Opinion
CIVIL ACTION NO. 5:20-CV-34
2021-03-29
Adrian PETGRAVE, Petitioner, v. Javier ALEMAN, Respondent.
Adrian Petgrave, Pro Se. Annalisa L. Cravens, Ariel Nicole Wiley, United States Attorney's Office, Houston, TX, for Respondent.
Adrian Petgrave, Pro Se.
Annalisa L. Cravens, Ariel Nicole Wiley, United States Attorney's Office, Houston, TX, for Respondent.
MEMORANDUM & ORDER
Diana Saldaña, United States District Judge
The Department of Homeland Security (DHS) detained Petitioner Adrian Petgrave ("Petitioner"), a Jamaican native who claimed asylum after unlawfully crossing the Rio Grande River as an arriving alien over nineteen months ago. Under the Immigration and Nationality Act ("INA"), arriving aliens seeking asylum are not entitled to bond hearings or are typically released from custody. But four months before Immigration and Customs Enforcement (ICE) processed Petitioner for detention, another district court entered a nationwide injunction requiring the Government to provide aliens like Petitioner a bond hearing before an immigration judge. See Padilla v. U.S. Immigr. & Customs Enf't , 387 F.Supp.3d 1219, 1232 (W.D. Wash. 2019), aff'd in relevant part , 953 F.3d 1134, 1141 (9th Cir. 2020), vacated ––– U.S. ––––, 141 S.Ct. 1041, 208 L.Ed.2d 513 (2021). Sixteen months and five Court orders for supplemental briefing later, Petitioner received a bond hearing as part of the Court's enforcement of the national Padilla injunction. At that bond hearing, the Immigration Judge denied Petitioner bond. Twelve days later, the Supreme Court vacated the Ninth Circuit's order and lifted the national injunction with instructions to consider the Court's 2020 decision in Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S.Ct. 1959, 207 L.Ed.2d 427 (2020). Petitioner now complains that his bond hearing before the Immigration Judge was deficient and asks the Court to order his immediate release or hold a bond hearing itself. (See, e.g. , Dkt. 74 at 6.) In addition, Petitioner argues that the COVID-19 pandemic makes his continued confinement in immigration detention unconstitutional.
For the purposes of this Order, the "Immigration Judge" refers to the United States immigration judge that has been adjudicating Petitioner's case according to the record. (See, e.g. , Dkt. 25, Attach. 9; Dkt. 66, Attach. 1.)
There are ten pending motions in this matter: Petitioner's Motion to Enforce the December 21, 2020 Court Order (Dkt. 74); Petitioner's Motion to Reconsider Decision for Habeas Court to Conduct Bond Hearing (Dkt. 68); the Government's two Motions to Dismiss (Dkts. 24, 41); Petitioner's four Emergency Motions for a Temporary Restraining Order and Preliminary Injunction (Dkts. 27, 33, 38, 76); and Petitioner's two Motions for Appointment of Counsel (Dkts. 28, 34).
This case primarily concerns whether the Fifth Amendment's Due Process Clause entitles Petitioner, who is mandatorily detained under the INA, to immediate release or, in the alternative, a bond hearing in federal court. After carefully reviewing the applicable statutory structure, Thuraissigiam , binding Supreme Court precedent, and other relevant caselaw, the Court holds that Petitioner's detention, even without a bond hearing, comports with due process. Moreover, the Court concludes that Petitioner's conditions of confinement claim is not cognizable in habeas.
Factual & Procedural Background
A. Factual History
Petitioner is a forty-three-year-old Jamaican native who was born and raised in Negril, Jamaica. (Dkt. 1 at 20.) Petitioner attended some college in the United States under a valid student visa in 2004, and his wife and two children—all of whom reside in the United States—are U.S. citizens. (Id. ; Dkt. 25, Attach. 1 at 5.) However, Petitioner did not complete his college studies. On April 24, 2006, Petitioner was convicted of felony burglary and theft after stealing three projectors from a classroom. (Dkt. 25, Attach. 2 at 3; Id. , Attach. 8 at 5–7; Id. , Attach. 9 at 7.) Petitioner's student visa expired in 2009. (Id. , Attach. 3 at 2.) Though he was placed in removal proceedings, immigration authorities allowed him to voluntarily depart the country in 2011. (Id. , Attach. 2 at 3–4; Id. , Attach. 4 at 1–2.)
Though the parties label their sub-filings as exhibits, CM/ECF labels such filings as "attachments." The Court uses the term "Attach." to comport with CM/ECF. In addition, docket page numbers cited in this Order refer to the page numbers automatically generated by CM/ECF.
B. Apprehension at the Border & Initial Processing
Petitioner, who identifies as bisexual, fled Jamaica in late 2017 and embarked on a long journey to the United States after being the victim of homophobic attacks. (Dkt. 1 at 20–21.) Petitioner eventually made it to Mexico and crossed the Rio Grande River into the United States in June of 2019. (Id. at 20–22.) Soon after, a Border Patrol Agent apprehended him at approximately 5:10 a.m. near Brownsville, Texas—a town adjacent to Matamoros, Mexico. (Dkt. 25, Attach. 5 at 4.)
Petitioner recounts that approximately six years ago, two men wielding machetes attacked him in his hometown. (Dkt. 1 at 20.) During the attack, Petitioner alleges that his assailants stated that "a gay should die." (Id. ) Petitioner further alleges that he lost consciousness in the struggle and awoke with a concussion, bruises, and cuts. (Id. ) The assault would not be his last. Later, while patronizing a tire shop, two men allegedly attacked him with a sledgehammer, threatening to split his head open and kill him because they "didn't want any faggots in Negril." (Id. at 21.)
