Opinion
CIVIL NO. 1:18-CV-1592
10-04-2018
FRANKLIN LOPEZ and EDWIN LOPEZ, Petitioners, v. CLAIR DOLL, et al., Respondents.
(Judge Rambo)
( ) REPORT AND RECOMMENDATION
I. Introduction
In many respects, the law defining the due process rights of aliens who are detained pending completion of removal proceedings is in a state of flux. Several factors combine to create a shifting legal terrain in this field. First, these claims are considered against a complex statutory and regulatory framework which draws distinctions between various classes of aliens based upon whether they have lawfully entered the country or are arriving aliens who present themselves at our nation's borders. The prior criminal record of the alien, if any, can also affect any statutory entitlement to bond consideration under the Immigration and Naturalization Act. Furthermore, the status of the agency administrative proceedings, which includes whether the alien's case is in pre-removal proceedings or whether the alien is subject to a final order of removal, is a material fact which must be considered when evaluating federal habeas corpus petitions filed by immigration detainees.
Given the many variables that courts consider in deciding these cases, it is hardly surprising that, for litigants and the courts alike, the resolution of these petitions often calls upon us to traverse an uncertain legal landscape, mindful of the fact that our decisions profoundly affect the lives and liberties of others. This case aptly illustrates the shifting legal sands which define litigation in this field. The petitioners, Franklin and Edwin Lopez, are two Honduran nationals who are the subject of reinstated removal orders but are resisting removal by asserting claims under the Convention Against Torture, a treaty which would preclude removal of a person to his or her homeland if the alien faces a credible threat of torture or death upon return. Counsel have ably argued a host of legal questions concerning whether the petitioners' case should be considered a pre-removal petition or a petition by aliens who are subject to final orders of removal, and the constitutional due process implications of either characterization. While these arguments have been advanced with great skill and vigor, within the past week intervening legal events have overtaken these arguments. Specifically, in Guerrero-Sanchez v. Warden York Cty. Prison, No. 16-4134, 2018 WL 4608970, at *8 (3d Cir. Sept. 26, 2018), the United States Court of Appeals for the Third Circuit held that detention for aliens like the petitioners, who are subject to reinstated removal orders:
is governed by § 1231(a) [the statute which applies to persons facing final orders of removal].A reinstated removal order is administratively final for the purposes of removal because it provides that an alien "shall be removed" from the United States, and that determination is "not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). An alien with a reinstated order of removal therefore cannot have a decision "pending" before an Immigration Judge on "whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a) (emphasis added). As a result, such aliens cannot fulfill the necessary predicate to implicate § 1226(a) [the statute describing bond proceedings in pre-removal cases], and they cannot rely on that provision to obtain a bond hearing.Having weighed the administrative and legal burdens, which both the government aliens like the petitioners face when attempting to avoid removal pursuant to final orders of removal based upon claims brought under the Convention Against torture, the appellate court then: "adopt[ed] a six-month rule here—that is, an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." Guerrero-Sanchez v. Warden York Cty. Prison, No. 16-4134, 2018 WL 4608970, at *13 (3d Cir. Sept. 26, 2018).
Id. at *8.
Applying this week-old analytical paradigm to the instant case, where the petitioners have been held for 10 months without a bond hearing, for the reasons set forth below, it is recommended that the court granted the petitioners limited habeas corpus relief in the form of an order directing an Immigration Judge to provide the petitioners with individualized bond hearings.
II. Factual Background
The pertinent facts can be simply stated: The petitioners, Edwin and Franklin Lopez, are citizens and nationals of Honduras. (Doc. 1.) Both men had been removed from the United States in prior proceedings that were conducted more than a decade ago, but following their removal, both men had re-entered the United States sometime around 2007. (Id.) For the past decade, Edwin and Franklin Lopez had resided, apparently without incident, in this country.
In January of 2018, the petitioners were encountered by immigrations officials and were determined to be undocumented aliens who had previously been removed from the United States. They were taken into immigration custody on January 2, 2018, and have remained continuously in immigration custody since that time. (Id.)
Immigration and Customs Enforcement is seeking the removal of the petitioners based upon the prior, reinstated removal orders entered against them. (Id.) For their part, Franklin and Edwin Lopez are attempting to resist removal from the United States to Honduras by arguing that they are entitled to protections under the Convention Against Torture (CAT). Specifically, both petitioners have alleged that they fear death at the hands of a criminal gang MS-13, if they are returned to Honduras. (Id.) On the basis of these assertions of fear for their safety, the petitioners seek withholding of removal to Honduras under the Convention Against Torture. Administrative proceedings relating to these withholding of removal and CAT claims are pending before the Immigration Court. In the meanwhile, both Franklin and Edwin Lopez remain in immigration custody without any bond consideration. (Id.)
