Aguilera v. Barr

1 WO MW [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] No. CV-20-01552-PHX-JAT (JFM) 9 Brandon Alexis Martinez Aguilera, 10 Petitioner, ORDER 11 v. 12 William P. Barr, et al., 13 Respondents. [14] 15 Petitioner Brandon Alexis Martinez-Aguilera (A# 204-632-967), who is detained in 16 the CoreCivic La Palma Correctional Center (“LPCC”), has filed, through counsel, a 17 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and Complaint for Injunctive 18 and Declaratory Relief (Doc. 1) and a Motion for Preliminary Injunction (Doc. 2). As 19 follows, the Petition will be dismissed with leave to amend, and the Motion will be denied 20 as moot. 21 I. Background 22 Petitioner is a native and citizen of Mexico. On an unknown date, he entered the 23 United States, and on July 31, 2018, he was granted Deferred Action for Childhood 24 Arrivals (“DACA”), valid for two years, until July 30, 2020. (Doc. 1-7.) 25 On August 16, 2018, Petitioner was convicted of disorderly conduct in violation of 26 section 13-2904(A)(1) of the Arizona Revised Statutes and was sentenced to 180 days in 27 jail, of which 179 days were suspended, along with 3 years of probation. He was also 28 ordered to abstain from alcohol for the 3-year probation period, prohibited from having 1 contact with the victims, and fined a domestic violence family protection fee. In September 2 2018, Petitioner was charged with “causing property damage to a hotel,” which was 3 “dismissed after a misdemeanor compromise was approved by a judge on February 5, 4 2019.” (Doc. 1-3 at 4.) 5 Petitioner was issued a Notice to Appear (“NTA”) on May 31, 2019, charging him 6 as removable from the United States pursuant to Immigration and Nationality Act 7 § 212(a)(6)(A)(i), 8 U.S.C. § 1182 (a)(6)(A)(i), as an alien present in the United States 8 without having been admitted or paroled. Petitioner was then detained in the custody of 9 the United States Department of Homeland Security (“DHS”), Immigration and Customs 10 Enforcement (“ICE”). (Doc. 1-8.) On June 7, 2019, United States Citizenship and 11 Immigration Services (“USCIS”) issued a Notice of Action stating that Petitioner’s DACA 12 status and employment authorization was “terminated automatically as of the date [his] 13 NTA was issued.” (Doc. 1-9.) 14 Following a custody redetermination hearing on June 18, 2019, an immigration 15 judge (“IJ”) ordered Petitioner released on bond in the amount of $8,000, and he was 16 released the same day. (Doc. 1-4.) DHS appealed the IJ’s decision to the Board of 17 Immigration Appeals (“BIA”). On April 24, 2020, the BIA sustained DHS’s appeal, 18 vacated the IJ’s order, and ordered Petitioner to be detained without bond. (Doc. 1-3.) The 19 BIA found the IJ’s “decision include[d] clearly erroneous findings of fact regarding the 20 [Petitioner’s] criminal history that were not properly considered”1 and concluded that he 21 had “not satisfied his burden to show that he is a not a danger to the community.” (Id. at 22 4.) On August 4, 2020, Petitioner was again detained. (Doc. 1 ¶ 4.) 23 . . . . 24 . . . . [25] 26 1 The BIA found that the IJ was clearly erroneous in finding Petitioner’s 2018 conviction was for disorderly conduct, rather than for domestic violence; finding that 27 Petitioner had been placed on probation for his 2018 conviction, when he had been sentenced to jail; and finding Petitioner’s criminal activity was not preceded or followed 28 by any additional criminal conduct, when the record reflected that he had been criminally charged for a later separate offense. (Doc. 1-3 at 4.) 1 II. Petition 2 In the Petition, Petitioner names former United States Attorney General William 3 Barr, former Acting DHS Secretary Chad Wolf, ICE Phoenix Field Office Director Albert 4 Carter, former USCIS Senior Official Performing the Duties of the Director Kenneth T. 5 Cuccinelli, USCIS Field Office Director John Ramirez, and USCIS District Director Mario 6 Ortiz. Petitioner brings four grounds for relief. 7 In Ground One, entitled “Unlawful Punishment,” Petitioner claims that his detention 8 is presumptively punitive and violates the Due Process Clause of the Fifth Amendment. 9 He alleges that, unlike “his criminal counterparts,” Respondents are not releasing 10 immigration detainees, and “[d]etention itself exposes [Petitioner] to an unacceptable risk 11 of contracting COVID-19 and suffering bodily harm or death as a result.” 12 In Ground Two, entitled “Special Relationship,” Petitioner claims that his continued 13 detention violates the Due Process Clause of the Fifth Amendment because Respondents 14 have failed to provide him reasonable care and safety while in their custody. He alleges 15 “Respondents are subjecting [him] to [a] heightened risk of contracting COVID-19, for 16 which there is no vaccine, known treatment, or cure,” and thereby “subjecting [him] to a 17 substantial risk of serious harm.” 18 In Ground Three, entitled “Revocation of DACA,” Petitioner claims that 19 Respondents’ automatic termination of his DACA status based on an NTA, without notice 20 or an opportunity to respond, was arbitrary and capricious in violation of the 21 Administrative Procedures Act (“APA”) and the Due Process Clause of the Fifth 22 Amendment. 23 In Ground Four, Petitioner claims that the BIA’s “failure to apply the correct 24 standard of review against its own regulations” amounts to an error of law and violates 25 Petitioner’s rights under the Due Process Clause “because it allows the government to 26 infringe on his fundamental liberty interests.” 27 Petitioner asks the Court to: (1) issue a writ of habeas corpus for his immediate 28 release from detention; (2) declare that “Respondents’ continued detention in civil 1 immigration custody of individuals at increased risk for severe illness, including persons 2 with underlying medical conditions that may increase the risk of serious COVID-19, 3 violates the Due Process Clause”; (3) order Respondents to review Petitioner’s “bond 4 appeal under the correct standard of review”; (4) order Respondents to “reinstate 5 [Petitioner’s] DACA status and allow him to have the remainder of his DACA status until 6 it expires or alternatively allow [him] to respond to the termination notice of his DACA 7 status”; (5) enjoin Respondents from removing him from the United States; and (6) award 8 him costs and reasonable attorneys’ fees under the Equal Access to Justice Act. 9 III. Discussion 10 A federal district court is authorized to grant a writ of habeas corpus under [11] 28 U.S.C. § 2241 where a petitioner is “in custody under or by color of the authority of the 12 United States . . . in violation of the Constitution or laws or treaties of the United States.” [13] 28 U.S.C. §§ 2241 (c)(1), (3). The writ of habeas corpus historically “provide[s] a means 14 of contesting the lawfulness of restraint and securing release.” Department of Homeland 15 Security v. Thuraissigiam, 591 U.S. ___ , 140 S. Ct. 1959, 1969 (2020); see also Munaf v. 16 Geren, 553 U.S. 674, 693 (2008); Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th 17 Cir. 2012) (habeas corpus “provides a remedy to non-citizens challenging executive 18 detention.”). 19 Habeas corpus review in federal district court is not available for claims “arising 20 from the decision or action by the Attorney General to commence proceedings, adjudicate 21 cases, or execute removal orders,” 8 U.S.C. § 1252 (g), “arising from any action taken or 22 proceeding brought to remove an alien,” 8 U.S.C. § 1252 (b)(9), or “challeng[ing] a 23 ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General 24 has made regarding [an alien’s] detention or release,” Demore v. Kim, 538 U.S. 510 , 516 25 (2003) (discussing 8 U.S.C. § 1226 (e)); see also 8 U.S.C. § 1252 (a)(2)(B)(ii) (precluding 26 review of other discretionary decisions and actions specified by statute).2 The limitation [27] 28 2 See also Patchak v. Zinke, 583 U.S. ___ , 138 S. Ct. 897, 905 (2018) (finding the jurisdiction-stripping provision which “applie[d] ‘[n]otwithstanding any other provision of 1 on review of discretionary determinations “does not, however, preclude ‘habeas 2 jurisdiction over constitutional claims or questions of law.’” Hernandez v. Sessions, 872 3 F.3d 976, 987 (9th Cir. 2017) (quoting Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th 4 Cir. 2011)); see also Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (“claims that 5 the discretionary process itself was constitutionally flawed[,] are ‘cognizable in federal 6 court.’” (citations omitted)). But “[h]abeas jurisdiction over such legal and constitutional 7 claims is proper only if they are ‘colorable,’ i.e., ‘the claim must have some possible 8 validity.’” Hernandez, 872 F.3d at 988 (citation omitted). 9 District courts are directed to screen habeas corpus petitions before requiring the 10 government to file a response. A district court may summarily dismiss a habeas corpus 11 petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner 12 is not entitled to relief in the district court.” Rule 4, foll. 28 U.S.C. § 2254.3 See also 13 McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss 14 summarily any habeas petition that appears legally insufficient on its face”); Clayton v. 15 Biter, 868 F.3d 840, 845 (9th Cir. 2017) (“District courts adjudicating habeas petitions 16 . . . are instructed to summarily dismiss claims that are clearly not cognizable.”); Gutierrez 17 v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly allows a district court to 18 dismiss summarily the petition on the merits when no claim for relief is stated”). 19 A. Grounds One and Two – Detention Conditions 20 Petitioner’s challenges to his continued detention during the COVID-19 pandemic 21 fail to state a claim for habeas corpus relief. Petitioner does not articulate any specific non22 conclusory grounds or facts to support that the extraordinary remedy of release is necessary 23 to cure any alleged violation of his constitutional rights. See Munaf, 553 U.S. at 693 (“The 24 question, [] even where a habeas court has the power to issue the writ, is whether this be a [25] law,’” included “the general grant of federal-question jurisdiction, 28 U.S.C. § 1331”); [26] 5 U.S.C. § 701 (a)(1) (the APA does not apply “to the extent that . . . statutes preclude judicial review.”). [27] 3 The Rules Governing Section 2254 Cases in the United States District Courts apply 28 to habeas corpus proceedings under § 2241. See Rule 1(b), foll. 28 U.S.C. § 2254 . 1 case in which that power ought to be exercised.” (internal quotations and alternation 2 omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (“As with 3 any equity case, the nature of the violation determines the scope of the remedy.”); Roman 4 v. Wolf, 977 F.3d 935, 942 (9th Cir. 2020) (finding the district court “was permitted to 5 order the reduction of [an ICE detention facility’s] population, which may have required 6 the release of some detainees, if such a remedy was necessary to cure the alleged 7 constitutional violations”). The fact that other district courts have granted release does not 8 confer legal or factual grounds for release in this case. See Roman, 977 F.3d at 945 -6 9 (advising that “[t]he district court should refrain from relying on declarations filed in other 10 litigation” and any relief granted should reflect the current facts and medical evidence 11 presented in the case). 12 Similarly, Petitioner’s allegations are far too generalized and conclusory to support 13 a claim of unconstitutional conditions of confinement. See Bell v. Wolfish, 441 U.S. 520 , 14 535–39 (1979); Roman, 977 F.3d at 943–44. Petitioner does not allege that there are any 15 specific circumstances that create a substantial risk that he will suffer serious harm. While 16 he cites to a May 2020 district court decision which found conditions posed a substantial 17 risk of serious harm to a medically vulnerable detainee in LPCC, Petitioner fails to address 18 how that decision relates to his individual characteristics or circumstances. Nor does 19 Petitioner set forth any specific allegations concerning the actual conditions, policies, or 20 practices in place in LPCC concerning COVID-19 that he claims are unconstitutional. 21 Instead, he only points to the number of positive detainees and generally alleges that he “is 22 subjected to close physical contact with ICE officers, detention center staff, and other 23 detainees without providing them [sic] with masks, gloves, adequate hand sanitizer, 24 distance, or other measures mandated by experts, government officials, and the CDC to 25 protect people from infection” (Doc. 1 ¶ 118), without offering any specific supporting 26 facts, declarations, or other evidence. Absent more, Petitioner fails to state a colorable 27 claim that Respondents have acted in some constitutionally deficient manner with respect 28 to the conditions under which he is detained or that his continued detention poses an 1 unconstitutional risk of harm that warrants his release from detention. See James v. Borg, [2] 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a 3 statement of specific facts do not warrant habeas relief.”). 