At some point, Petitioner admitted to the agent that he swam across the Rio Grande and lacked any valid immigration documents allowing him to legally be or remain in the United States. (Id. ) Because he crossed into the country at "a place not designated as a port of entry" and lacked valid entry documents, DHS determined that Petitioner was an "inadmissible" noncitizen under the INA. (Id. at 5.) As a result, DHS concluded that Petitioner was "subject to removal" and processed him for expedited removal under § 1225(b)(1) of the INA. (See id. ) That section empowers immigration officers to expeditiously remove inadmissible noncitizens "without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i). However, while inadmissible noncitizens are generally not entitled to heightened administrative review due to their imminent removal, those who express a fear of persecution or torture receive administrative review of their claims—in the form of a credible fear interview with an asylum officer—before they can be removed. 8 U.S.C. § 1225(b)(1)(A)(ii) ; 8 C.F.R. § 235.3(b)(4).
Congress constructed the expedited removal scheme in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, 110 Stat. 3009, to "weed[ ] out patently meritless claims [for admission] and expeditiously remov[e] the aliens making such claims from the country." Thuraissigiam , 140 S.Ct. at 1963.
C. Credible Fear Interview
Because Petitioner expressed a fear of persecution, the immigration officer referred him for an interview with an asylum officer. (See Dkt. 25, Attach. 5 at 5.) During the interview, the asylum officer found that Petitioner demonstrated a credible fear of persecution. (Dkt. 1 at 17–18.) Under the INA, a positive credible fear finding shifts the noncitizen into more formal removal proceedings. See 8 U.S.C. § 1225(b)(1)(B)(ii) ; 8 C.F.R. §§ 208.30(f), 235.6(a)(1).
After Petitioner's credible fear finding, DHS issued him a Notice to Appear for removal proceedings. (Dkt. 25, Attach. 6 at 2.) The notice stated that Petitioner was "an alien present in the United States who ha[d] not been admitted or paroled." (Id. ) The notice further stated:
[I]t is charged that you are subject to removal from the United States pursuant to the following provisions of law:
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border cross card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.
Section 212(a)(6)(A)(i) of the Act, as amended, as an alien present in the United States without being admitted or paroled , or who has arrived in the United
States at any time or place other than as designated by the Attorney General.
(Id. (emphasis added).) See also 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (a)(6)(A)(i).
D. Asylum Hearing
On November 19, 2019, Petitioner filed his I-589 Application for Asylum and for Withholding of Removal form. (Dkt. 25, Attach. 7 at 10.) Due to the positive credible fear screening and his pending asylum claim, DHS could not remove Petitioner until an immigration court granted him asylum relief or issued a final order of removal. See 8 U.S.C. § 1231(a)(1)(B)(i).
On January 23, 2020, the Immigration Judge held a hearing on the merits of Petitioner's asylum claim. (Dkt. 25, Attach. 9 at 2.) The Immigration Judge found that Petitioner's college-era criminal convictions for felony theft and burglary statutorily barred him from receiving asylum and a withholding of removal under both the INA and the Convention Against Torture. (Id. at 6–7.) Despite finding Petitioner "generally credible," the Immigration Judge further determined that he had "not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground." (Id. at 7.) For these reasons, the Immigration Judge "sustained" the charges of removability "lodged in the Notice to Appear"—that is, that Petitioner was removable on account of being an inadmissible noncitizen. (See id. at 11–12.) Petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA) on February 21, 2020. (Dkt. 1 at 4–5.) His appeal remains pending, and he has been detained continuously since entering DHS custody.
During this period, Petitioner claims to have filed a motion for a bond hearing, which the Immigration Judge denied. (See Dkt. 10 at 3.)
E. Commencement of Habeas Action
On March 5, 2020, Petitioner filed his first Petition for a Writ of Habeas Corpus (Dkt. 1), which he later amended, challenging (1) the constitutionality of his continued detention without a bond hearing pending the outcome of his asylum case under the Fifth Amendment's Due Process Clause; and (2) the conditions of his confinement brought about by the COVID-19 pandemic. (Dkt. 1.) In its motion to dismiss (Dkt. 24), the Government raised the statutory basis for Petitioner's detention. (Id. at 17.) Citing Petitioner's prior convictions, the Government asserted that DHS was mandatorily detaining Petitioner pursuant to 8 U.S.C. § 1226(c) —an assertion it would repeat in subsequent filings. (Id. ; see also Dkt. 30 at 7.)
Petitioner filed suit against Respondent Javier Aleman. (Dkt. 1 at 1.) Respondent Javier Aleman is the chief administrator at Petitioner's detention facility. (Dkt. 25, Attach. 11 at 2.) Due to the nature of this case, the Court refers to Respondent as "the Government" in this Order.
Shortly after, the Court ordered the United States Attorney for the Southern District of Texas to file a response. (Dkt. 7.) Approximately one month after filing his first petition, Petitioner amended his petition. (Dkt. 10.) Nearly a month after that, on May 4, 2020, Petitioner filed a separate petition that only challenged his continued detention based on the risks associated with COVID-19. (Civil Action No. 5:20-CV-00074, Dkt. 1.) Pursuant to Federal Rule of Civil Procedure 15(a), the Court construed Petitioner's separately-filed petition as a third-amended petition. (Dkt. 22 at 2.) The Court asked the Government whether it also construed the new petition as a third-amended petition, and if so, whether it opposed it. (Id. ) Further, the Court instructed the Government to discuss "any additional matters" raised in the new petition. (Id. )
Petitioner contested the Government's classification of his detention under § 1226(c) and further argued that even aliens held pursuant to § 1226(c) were nevertheless constitutionally entitled to a bond hearing. (Dkt. 39 at 1–2.) The Government submitted a second motion to dismiss and once again argued that Petitioner was not statutorily entitled to a bond hearing because he was mandatorily detained pursuant to § 1226(c) due to his past criminal convictions. (Dkt. 41 at 5–6.) The Government further argued that Petitioner was not entitled to release under Zadvydas v. Davis , 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), a Supreme Court decision holding that aliens subject to an administratively final order of removal could not be detained indefinitely. (Id. at 4–5.)