After some nine months of detention had passed, on August 10, 2018, the petitioners filed this petition for writ of habeas corpus with the United States District Court for the Middle District of Pennsylvania. (Doc. 1.) In this petition for writ of habeas corpus, the petitioners have sought two forms of relief: (1) that ICE/DHS afford the petitioners an individualized bond hearing before an Immigration Judge forthwith; and (2) that this court order ICE/DHS to postpone the petitioners' withholding/CAT hearing until after bond has been granted. (Doc. 1, p.21.) While we initially, and prematurely, entered an order directing partial relief to the petitioners, (Doc. 2), upon evaluation of the government's motion to reconsider, (Docs 3-5), that order was vacated and the case was assigned to the undersigned for further proceedings. (Doc. 10.) We then entered an order setting a briefing schedule in this case, (Doc. 11), as well as a supplemental briefing order, directing the Respondents to show cause why Guerrero-Sanchez v. Warden York Cty. Prison, No. 16-4134, 2018 WL 4608970, at *13 (3d Cir. Sept. 26, 2018) does not entitle the petitioners to habeas corpus relief. (Docs. 11 and 17.) With commendable candor, the Government has responded to this order by stating that:
Without conceding that Guerrero-Sanchez was correctly decided, Respondents recognize that the decision is presently binding authority on this Court and the parties. Thus, should the Court order a bond hearing before the Immigration Judge, Respondents respectfully request that the court order the hearing to be held within 21 days to account for the large docket and administrative limitations of the immigration court.(Doc. 18, p. 4.)
Accordingly, this matter is now fully briefed, (Docs. 1, 4, 13, 16, 18), and is, therefore, ripe for resolution. For the reasons set forth below, it is recommended that the district court grant the petition and order an individualized bond hearing for the petitioners to be conducted before an Immigration Judge.
III. Discussion
In a legal landscape where the particular factual context often defines the nature of substantive constitutional rights, this case presents a very specific factual scenario. The petitioners are aliens who are now the subject of reinstated removal orders, but who are attempting to avoid removal to their homeland based upon Convention Against Torture (CAT) claims. In this specific factual context, there are two questions we must determine: First, which statutory immigration bond statute applies in this setting—pre-final removal order bond pursuant to 8 U.S.C. § 1226 or final removal order bond pursuant to 8 U.S.C. § 1231? Once we resolve this threshold question concerning the proper statutory framework governing immigration bond, we must then address a second, closely-related inquiry; namely, what are the procedural due process implications of this statutory choice in terms of entitlement to bond consideration?
We do not write on a blank slate when addressing these issues. Quite the contrary, within the past week the United States Court of Appeals for the Third Circuit has prescribed the path we should follow. In Guerrero-Sanchez v. Warden York Cty. Prison, No. 16-4134, 2018 WL 4608970 (3d Cir. Sept. 26, 2018), the Court of Appeals faced the precise factual scenario which now confronts this court—a petition for writ of habeas corpus filed by a detained alien who was the subject of a reinstated removal order that the petitioner was resisting based upon a Conventional Against Torture (CAT) claim. Id., at *1.
In terms that are equally applicable here, the Court of Appeals resolved the initial question of statutory interpretation in favor of treating the petitioner like an alien who was the subject of a final order of removal, holding that the petitioner's detention:
is governed by § 1231(a) [the statute which applies to persons facing final orders of removal].A reinstated removal order is administratively final for the purposes of removal because it provides that an alien "shall be removed" from the United States, and that determination is "not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). An alien with a reinstated order of removal therefore cannot have a decision "pending" before an Immigration Judge on "whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a)
(emphasis added). As a result, such aliens cannot fulfill the necessary predicate to implicate § 1226(a) [the statute describing bond proceedings in pre-removal cases], and they cannot rely on that provision to obtain a bond hearing.Id. at *8.
Having made this threshold determination that the post-final order of removal detention statute, 8 U.S.C. § 1231, applied in this particular factual setting, the appellate court went on to observe that aliens who are resisting a reinstated final order of removal on fear of torture grounds are in a very different situation than most aliens who are facing final orders of removal. For many aliens facing final orders of removal, that order represents the last step in an administrative process, and the extent of any further detention is both fixed and finite. All that remains is the task of repatriation of the detainee to the alien's homeland. In this more routine setting, the Court of Appeals noted that the United States Supreme Court has prescribed a presumptively reasonable duration of detention of 6 months, beyond which an entitlement of an individualized bond hearing may arise.
Those aliens who are seeking to resist removal from the United States to their homelands by arguing for the first time that they are entitled to protections under CAT, while also detained pursuant to 8 U.S.C. § 1231, are in a very different factual footing, however. Litigation of these CAT claims can involve a protracted agency administrative process with rulings by Immigration Judges and appeals to the Board of Immigration Appeals. (BIA). Such claims are also subject to judicial review by the Court of Appeals. While acknowledging these factual distinctions, after examining the administrative and legal burdens which both the government aliens like the petitioners face when attempting to avoid removal pursuant to final orders of removal based upon claims brought under CAT, the appellate court concluded that, as a matter of due process, aliens facing reinstated removal orders who were contesting removal based upon CAT claims still retained due process entitlement to an individualized bond consideration similar to that enjoyed by other aliens facing final removal orders. Accordingly, the court: "adopt[ed] a six-month rule here—that is, an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." Guerrero-Sanchez, 2018 WL 4608970, at *13.