4 B. Ground Three – DACA Termination 5 Petitioner also fails to state a cognizable claim arising from the termination of his 6 DACA status and the initiation of his removal proceedings. First, Petitioner lacks standing 7 to challenge the revocation of his DACA status by USCIS, because success on the merits 8 of his claim would not provide him with the redress he seeks–the reinstatement of his 9 DACA status.4 Petitioner’s DACA status, when issued, was valid for two years, until July 10 2020, and would have expired before he filed this action. He does not set forth any 11 allegations or claims that, but for USCIS’s decision, he would have valid DACA status or 12 would be eligible to renew his status now. Therefore, even if the Court determined that the 13 termination of Petitioner’s DACA status was unconstitutional or in violation of the APA, 14 reversal of that decision would not lead to the restoration of his status, making his claimed 15 injury not redressable by this Court. 16 In so far as Petitioner seeks to enjoin his removal by ICE and appears to claim that 17 he should not have been placed in removal proceedings before his DACA status had been 18 terminated (see Doc. 1 ¶¶ 79-88), his claim arises from Respondents’ decision or action to 19 commence removal proceedings and to execute his removal, which is barred by 8 U.S.C. 20 § 1252(g). See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 , 485 21 (1999) (“Section 1252(g) seems clearly designed to give some measure of protection to ‘no 22 deferred action’ decisions and similar discretionary determinations”); Garcia-Herrera v. 23 Asher, 585 Fed. App’x 439, 440 (9th Cir. 2014) (concluding that challenge to “ICE’s 24 decision not to delay [] removal pending the adjudication of [the petitioner’s] application [25] 26 4 A party invoking federal jurisdiction bears the burden of demonstrating standing for each claim alleged and for each form of relief sought. Davis v. FEC, 554 U.S. 724 , 734 27 (2008). To establish Article III standing, a the party “must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a 28 likelihood that the injury will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149 , 157-58 (2014) (quotation marks and brackets omitted). 1 for relief under DACA” was barred from review under § 1252(g)); Balogun v. Sessions, [2] 330 F. Supp. 3d 1211, 1217 (C.D. Cal. 2018) (finding § 1252(g) bar could not be avoided 3 “by describing [the] claim as an attack on ICE’s failure to follow its internal guidance”); 4 cf. Department of Homeland Security v. Regents of the University of California, 591 U.S. 5 ___, 140 S. Ct. 1891, 1907 (2020) (finding § 1252(g) did not bar challenge to the rescission 6 of the DACA program itself because it was “not a decision to ‘commence proceedings,’ 7 much less to ‘adjudicate’ a case or ‘execute’ a removal order”); Inland Empire-Immigrant 8 Youth Collective v. Nielsen, No. 5:17-cv-02048-PSG-SHK, 2018 WL 4998230 , at *12 9 (C.D. Cal. Apr. 19, 2018) (“Plaintiffs challenge neither the issuance of NTAs nor the 10 [DHS’s] decisions to commence removal proceedings, review of which would indeed be 11 barred by § 1252(g).”). 12 C. Ground Four – Bond Appeal 13 Lastly, Petitioner claims that in granting him release on bond, “the IJ properly 14 considered [his] criminal history” and the “determination that [he was] neither dangerous 15 nor a sufficient flight risk to deny bond [was] plausible” and based “on the totality of the 16 evidence presented by both parties.” (Doc. 1 ¶¶ 102-103.) He argues that on appeal of that 17 decision, “the BIA substituted its own reading of the evidence for that of the IJ without 18 applying the deference required by the clear error standard of review” (id. ¶ 104), and by 19 “[e]ngaging in its own fact finding as to [Petitioner’s] rehabilitation the BIA committed an 20 error of law under the BIA’s own regulations and violate[d] due process” (id. ¶ 107). 