The Government did not address Petitioner's constitutional argument that even if he were detained under § 1226(c), due process entitled him to a bond hearing—an omission Petitioner noted in his response. (See Dkt. 42 at 1.)
F. Petitioner's Class Membership and the Pre-existing National Injunction
Unsatisfied with the Government's apparent misapprehension of a pro se litigant's nuanced constitutional argument, the Court ordered the Government to address Petitioner's Fifth Amendment due process challenges and the statutory basis of his detention. (Dkt. 44 at 2.) Specifically, the Court asked the Government to address whether Petitioner was, in fact, held pending the resolution of his asylum claim pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which requires the mandatory detention of inadmissible aliens seeking asylum. (Id. at 2–3.)
In its response (Dkt. 51), the Government conceded that Petitioner was detained under § 1225(b)(1)(B)(ii). (Dkt. 51 at 1.) Moreover, the Government reported that, "[a]lthough [Petitioner] is statutorily ineligible for a custody redetermination hearing (or bond hearing) under that provision, he is a member of a nationwide class action" certified by an April 2019 court order issued by a district court in the Western District of Washington, i.e., Padilla. (Id. )
In Padilla , the district court for the Western District of Washington, held that § 1225(b)(1)(B)(ii) was facially unconstitutional as applied to any arriving noncitizen who passed a credible fear interview. Padilla v. U.S. Immigr. & Customs Enf't , 387 F.Supp.3d 1219, 1229 (W.D. Wash. 2019). The court reasoned this was so because the statute did not afford detained noncitizens a bond hearing before an immigration judge. See id. The court issued a nationwide injunction to this effect, ordering that any noncitizen in expedited removal proceedings who passed a credible fear interview be released into the United States unless the government provided the alien with a bond hearing within seven days of a request for a hearing. Id. at 1232. The Ninth Circuit largely upheld the district court's decision. See Padilla v. Immigr. & Customs Enf't , 953 F.3d 1134, 1152 (9th Cir. 2020). In so doing, the Ninth Circuit reasoned that, given the substantial liberty interests at stake, "bail proceedings for noncitizens are necessary." Id. at 1143 (internal citations omitted). The court rejected the Government's contention that such noncitizens lack rights under the Due Process Clause because they have not yet been admitted to the United States, reasoning that "once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process." Id. at 1146. The court also rejected the Government's reliance on Demore v. Kim , 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), a case in which the Supreme Court held that the mandatory detention of certain criminal aliens without bond hearings complied with the Due Process Clause. Id. at 1144.
The district court's opinion partly reflected a prior BIA decision that found noncitizens who were apprehended after unlawful entry but nonetheless articulated a credible fear in the screening interview were not subject to mandatory detention under § 1225(b)(1). See Matter of X-K , 23 I. & N. Dec. 731, 732, 736 (BIA 2005), overruled by Matter of M-S , 27 I. & N. Dec. 509 (A.G. 2019).
In addition, the district court enumerated the procedures with which any such bond hearing must comply. Namely, that (1) the Government bears the burden of establishing that the noncitizen is a flight risk or a danger to the community; (2) immigration judges who order detention must issue individualized written decisions; and (3) the Government record all hearings and prepare written transcripts for the purposes of appeal. Padilla , 387 F.Supp.3d at 1232.
However, the Ninth Circuit found the district court's procedural requirements "particularly burdensome" and vacated that portion of the injunction. Padilla , 953 F.3d at 1152.
Here, though the Government reported that it had petitioned the Supreme Court for review of the national Padilla injunction, it nevertheless notified Petitioner in writing that he had a right to a "custody redetermination hearing." (Dkt. 51 at 2–3.) Moreover, Petitioner's "deportation officer also informed him that he may request a custody redetermination hearing." (Id. at 3.) For his part—and once it became clear that the Government miscategorized him—Petitioner moved the Court to conduct the bond hearing itself "to ensure that all relevant procedural safeguards are expeditiously met so as to not cause further offense to the Fifth Amendment." (Dkt. 55 at 3.)
G. Petitioner's Bond Hearing and Subsequent Complaints
On December 30, 2020, Petitioner received his Padilla -mandated bond hearing before the Immigration Judge. (Dkt. 66, Attach. 1.) However, the Immigration Judge denied Petitioner bond because he was a "danger + flight risk." (Id. )
The Immigration Court's order notes that Petitioner reserved his right to appeal the decision, and that he had until January 29, 2021, to file. (Dkt. 66, Attach. 1 at 1.) Petitioner reports that he has appealed that decision to the BIA. (Dkt. 77 at 10.)
Citing various deficiencies in his hearing, Petitioner then moved for a bond hearing before the Court. (Dkt. 68 at 3.) Chief among his complaints was that the Immigration Judge denied his request for a continuance. (See id. at 2.) Petitioner requested a continuance so that the Immigration Judge would have adequate time to consider the "documentary evidence" that he had mailed the day after receiving notice. (Id. ) That evidence had not arrived by the time the bond hearing commenced and, therefore, went unconsidered. (See id. ) Petitioner also alleged that the Government's attorney misrepresented the statutory basis of his detention during the bond hearing. (Id. )
H. Vacated Opinion and Thuraissigiam
On January 12, 2021, the Court ordered the Government to respond to Petitioner's allegations regarding his bond hearing. (Dkt. 70.) Unbeknownst to the Court, the Supreme Court had vacated the Ninth Circuit's judgment affirming the Western District of Washington's national injunction the day before. See Padilla v. U.S. Immigr. & Customs Enf't , 387 F.Supp.3d 1219, 1232 (W.D. Wash. 2019), aff'd in part , 953 F.3d 1134, 1141 (9th Cir. 2020), vacated ––– U.S. ––––, 141 S.Ct. 1041, 208 L.Ed.2d 513 (2021). The Supreme Court remanded the case back to the Ninth Circuit "for further consideration" of the Supreme Court's decision in Thuraissigiam. Immigr. & Customs v. Padilla , ––– U.S. ––––, 141 S.Ct. 1041, 208 L.Ed.2d 513 (2021). In Thuraissigiam , the Supreme Court concluded that noncitizens who are "detained shortly after unlawful entry" have "only those rights regarding admission that Congress has provided by statute." Id. at 1983. Since the Ninth Circuit's affirmance of the Padilla injunction predated the Supreme Court's decision in Thuraissigiam by two months, the Ninth Circuit did not consider whether arriving noncitizens mandatorily detained under § 1225(b), like Petitioner, have a constitutional due process right to a bond hearing in light of Thuraissigiam. That issue is now before the Court.
Discussion
Under 28 U.S.C. § 2241(c), a federal court has jurisdiction over a prisoner's petition for habeas relief only when he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; Maleng v. Cook , 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Because Petitioner is currently "in custody" within the Court's jurisdiction and asserts that his continued detention violates due process, the Court has jurisdiction over his claims. See Zadvydas , 533 U.S. at 699, 121 S.Ct. 2491 ; Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
The Government suggests that Petitioner must first exhaust his administrative remedies prior to pursuing his claims in this Court. (Dkt. 73 at 2.) However, the Court notes that exhaustion is not required "where the available administrative remedies 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." Hinojosa v. Horn , 896 F.3d 305, 314 (5th Cir. 2018). Here, Petitioner complains about his prolonged confinement, notes that the BIA appeal timeline is long, and argues that he has a constitutional right to a bond hearing before a federal judge independent of the immigration courts. (Dkt. 74 at 5–6.) Moreover, he states that he has appealed the Immigration Judge's bond denial to the BIA. (Dkt. 77 at 10.) In light of Petitioner's already prolonged detention, and because the appeal timeline exacerbates that alleged injury, the Court finds that administrative exhaustion is unnecessary to consider in this matter. Moreover, Petitioner's multiple filings raise constitutional questions that "neither [an] Immigration Judge nor th[e] Board may rule on." See Matter of Rodriguez-Carrillo , 22 I. & N. Dec. 1031, 1035 (BIA 1999). Accordingly, exhaustion would be "futile" because it could not answer the chief question raised: whether constitutional due process vests Petitioner with the right to immediate release or a bond hearing in federal court.
Petitioner challenges the constitutionality of his mandatory detention under the Fifth Amendment's Due Process Clause. He also claims that the conditions of confinement brought about by the COVID-19 pandemic render his continued detention unconstitutional under the Fifth Amendment. Before considering the merits of Petitioner's Due Process challenge, the Court begins its discussion by offering an overview of the statutory framework for immigration detention and the federal courts’ interpretation of those statutes. As discussed below, the Court concludes that Petitioner's continued mandatory detention without a bond hearing in federal court does not violate the Fifth Amendment and that he is not entitled to a bond hearing. Next, the Court addresses Petitioner's conditions of confinement claims. Here, the Court concludes that Petitioner's conditions of confinement claims cannot be raised in a habeas petition.
A. Statutory Framework
The INA creates a comprehensive and multifaceted detention scheme that advances Congress's goals in ensuring an apprehended noncitizen's presence at a removal hearing and public safety during the removal process. See Zadvydas , 533 U.S. at 699, 121 S.Ct. 2491 (noting that detention serves the purpose of "assuring the alien's presence at the moment of removal."); see also Matter of Valdez-Valdez , 21 I. & N. Dec. 703, 709 (BIA 1997) (noting that the immigration detention provisions "were geared toward ensuring community safety and the criminal alien's appearance at all deportation hearings."). However, whether a noncitizen is subject to immigration detention largely depends on his status. For instance, arriving noncitizens like Petitioner, who crossed the border without inspection or seeking admission, are mandatorily detained. See 8 U.S.C. §§ 1225(b)(1)(B), 1225(b)(2)(A). Other noncitizens, such as those already within the country but who have committed certain criminal offenses, are also mandatorily detained, as are those who are subject to administratively final orders of removal and are awaiting their deportation. §§ 1226(c), 1231(a). Although only one of these statutes (i.e., § 1225(b) ) currently applies to Petitioner, the Court reviews all three United States Code sections because Parties cite to caselaw relevant to all three with regard to Petitioner's due process rights. See 8 U.S.C. §§ 1225, 1226, 1231.
Section 1225 applies to "applicants for admission"—noncitizens who "arrive[ ] in the United States," or are "present" in the United States but have "not been admitted." 8 U.S.C. § 1225(a)(1). There are two categories of applicants for admission: (1) those who fall under § 1225(b)(1) ; and (2) those who fall under § 1225(b)(2). Petitioner falls under § 1225(b)(1), which applies to noncitizens initially determined to be inadmissible because they lack valid documentation. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 837, 200 L.Ed.2d 122 (2018). Normally, noncitizens covered by § 1225(b)(1) are subject to an expedited removal process that does not include a hearing before an immigration judge or review of the removal order. § 1225(b)(1)(A)(i). If, however, a noncitizen covered by § 1225(b)(1) "indicates either an intention to apply for asylum ... or a fear of persecution," an immigration officer must refer the noncitizen for an interview with an asylum officer. § 1225(b)(1)(A)(ii) ; 8 C.F.R. § 208.30(d). If the asylum officer determines that the noncitizen has a credible fear of persecution, the noncitizen "shall be detained for further consideration of the application for asylum." § 1225(b)(1)(B)(ii).