In our view this case is indistinguishable from Guerrero-Sanchez. Therefore, the court's rationale in Guerrero-Sanchez, which we are obliged to follow, creates a presumption in favor of an individualized bond hearing once six months of detention have elapsed. Here, the petitioners' detention commenced in January of 2018, some 10 months ago. Therefore, they are well beyond that 6 month period prescribed by Guerrero-Sanchez and should now receive individualized bond consideration.
Finding that an individualized bond hearing is appropriate in this case, it is recommended that this Court order that an Immigration Judge in the first instance conduct this individualized bond hearing. Indeed, the appellate court suggested that, in many instances, this initial bond determination can, and should, be made by the Immigration Judge, applying the constitutional benchmarks outlined by the courts. Chavez-Alvarez v. Warden York Cnty. Prison, 783 F.3d 469, 478 n.12 (3d Cir. 2015). This guidance, in turn, is consistent with other case law in this field, where federal courts have frequently referred these bond questions to Immigration Judges in the first instance. See, e.g., Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008); Reid v. Donelan, 991 F. Supp. 2d 275 (D. Mass. 2014); Chen v. Aitken, 917 F. Supp. 2d 1013 (N.D. Cal. 2013); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009); Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009); Wilks v. U.S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654 (M.D. Pa. Nov. 3, 2008). Moreover, this course of action is entirely consistent with settled case law directing such hearings before immigration judges for petitioners whose pre-removal detention falls within the ambit of the ruling in Chavez-Alvarez. See e.g., Vale v. Sabol, No. 1:15-CV-2249, 2015 WL 8602751, at *1 (M.D. Pa. Dec. 14, 2015); Singh v. Sabol, No. 1:14-CV-1927, 2015 WL 3519075, at *1 (M.D. Pa. June 4, 2015), appeal dismissed (Sept. 9, 2015).
Guerrero-Sanchez also prescribes for us the allocation of the burden of proof and persuasion in this setting. According to the appellate court in this particular factual context, an alien "is entitled to a bond hearing before an Immigration Judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community" Guerrero-Sanchez, 2018 WL 4608970, at *12. According to the Court: "The Government must meet its burden in such bond hearings by clear and convincing evidence." Id., at *12 n. 12.
Further, we note that while we recommend that such a hearing be conducted in this case, nothing in this recommendation should be construed as suggesting what the outcome of that hearing should be. We leave that assessment to the sound discretion of the Immigration Judge.
While we have thus addressed the principal issue raised by the petitioners, the question of whether Edwin and Franklin Lopez are now entitled to an individualized bond hearing, we briefly consider the petitioners' request that their CAT claim and withholding of removal claim litigation before the Immigration Judge be stayed pending a bond hearing. At the outset, we note that events may have overtaken this prayer for relief, at least in part, since the petitioners report that they have received a merits hearing in this matter. In any event, on this score we agree with Respondents that the issuance of collateral orders governing other procedural or substantive aspects of the agency administrative process is largely foreclosed by statute, specifically the REAL ID Act, 8 U.S.C. § 1252(b)(9), which provides that "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order," 8 U.S.C. § 1252(b)(9) (emphasis added), which may occur exclusively through a petition for review in the courts of appeals. § 1252(a)(5). Section 1252(b)(9) expressly precludes district court review "by habeas corpus . . . or by any other provision of law (statutory or nonstatutory)" of an order of removal or "questions of law or fact, including interpretation and application of constitutional provisions" arising from any action taken or proceeding brought to remove an alien from the United States. § 1252(b)(9). Thus, the Supreme Court has construed § 1252(b)(9) as channeling judicial review of all "decisions and actions leading up to or consequent upon final orders of deportation," including "non-final order[s]," into one proceeding exclusively before a court of appeals. Reno v. Am.-Arab Anti-Discrimination Com., 525 U.S. 471, 483, 485 (1999) (emphasis added). Under the REAL ID Act, we now simply lack jurisdiction to entertain the merits of petitioners' underlying CAT claims through this habeas corpus petition. Kamara v. Attorney Gen. of U.S., 420 F.3d 202 (3d Cir. 2005). Therefore, it follows that we should not interfere in the timing or procedural aspects of the litigation of these claims by the Immigration Judge. Instead, under the REAL ID Act, the petitioners' pathway for litigation of these issues lies with the Immigration Judge, the BIA, and ultimately with the Court of Appeals.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the district court GRANT the petition and order an individualized bond hearing for the petitioners within 21 days.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 4th day of October, 2018
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge