conspiracy to commit felony theft. (Id. at Ex. 3, at 1). On August 25, 2015, Petitioner was convicted of theft by deception. (Id. at Ex. 2, at 3; id. at Ex. 4, at 1). Petitioner was brought into immigration court as a result of these convictions, and he was granted status as a lawful permanent resident of the United States on December 30, 2016. (Id. at Ex. 2, at 3; id. at Ex. 5).
Petitioner has now been transferred to the Chase County Detention Center in Cottonwood Falls, Kansas. See http://inmates.bluhorse.com/Default.aspx?ID=CCDC2. “Jurisdiction over § 2241 petitions ‘lies in only one district: the district of confinement.'” Al-Pine v. Richerson, 763 Fed. App'x 717, 720 (10th Cir. 2019) (quoting Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004)). There is an exception to this rule: When the government moves a § 2241 habeas petitioner after he has properly filed a petition in the correct district, that district court retains jurisdiction. Id. at 441. In other words, once a habeas petitioner properly files a petition, jurisdiction attaches and the petitioner's later transfer “does not defeat that initial jurisdiction.” Pinson v. Berkebile, 604 Fed. App'x 649, 653 (10th Cir. 2015); see also Griffin v. Ebbert, 751 F.3d 288, 290 (5th Cir. 2014) (“Jurisdiction attached on that initial filing for habeas corpus relief, and it was not destroyed by the transfer of petitioner and accompanying custodial change.”). Thus, although Petitioner is now confined outside the Western District of Oklahoma, this Court retains jurisdiction.
On November 17, 2018, Petitioner was convicted of aggravated battery. (Id. at Ex. 6, at 1). On August 29, 2019, Petitioner was convicted of possession of cocaine. (Id. at Ex. 7, at 1). As a result of these convictions, Petitioner was taken into immigration custody on October 26, 2021, and placed into immigration proceedings. (See id. at Ex. 8, at 1-2; Doc. 20, at Ex. 1, at 2).
On November 1, 2021, at his initial immigration court hearing, Petitioner stated he had an attorney, but that person was not present at the hearing. (Doc. 20, at Ex. 1, at 2). The immigration court re-set the case to December 6, 2021, in part to allow Petitioner to get an attorney. (Id.) “On December 6, 2021, [Petitioner], through his attorney, stated he would be seeking relief and identified what relief that would be, but he did not have a complete application to file at that time. The case was re-set to January 10, 2022, for [Petitioner] to complete his application and to file it with the court.” (Id. at 3). On January 10, 2022, [Petitioner] was unable to attend his immigration court hearing due to a positive COVID test, and the hearing was re-set to February 7, 2022. (Id.) “On February 7, 2022, [Petitioner] submitted his application, but he asked for more time to submit supporting documents. The case was re-set to February 28, 2022.” (Id.) Petitioner ultimately admitted to his criminal convictions but sought asylum. (See Doc. 11, at Ex. 8, at 1-2). On February 28, 2022, the immigration judge was out sick, and the case was re-set to March 21, 2022. (Doc. 20, at Ex. 1, at 3). “On March 21, 2022, the [immigration judge] verified that the application was complete enough to set it for a hearing on the merits,” which was held on May 23, 2022. (Id.)
On May 26, 2022, the immigration judge denied Petitioner's request for relief and ordered him removed to Sierra Leone. (Doc. 11, at Ex. 8, at 16). Petitioner timely appealed the decision to the Board of Immigration Appeals (“BIA”) on June 16, 2022. (Doc. 1, at 2). On November 4, 2022, Petitioner was granted an extension of the original due date for briefing his appeal, and both parties were given until November 25, 2022, to submit their briefs and “[a]ddress any issues with the transcript in [their] brief[s].” (Doc. 11, at Ex. 9, at 1). On January 6, 2023, the BIA remanded the case to the El Paso Immigration Court as the removal hearing transcript from May 23, 2022, was incomplete because the testimony of Petitioner and his witnesses was missing. (Doc. 20, at Ex. 1, at 3-4). On January 30, 2023, the Immigration Court determined that a new hearing was necessary to consider Petitioner's application and to complete the transcript. (Id. at 4). That hearing was held March 27, 2023, and the immigration judge requested additional briefing, which was due April 10, 2023. (Id.) On April 20, 2023, Petitioner was again ordered removed. See Executive Office for Immigration Review, Automated Case Information website. Petitioner has until May 22, 2023, to file an appeal to the BIA. (Id.)
https://acis.eoir.justice.gov/en, A-Number 095-569-923.