Under the statute, the only opportunity for a noncitizen to be released pending a decision on the asylum application is temporary parole "for urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A) ; see also 8 C.F.R. §§ 212.5(b), 235.3. The statute does not impose "any limit on the length of detention" pending a decision on the asylum application and does not authorize bond hearings or release on bond. Jennings , 138 S.Ct. at 845 ("In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin.").
On the other hand, § 1226 establishes a more general framework for the arrest, detention, and release of noncitizens (including those who were lawfully admitted but now deemed deportable). See § 1226 ; see also Jennings , 138 S.Ct. at 837 (" Section 1226 generally governs the process of arresting [deportable aliens] pending their removal."). Section 1226(a) grants DHS the discretionary authority to determine whether a noncitizen should be detained, released on bond, or released on conditional parole pending the completion of formal removal proceedings. For example, ICE makes an initial custody determination, including the setting of bond, for noncitizens arrested pursuant to § 1226(a), and the detainee may request a bond redetermination by an immigration judge. See 8 C.F.R. § 236.1(c)(8), (d)(1). However, § 1226(c) describes a class of "criminal aliens" who may only be released under very limited circumstances who are not afforded access to the aforementioned bond procedures. See § 1226(c)(2) ; Jennings , 138 S.Ct. at 837–38.
Finally, § 1231 governs the detention and release of noncitizens who are subject to a final removal order at the conclusion of formal removal proceedings. Detention is mandatory during the 90-day "removal period" provided by statute. See § 1231(a)(2). If ICE is unable to remove the noncitizen during the removal period, DHS may continue to detain certain noncitizens specified in the statute or release them under an order of supervision. § 1231(a)(6). Section 1231(a)(6), however, does not authorize indefinite detention. Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491.
In short, among the three immigration statutes described, both §§ 1225(b) and 1226(c) mandate detention without a bond hearing until removal proceedings have concluded, even if the detention becomes prolonged. Jennings , 138 S.Ct. at 842, 847.
B. Caselaw Overview
Despite the Fifth Circuit's observation last year that the "Supreme Court has recently taken a narrow view of habeas relief in the immigration context," neither court has answered the precise question at issue in this case, and few courts have considered the issue since the Supreme Court vacated the Ninth Circuit's Padilla opinion. See Bacilio-Sabastian v. Barr , 980 F.3d 480, 483 (5th Cir. 2020). Because Petitioner relies heavily on Supreme Court and out-of-circuit caselaw connected to immigration detention schemes other than that provided by in § 1225(b) in his briefing, the Court offers a summary of the relevant judicial opinions to analyze the statutory schemes described above.
1. Supreme Court Authority Regarding Immigration Detention
In 2001, the Supreme Court held that some noncitizens subject to a final order of removal could not be detained under § 1231(a)(6) indefinitely while the Government attempted to effectuate their removal. Zadvydas , 533 U.S. at 679, 121 S.Ct. 2491. The Court further held that detention for such noncitizens became constitutionally suspect after a presumptively reasonable six-month period of post-removal order detention. Id. at 701, 121 S.Ct. 2491. To get to that conclusion, the Court applied the canon of constitutional avoidance to "read an implicit limitation" into § 1231(a)(6) that would limit an alien's post-removal-period of detention to a period reasonably necessary to bring about that alien's removal. See id. at 689, 121 S.Ct. 2491. Though detention exceeding six months was suspect, it did not automatically entitle a noncitizen to release. Id. Rather, the noncitizen had to "provide[ ] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. Under that standard, even prolonged detention could still be constitutional if there remained a "significant likelihood" that the noncitizen would be removed. Id.
The canon of constitutional avoidance, as the term is used here, is defined as "a cardinal principle of statutory interpretation ... that when an Act of Congress raises a serious doubt as to its constitutionality, [a court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Zadvydas , 533 U.S. at 689, 121 S.Ct. 2491 (internal quotations omitted).
Two years later in Demore , the Supreme Court considered whether the prolonged detention of a noncitizen with criminal convictions mandatorily detained under § 1226(c) categorically violated constitutional due process. 538 U.S. at 518–21, 123 S.Ct. 1708. The Supreme Court rejected that categorical challenge and upheld the statute. Id. at 529–31, 123 S.Ct. 1708. Unlike the litigants in Zadvydas who were subject to indefinite confinement after their home nations refused their repatriation, the Supreme Court reasoned that detention of those who were not yet subject to a final removal order had "a definite termination point"—that is, when their removal orders became final. See id. at 523, 529–30, 123 S.Ct. 1708.
Then, a little less than a year before Petitioner crossed the Rio Grande, the Supreme Court decided Jennings. In Jennings , the Supreme Court reversed a Ninth Circuit case in which the lower court applied the constitutional avoidance canon to find that §§ 1225(b), 1226(a), and 1226(c) contained implicit limitations on how long noncitizens may be detained without a bond hearing. 138 S.Ct. at 842, 846–47. The Supreme Court found that, rather than containing the requisite ambiguity needed to employ the avoidance canon, the statutes were clear on their face. Id. at 845. Relevant to the instant case, " §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable [removal] proceedings." Id. The only exception to this scheme is contingent upon the Attorney General's determination that "urgent humanitarian reasons or significant public benefit" favors parole for a noncitizen detained under §§ 1225(b)(1) and (b)(2). Id. at 844. "[T]here are no other circumstances under which aliens detained under § 1225(b) may be released." Id. (emphasis in original). The Court further clarified that this mandatory detention scheme forecloses an implicit statutory right to a bond hearing because "[d]etained does not mean ‘released on bond.’ " Id. at 851. Nevertheless, because the Ninth Circuit had anchored its decision in statutory interpretation, the Supreme Court expressly declined to discuss the parties’ constitutional claims and remanded the issue back to the court of appeals. Id. at 851–52.
2. District Court Decisions Post-Jennings
After Jennings , and as Petitioner's legal issues were taking form, district courts around the country heard constitutional challenges to the very mandatory detention scheme under which he and other similarly situated noncitizens were held. Most courts to consider constitutional challenges to § 1225(b) ’s mandatory detention provision looked to the Supreme Court's decisions in Zadvydas and Demore and concluded that a noncitizen's prolonged detention "will—at some point—violate the right to due process." Banda v. McAleenan , 385 F.Supp.3d 1099, 1116 (W.D. Wash. 2019) (quoting Sajous v. Decker , 2018 WL 2357266, at *8 (S.D.N.Y. May 23, 2018) ); see also Jamal A. v. Whitaker , 358 F.Supp.3d 853, 858, 859 (D. Minn. 2019) ; Kouadio v. Decker , 352 F.Supp.3d 235, 241 (S.D.N.Y. 2018) ; Tuser E. v. Orlando Rodriguez , 370 F.Supp.3d 435, 442–43 (D.N.J. 2019) ; De Ming Wang v. Brophy , 2019 WL 112346, at *3 (W.D.N.Y. Jan. 4, 2019) ; Fatule-Roque v. Lowe , 2018 WL 3584696, at *5 (M.D. Pa. July 26, 2018) (collecting cases); Otis V. v. Green , 2018 WL 3302997, at *7–*8 (D.N.J. July 5, 2018).
But other courts referred to the Supreme Court's pre- Zadvydas caselaw concerning unlawfully present noncitizens apprehended shortly after entering the country. See, e.g., Poonjani v. Shanahan , 319 F.Supp.3d 644, 647–48 (S.D.N.Y. 2018). Although these courts represent a minority view, they generally found that the constitutional due process rights of noncitizens deemed at the "threshold of initial entry" extended no further than the process outlined by statute. See Mendez Ramirez v. Decker , 2020 WL 1674011, at *13 (S.D.N.Y. Apr. 3, 2020) ; see also Gonzalez Aguilar v. McAleenan , 2019 WL 5864821, at *3 (D.N.M. Nov. 8, 2019).
C. Due Process for Noncitizens Apprehended Near the Border Post-Thuraissigiam
"[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders." Kwong Hai Chew v. Colding , 344 U.S. 590, 596 n.5, 73 S.Ct. 472, 97 L.Ed. 576 (1953). But the Supreme Court "has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia , 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Petitioner lacks lawful status. Instead, he is appropriately held as an arriving alien pursuant to § 1225(b) given his apprehension near Brownsville, Texas at an undesignated place of entry after unlawfully crossing the Rio Grande without a valid entry document. And while he already received a bond hearing before an immigration judge as part of the Court's enforcement of the national Padilla injunction, Petitioner argues that the Fifth Amendment's Due Process Clause requires his immediate release or that he at least be given a bond hearing before a federal judge. (Dkt. 68 at 3; Dkt. 74 at 1.) The Court disagrees. When a noncitizen attempts to unlawfully cross the border as Petitioner did, his constitutional right to due process does not extend beyond the rights provided by statute.
For a noncitizen, "the nature of [due process] protection may vary depending upon [an alien's] status and circumstance." Zadvydas , 533 U.S. at 693, 121 S.Ct. 2491. For instance, a "continuously present resident alien" has greater due process rights than one who stands at the "threshold of entry." Compare Landon , 459 U.S. at 32, 103 S.Ct. 321 ("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.") (emphasis added), with Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ("But an alien on the threshold of initial entry stands on a different footing," constitutionally speaking, than "aliens who have once passed through our gates, even illegally.").
The Court notes that the Supreme Court's observation in Landon appears to reflect the statutory structure of § 1226(a) and § 1225(b).
Far from being novel or rarely employed, this distinction has repeatedly shaped immigration detention cases for over one hundred and twenty years. See, e.g., Thuraissigiam , 140 S.Ct. at 1977 (describing this distinction as a "century-old rule"); Leng May Ma v. Barber , 357 U.S. 185, 188–90, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (alien "paroled" into the United States pending admissibility determination had not effected "entry"); Mezei , 345 U.S. at 215, 73 S.Ct. 625 (temporary removal of alien "from ship to shore" was not "considered a landing" and did not alter his immigration status); Ekiu v. United States , 142 U.S. 651, 660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892) ("As to [persons who have not effected entry], the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law."). These cases make clear that, for noncitizens who have not effected legal entry into the United States, due process is strictly limited in scope.
Two of those cases— Thuraissigiam and Mezei —merit additional discussion because their holdings govern the Court's decision here. In relevant part, Thuraissigiam concerned a due process challenge raised by a Sri Lankan national apprehended 25 yards from the nation's border, which he crossed illegally. Thuraissigiam , 140 S.Ct. at 1982–83. Like with Petitioner, DHS processed Thuraissigiam as an inadmissible noncitizen subject to expedited removal because he lacked valid entry documents. Id. at 1967. But unlike Petitioner, an asylum officer determined that Thuraissigiam lacked a credible fear of persecution as defined by § 1225(b)(1)(B)(v). Id. at 1968. As a result, Thuraissigiam remained in expedited removal. Id. Consequently, Thuraissigiam petitioned the court for a writ of habeas corpus, asserting a fear of persecution and requesting a second opportunity to apply for asylum, which could result in his placement in formal removal proceedings. See id.
Although Thuraissigiam did not principally feature prolonged detention claims, the majority opinion delineated the boundaries of due process claims that can be made by arriving noncitizens. Quoting Ekiu , the Court held that with regard to noncitizens who have never been naturalized or acquired any domicile or residence in the United States, including those stopped at the border, "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." 140 S.Ct. at 1982.