II. The Instant Petition
On October 12, 2022, Petitioner filed the instant Petition in the United States District Court for the Western District of Texas. (Doc. 1, at 9). The case was subsequently transferred to this court on October 17, 2022. (Docs. 2-4). Petitioner raised four grounds for relief:
(1) “[Petitioner's] detention for over six months is unlawful and contravenes 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas;”
(2) “[Petitioner's] indefinite detention violates [his] right to Substantive Due Process under the Fifth Amendment of the United States Constitution;”
(3) “Detention without a timely and meaningful opportunity to demonstrate that [Petitioner] should not be detained violates [his] right to procedural Due Process Under the Fifth Amendment of the United States Constitution;”
(4) “The government's categorial denial of bail to certain noncitizens violates the right to bail, encompassed by the Eighth Amendment.”(Doc. 1, at 7-8). Respondent filed a Response (Doc. 11). The undersigned issued a Report and Recommendation that the Court deny the Petition on all grounds. (Doc. 12). Judge Russell adopted the Report and Recommendation in part, and denied Grounds 1 and 4 of the Petition. (Doc. 14, at 2). Judge Russell declined to adopt subsection C of the Report and Recommendation, which addressed Petitioner's due process claims in Grounds 2 and 3. (Id. at 2-5). Judge Russell remanded the case to the undersigned to consider “whether Petitioner is entitled to an individualized bond hearing because his detention has been unconstitutionally prolonged” (id. at 5), with specific instructions to apply a six-factor test. (Id. at 4 (citing Viruel Arias v. Choate, No. 22-CV-02238, 2022 WL 4467245, at *2 (D. Colo. Sept. 26, 2022)). The undersigned ordered supplemental briefing (Doc. 15), which was provided by Respondent. (Doc. 20).
III. Legal Standard
The Court has jurisdiction under 28 U.S.C. § 2241 to consider [Petitioner's] constitutional claim. See Demore v. Kim, 538 U.S. at 510, 517 (2003).
Detention of non-citizens within the United States is generally governed by 8 U.S.C. § 1226 and 8 U.S.C. § 1231. The Attorney General may arrest and detain a non-citizen pending adjudication of their removal proceedings under § 1226. Detention is mandatory for certain non-citizens, including those who are “deportable by reason of having committed any offense” listed in another immigration statute. 8 U.S.C. § 1226(c)(1)(B); 8 U.S.C. § 1227(a)(2). See also Demore, 538 U.S. at 528 (concluding mandatory detention under § 1226 is constitutional).
Mandatory detention is not indefinite detention. See id. at 527-28 (“[T]he statutory provision at issue governs detention of deportable criminal aliens pending their removal proceedings.” (original emphasis)). A noncitizen's unreasonably long or unjustified detention under § 1226(c) may be unconstitutional. See id. at 532-33 (Kennedy, J., concurring). To determine whether a non-citizen's detention has been unconstitutionally prolonged, courts consider the following factors:
(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.
Singh v. Choate, No. 19-CV-00909-KLM, 2019 WL 3943960, at *5 (D. Colo. Aug. 21, 2019) (citing Jamal A. v. Whitaker, 358 F.Supp.3d 853, 85859 (D. Minn. 2019)). Where they have been detained under § 1226(c) for an unconstitutional length of time, a non-citizen is entitled to an individualized bond hearing. See, e.g., Villaescusa-Rios v. Choate, No. 20-CV-03187-CMA, 2021 WL 269766, at *3 (D. Colo. Jan. 27, 2021).Viruel Arias, 2022 WL 4467245, at *1-2.