In reaching this conclusion, the Thuraissigiam Court cited its decision in Mezei authoritatively. 140 S.Ct. at 1982. Indeed, the distinction between aliens "continuously present" and those who stand at the "threshold of entry" governed the outcome in Mezei as well. See Mezei , 345 U.S. at 208, 214, 73 S.Ct. 625. Ignatz Mezei had lived in the United States as a resident alien for twenty-five years before he returned to his home country in Europe for two years. Id. at 216–17, 73 S.Ct. 625 (Black, J., dissenting). When he attempted to return to the United States, an immigration inspector denied him entry, and the United States government detained him on Ellis Island pending the "disposition of his case." Id. at 208, 73 S.Ct. 625 (majority opinion). Because his home country refused to accept his return, the Government continued his detention on Ellis Island while pursuing other removal options. Id. at 209, 73 S.Ct. 625. Twenty-one months later, Mezei filed a habeas petition claiming that his prolonged detention without a hearing violated his constitutional rights and sought a bond hearing in federal court. Id. The district court granted the petition and the Second Circuit upheld its decision. Id. The Supreme Court disagreed.
Though the Court accepted that even unlawfully present noncitizens enjoy constitutional due process rights during their removal proceedings, it made plain that the scope of that process was exceedingly narrow: "But an alien on the threshold of initial entry stands on a different footing ... Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Id. at 212, 73 S.Ct. 625. Therefore, despite Mezei's prior twenty-five-year tenure in the United States and his confinement on Ellis Island, he was treated for constitutional purposes "as if stopped at the border." Id. at 215, 73 S.Ct. 625. For this reason, the Government's decision to detain Mezei for a prolonged period pursuant to congressional authority did not make his confinement unconstitutional. Id. at 215–16, 73 S.Ct. 625.
Petitioner's story echoes those in both Thuraissigiam and Mezei , and "more than a century of precedent" concerning noncitizens "seeking initial admission to the United States" governs the outcome here. See Thuraissigiam , 140 S.Ct. at 1982. Like Thuraissigiam, officers apprehended Petitioner shortly after he unlawfully entered the country, identified him as an inadmissible noncitizen because he lacked valid entry documents, and processed him for expedited removal. Petitioner's status differs from Thuraissigiam's only insofar as his positive credible fear screening. That finding suspended Petitioner's expedited removal under § 1225(b)(1)(A)(i), pending a determination as to whether he had a meritorious asylum claim—the very relief that Thuraissigiam sought in his habeas petition. However, it did not otherwise alter his status as an "applicant for admission" subject to mandatory detention under the statute. See §§ 1225(a)(1), 1225(b)(1)(B)(ii).
Though Petitioner does not ask for a second bond hearing before an immigration judge, his filings might be read as stating that constitutional due process requires the Court to review the Immigration Judge's decision. (Dkt. 74.) Insofar as Petitioner might be advocating for such review, the Court rejects it "[b]ecause the Due Process Clause ... does not require review" of certain discretionary decisions in the immigration courts. See Thuraissigiam , 140 S. Ct. at 1983 ; see also U.S. ex rel. Barbour v. Dist. Dir. of Immigr. & Naturalization Serv., San Antonio, Tex. , 491 F.2d 573, 577 (5th Cir. 1974) ("The Immigration and Naturalization Act of 1952 vests wide discretion in the Attorney General and his delegates to determine whether or not to release an alien on bail pending a final decision in deportation proceedings.").
Like Mezei, Petitioner protests his prolonged detention and seeks a bond hearing before the Court. The Court is bound by both Mezei and Thuraissigiam. Heeding the decision in Thuraissigiam , the Court must treat Petitioner as an individual "on the threshold of initial entry" because he was apprehended and "detained shortly after unlawful entry." See Thuraissigiam , 140 S.Ct. at 1964, 1982. That is, even though Petitioner is detained in Laredo, he "is not considered to have entered the country" for the purposes of constitutional due process. See Thuraissigiam , 140 S.Ct. at 1982. Likewise, adhering to Mezei means that the Court must find that Petitioner's continued detention, even without a bond hearing before the Court, does not "deprive[ ] him of any statutory or constitutional right" under the Due Process Clause. See Mezei , 345 U.S. at 216, 73 S.Ct. 625.
Petitioner resists this conclusion and appears to argue that the Supreme Court's decision in Zadvydas abrogated Ekiu, Mezei , and their progeny. (See, e.g. , Dkt. 74 at 2.) But Zadvydas also instructs that noncitizens apprehended during an illegal entry lack "certain constitutional protections available to persons inside the United States" because they remain, as a legal matter, "outside of our geographic borders." See Zadvydas , 533 U.S. at 693, 121 S.Ct. 2491.
To be sure, unlike many arriving aliens who lack established ties or legal contacts with the United States, Petitioner formerly possessed lawful status through his 2004 student visa, and his wife and children are United States citizens. (Dkt. 74 at 4.) And in the past, the Supreme Court suggested that the narrow scope of due process rights afforded to arriving noncitizens was predicated on their lack of such ties. See Ekiu , 142 U.S. at 661–64, 12 S.Ct. 336 ("foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted to the country pursuant to law " are not permitted to enter "in opposition" to law (emphasis added)). But it cannot be that Petitioner's prior residence in the United States from when he was a college student or his social ties to the country, provide him with a greater degree of constitutional due process when Mezei's twenty-five-year-long residency failed to "transform" his case into "something other than an exclusion proceeding." See Mezei, 345 U.S. at 213, 73 S.Ct. 625 ; see also Martinez v. Larose , 980 F.3d 551, 554 (6th Cir. 2020) (mem.) (Thapar, J., concurring) (positing that Mezei continued to govern a noncitizen's due process claim where noncitizen previously resided in the United States). Indeed, this limitation in constitutional due process remains even when Executive Branch officers "enlarg[e]" an arriving noncitizen's detention "bounds" by paroling him into society. See Kaplan v. Tod , 267 U.S. 228, 257–58, 45 S.Ct. 257, 69 L.Ed. 585 (finding that the "nature of [a child's] stay within the territory was not changed" when the Government committed her to the custody of a civic humanitarian organization).