The undersigned notes that the Respondent objects to Judge Russell's application of the six-factor test for assessing whether detention pursuant to § 1226(c) has been unconstitutionally prolonged. Respondent maintains that Demore v. King, 538 U.S. 510 (2003), upheld the constitutionality of mandatory detention during the removal proceedings for certain criminal non-citizens, even when the detention was longer than the average detention period. (Doc. 20, at 14-15). Respondent further argues that more recently Jennings v. Rodriguez, 138 S.Ct. 830 (2018), “held that the plain text of § 1226(c) mandates detention until the completion of proceedings,” and “it cannot be construed to contain an unstated temporal limitation.” (Id. at 16, 17). Respondent acknowledges that, even after Jennings, the District of Colorado and other courts outside the Tenth Circuit have applied the factoring test to assess the constitutionality of continued detention under § 1226(c). (Id. at 17). However, Respondent points out that this approach has not been adopted by the Tenth Circuit Court of Appeals, and argues that “this Court should join district courts that have held, post-Jennings, that § 1226(c) detention where the case is proceeding efficiently through the immigration courts and the government has not caused unreasonable delay, ‘has not yet become so prolonged that it amounts to an arbitrary application of the statute.'” (Id. at 19 (citing cases)). Nevertheless, Judge Russell has specifically ordered the undersigned to apply the six-factor test utilized by the District of Colorado, see supra, and we proceed with that analysis.
IV. The Balance of the Six Factors Weighs In Favor of Finding that Petitioner's Detention Has Been Unconstitutionally Prolonged.
Respondent argues, in the alternative, that the factors do not weigh in favor of relief for Petitioner. As set forth below, the undersigned disagrees.
(1) The Total Length of Detention to Date
Petitioner and Respondent agree that Petitioner has been detained since October 26, 2021 - 547 days, or exactly 18 months - and that Petitioner's detention continues at this time. (Doc. 1, at 5; Doc. 20, at 20). Respondent does not directly address the length of Petitioner's detention, but instead discusses how Petitioner requested extensions and appealed his removal, and how the case timeline “exhibit[s] an administrative system at work.” (Doc. 20, at 20). Respondent's arguments seem more appropriate in considering factors four and five. Respondent cites no cases suggesting that a detention of 18 months is reasonable. See, e.g., Jamal A., 358 F.Supp.3d at 859 (19-month detention strongly favors granting a bond hearing); Salazar v. Rodriguez, No. CV 17-1099 (JMV), 2017 WL 3718380, at *6 (D.N.J. Aug. 29, 2017) (finding detention for just over one year unreasonable); Lett v. Decker, 346 F.Supp.3d 379, 387 (S.D.N.Y. 2018) (finding detention unreasonable where alien was detained for nearly ten months); Perez v. Decker, No. 18-CV-5279, 2018 WL 3991497, at *6 (S.D.N.Y. Aug. 20, 2018) (finding a detention over nine months likely unreasonable); Abshir H.A. v. Barr, No. CV 19-1033 (PAM/TNL), 2019 WL 3719414 (D. Minn. Aug. 7, 2019) (finding that the first factor weighed in petitioner's favor because detention exceeded 18 months, which is much longer than the one-to-five-month periods of detention considered by the Supreme Court in Demore). Thus, this first factor weighs heavily in Petitioner's favor.
(2) The Likely Duration of Future Detention
“Second, the Court considers how long the detention will likely continue in the absence of judicial relief.” Villaescusa-Rios, 2021 WL 269766 at *3. “Courts examine the ‘anticipated duration of all removal proceedings' - including administrative and judicial appeals - when estimating how long detention will last.” Jamal A., 358 F.Supp.3d at 859 (citing Muse v. Sessions, 409 F.Supp.3d 707, 716-17 (D. Minn. 2018)). Respondent contends that “removal proceedings are nearing their final chapter.” (Doc. 20, at 21). However, it may well be that this final chapter will take many more months.
A review of Petitioner's case shows that Petitioner was originally ordered removed on May 26, 2022, and Petitioner timely appealed the decision to the BIA, with briefing originally due on November 4, 2022. (Doc. 1, at 2; Doc. 11, at Ex. 9, at 1). After one 21-day extension of time for briefing, the BIA remanded on January 6, 2023. (Doc. 20, at Ex. 1, at 3).
Petitioner was ordered removed again on April 20, 2023, and any appeal is due by May 22, 2023. See Executive Office for Immigration Review, Automated Case Information website (see footnote 4, supra). Petitioner is essentially in the same position as when he was first ordered removed on May 26, 2022. Petitioner has the opportunity to appeal to the BIA, and based on the history of this case, there is nothing to suggest that the BIA's decision will be rendered any quicker than the previous decision. Moreover, both Petitioner and the Department of Homeland Security have the right to appeal a decision of the BIA to the appropriate federal circuit court of appeals. See 8 U.S.C. § 1252. “Where either party may appeal an immigration court's decision[,] this factor weighs in favor of the petitioner.” Viruel Arias, 2022 WL 4467245, at *2. Thus, Petitioner's detention may well continue for at least seven months or much longer. Thus, this factor also weighs in Petitioner's favor.
(3) The Conditions of Detention
Courts consider whether “the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.” Sajous v. Decker, No. 18-CIV-2447 (AJN), 2018 WL 2357266, at *11 (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.” Muse, 409 F.Supp.3d at 717. Respondent concedes that Petitioner has been detained at “the Kay County Detention Center under DHS authority and that the jail is a criminal correctional facility.” (Doc. 20, at 21). Petitioner is now housed at the Chase County Detention Center, a jail in Kansas. (See footnote 3). Thus, this factor weighs in Petitioner's favor.
(4) Delays in the Removal Proceedings Caused by the Detainee
The fourth and fifth factors consider the delays caused by the parties. Respondents contend that these two factors balance each other to be neutral. (Doc. 20, at 22). In considering delays in the removal proceedings caused by the detainee, “[c]ourts should be ‘sensitive to the possibility that dilatory tactics by the removable alien may serve not only to put off the final day of deportation, but also to compel a determination that the alien must be released because of the length of his incarceration.'” Jamal A., 358 F.Supp.3d at 860 (quoting Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003)). Respondent asserts that Petitioner has caused delays: (1) by seeking an extension to allow Petitioner to obtain counsel; (2) by seeking an extension for additional time to complete his application for relief once counsel was located; (3) by being unable to attend a hearing due to having Covid-19; (4) by seeking additional time to submit supporting documents; (5) by electing to appeal; and (6) by requesting additional time to file a brief. (Doc. 20, at 21). This Court will not hold Petitioner's efforts to seek relief through the available legal channels against him; in fact, Petitioner's appeal to the BIA resulted in a remand. See German Santos v. Warden Pike County Correctional Facility, 965 F.3d 203, 212 (3rd Cir. 2020) (“We will not hold [petitioner's] appeals and applications for discretionary relief against him.”) (citing Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 476-77 (3rd Cir. 2005)). Respondents do not allege that Petitioner has engaged in any bad faith dilatory tactics. Thus, the fourth factor is neutral.
(5) Delays in the Removal Proceedings Caused by the Government
Respondents admit that there have been government delays in Petitioner's proceedings. The first delay occurred on February 28, 2022, when the immigration judge was ill, and the case required a continuance. (Doc. 20, at 11). The second delay occurred when the hearing transcript of Petitioner's first application hearing was incomplete. (Id. at Ex. 1, at 3-4). While not entirely clear, it appears that the delay caused by the lack of a complete transcript is attributable to the Respondents, even though there may be no ill intent behind the delay. See German Santos, 965 F.3d at 212 (“Absent carelessness or bad faith, we will not scrutinize the merits of immigration proceedings and blame whichever party has the weaker hand.”). The fifth factor is neutral.
(6) The Likelihood that the Removal Proceedings Will Result in a Final Order of Removal
The final factor considers the likelihood that removal proceedings will result in a final order of removal. Petitioner has conceded his criminal convictions and has been denied relief at every stage of the removal proceedings thus far. While Petitioner contends in his Petition that “there is no significant likelihood of [his] removal in the reasonably foreseeable future” (Doc. 1, at 7), Petitioner does not address why he believes it is unlikely that he will be removed. Accordingly, this factor appears to weigh in favor of Respondents.
Conclusion
In weighing these six factors, the undersigned finds that Petitioner's continued, lengthy detention without an individualized bond hearing has become unreasonable in violation of Petitioner's due process rights. De Zarate v. Choate, No. 23-CV-00571-PAB, 2023 WL 2574370, at *5 (D. Colo. Mar. 20, 2023) (finding that when “[f]actors one, two, and three weigh in favor of [Petitioner]; factors four and five are neutral; and factor six weighs against [Petitioner],” the factors favor Petitioner and a finding that Petitioner's Due Process rights had been violated).
V. Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition for habeas relief (Doc. 1) be GRANTED IN PART and DENIED IN PART.
It should be GRANTED to the extent Petitioner moves this Court to order an individualized bond hearing. It should be DENIED to the extent Petitioner seeks all other relief, including relief from removal and immediate release from detention. The Court should order Respondents to take Petitioner 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 Petitioner is a flight risk or a danger to the community. See Singh, 2019 WL 3943960, at *7.
The parties are advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by May 5, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.