As far as Petitioner is concerned, whatever procedure Congress has authorized is sufficient due process. See Mezei , 345 U.S. at 212, 73 S.Ct. 625. Pursuant to its "plenary authority" to establish immigration law, Congress has provided that arriving noncitizens, like Petitioner, who pursue asylum claims "shall be detained for further consideration of the application for asylum." § 1225(b)(l)(B)(ii) ; Thuraissigiam , 140 S.Ct. at 1982. "It is not within the province of the judiciary" to contravene the "lawful measures of the legislative and executive branches of the national government" to permit noncitizens like Petitioner procedural recourse beyond that identified in the applicable statute. See Ekiu , 142 U.S. at 660, 12 S.Ct. 336. Accordingly, Petitioner's request for immediate release or, in the alternative, for a bond hearing before the Court is denied.
D. Conditions of Confinement Claims are Not Cognizable in a Habeas Petition
The "sole function" of habeas "is to grant relief from unlawful imprisonment or custody." Pierre v. United States , 525 F.2d 933, 935–36 (5th Cir. 1976). To that end, "[i]f a favorable determination ... would not automatically entitle [the petitioner] to accelerated release ... the proper vehicle" is a civil rights lawsuit. Carson v. Johnson , 112 F.3d 818, 820–21 (5th Cir. 1997). For that reason, the Fifth Circuit does not permit habeas petitioners to challenge adverse conditions of confinement related to the COVID-19 pandemic. See Rice v. Gonzalez , 985 F.3d 1069, 1070 (5th Cir. 2021).
Petitioner alleges that living arrangements amongst detainees make it difficult (if not impossible) to effectively socially distance—one of the common means of protecting oneself from viral infection. (Dkt. 27, Attach. 1 at 4.) According to Petitioner, "dorms are filled with between 15–60 people, all in a single room." (Id. ) Bunk beds are placed so closely together that noncitizen detainees "can reach out and touch each other" from their beds. (Id. ) Entire units of detainees must share four toilets and seven showers, which sometimes do not work and are not cleaned between uses. (Id. at 5.) Noncitizen detainees use sinks intended for handwashing and teeth brushing for food preparation and cleaning laundry. (Id. ) And sometimes, detention facility personnel task detainees with cleaning duties without providing them with proper protective gear, like gloves. (Id. ) Petitioner argues that the close proximity in which noncitizen detainees live, eat, clean, and sleep together heightens the risk of transmission and infection. (See id. ) That concern is one of particular sensitivity to Petitioner because he allegedly suffers from conditions—namely, chronic Hepatitis C and high blood pressure—that leave him more vulnerable to severe COVID-19 symptoms. (Dkt. 27, Attach. 1 at 3.) Petitioner argues that these conditions are unconstitutional and therefore warrant his release. (Dkt. 27, Attach. 1 at 9.)
Petitioner is not the first detained noncitizen to raise such concerns and demand release. See Sanchez v. Brown , 2020 WL 2615931, at *12 (N.D. Tex. May 22, 2020) (collecting cases and denying habeas relief for lack of subject matter jurisdiction); see also Sacal-Micha v. Longoria , 2020 WL 1815691, at *6 n.6 (S.D. Tex. Apr. 9, 2020) (concluding that habeas petitioner cannot use the writ to obtain release from detention center based on conditions of confinement related to the COVID-19 pandemic).
These allegations are identical to those in Rice v. Gonzalez , where the Fifth Circuit held that a state prisoner protesting conditions that made "it exceedingly difficult, if not impossible, to practice proper hygiene and social distancing" failed to state a claim for relief in a habeas petition. 985 F.3d at 1069–70. Habeas provides relief from detention lacking a legal basis. Pierre , 525 F.2d at 935–36. Here, the proper remedy for unconstitutional conditions of confinement would be equitable—to "enjoin continuance of any practices or requiring correction of any" adverse conditions—not release from the complained-of confinement. Cook v. Hanberry , 596 F.2d 658, 660 (5th Cir. 1979). Accordingly, because Petitioner asks for release in response to conditions that could, at most, only be enjoined, the Court holds that this ground of Petitioner's petition for writ of habeas corpus must be dismissed for lack of subject matter jurisdiction.
Conclusion
For the foregoing reasons, the Government's first Motion to Dismiss (Dkt. 24) and second Motion to Dismiss (Dkt. 41) are hereby GRANTED. Petitioner Adrian Petgrave's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Dkt. 1); First Amended Petition for Writ of Habeas Corpus (Dkt. 10); Second Amended Petition for Writ of Habeas Corpus (Dkt. 32); and Third Amended Petition for Writ of Habeas Corpus (Dkt. 43) are hereby DISMISSED WITHOUT PREJUDICE. Petitioner's Motion to Enforce the December 21, 2020 Court Order (Dkt. 74); four Emergency Motions for a Temporary Restraining Order and Preliminary Injunction (Dkts. 27, 33, 38, and 76); and two Motions for Appointment of Counsel (Dkts. 28 and 34) are further DENIED AS MOOT. Petitioner's Motion to Reconsider Decision for Habeas Court to Conduct Bond Hearing (Dkt. 68) is DENIED AS PREMATURE. A separate Judgment will issue.
A district court need only appoint counsel for a § 2241 petitioner if it determines that "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Here, Petitioner's claims are without merit and the interests of justice did not otherwise require that Petitioner receive appointed counsel prior to the Court's dismissal of the case.
IT IS SO ORDERED.