21 Petitioner’s challenge to the BIA’s bond appeal decision fails to present a colorable 22 claim of constitutional or legal error. “Although the BIA may not engage in de novo 23 factfinding and may only review the IJ’s findings under the clearly erroneous standard, the 24 BIA may review ‘legal questions, discretion, and judgment ... de novo.’” Perez-Palafox v. 25 Holder, 744 F.3d 1138, 1145 (9th Cir. 2014) (quoting 8 C.F.R. § 1003.1 (d)(3)(ii))). In this 26 instance, the BIA stated the standard of review, identified each of the IJ’s factual findings 27 concerning his criminal record that it found to be clearly erroneous, explained the reasons 28 for finding clear error, and then determined that the facts, when assessed against the 1 relevant factors, led to the conclusion that Petitioner had not met his burden to show that 2 he was not a danger to the community. “The relative weight of [the petitioner’s] 3 rehabilitation in the balancing process is not ‘factfinding’ subject to the clearly erroneous 4 standard of review; it is a matter of discretion and judgment and is subject to de novo 5 review by the BIA.” Guevara v. Gonzales, 472 F.3d 972, 975 (7th Cir. 2007); see also 6 Matter of Siniauskas, 27 I. & N. Dec. 207, 207 (BIA 2018) (“An alien in a custody 7 determination under . . . 8 U.S.C. § 1226 (a), must establish to the satisfaction of the 8 Immigration Judge and the Board that he or she does not present a danger . . .” (emphasis 9 added)). 10 Petitioner does not dispute the BIA’s clear error findings concerning his criminal 11 record and does not argue that the factors considered could not support the BIA’s 12 determination as a matter of law,5 nor does he contend he was prevented from presenting 13 his case or otherwise denied some specific due process right during his proceedings. 14 Rather, he argues that the BIA improperly rejected the IJ’s determination that the evidence 15 of Petitioner’s rehabilitation outweighed his criminal history. Thus, although framed as an 16 alleged due process violation and question of law, his claim ultimately challenges the 17 discretionary weighing of the evidence and decision by the BIA, which does not present a 18 colorable claim for habeas corpus review. See Vilchiz-Soto v. Holder, 688 F.3d 642 , 644 19 (9th Cir. 2012) (“abuse of discretion challenges recast as alleged due process violations do 20 not present sufficiently colorable constitutional questions”); Mendez-Castro v. Mukasey, [21] 552 F.3d 975 , 980–81 (9th Cir. 2009) (finding challenge to a discretionary determination 22 that would require the court to reweigh the facts and implicated the “value judgment” of 23 the person or entity deciding the issue was merely “an attempt to ‘cloak [] an abuse of 24 discretion argument’ in the garb of a question of law” (citations omitted)); Wallace v. [25] 26 5 Cf. Singh, 638 F.3d at 1206 (“The Guerra factor most pertinent to assessing dangerousness directs immigration judges to consider ‘the alien’s criminal record, 27 including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.’” (quoting Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 28 2006))). 1 Gonzales, 463 F.3d 135 , 140–41 (2d Cir. 2006) (dismissing “an ‘abuse of discretion’ claim 2 disguised as a question of law” which alleged the BIA engaged in impermissible 3 factfinding in determining “the IJ erred in finding adequate evidence of rehabilitation 4 which would outweigh the negative criminal history”). 5 Accordingly, finding Petitioner has failed to state cognizable or colorable grounds 6 for relief, the Court will dismiss the Petition and deny the motion for injunctive relief as 7 moot. See Munaf, 553 U.S. at 692 (where a detainee’s claims do not state grounds upon 8 which habeas corpus relief may be granted, the petition should be promptly dismissed, and 9 no injunction should be entered). Because the Petition may possibly be amended to state 10 a claim, the Court will dismiss the Petition with leave to file an amended petition that cures 11 the deficiencies outlined above.6 12 IT IS ORDERED: 13 (1) Petitioner’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and 14 Complaint for Injunctive and Declaratory Relief (Doc. 1) is dismissed without prejudice, 15 with leave to amend. Petitioner shall have 30 days from the date this Order is filed to file 16 an amended petition. 17 (2) The Clerk of Court shall enter a judgment of dismissal without prejudice of 18 this action, without further notice to Petitioner, if Petitioner fails to file an amended petition 19 within 30 days from the filing date of this Order and deny any pending unrelated motions 20 as moot. 21 (3) Petitioner’s Motion for Preliminary Injunction (Doc. 2) is denied as moot. 22 . . . . [24] 6 Petitioner is advised that an amended petition may not incorporate any part of the 25 original petition by reference, including any attached supporting materials. An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 26 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the previous petition is treated as nonexistent. Ferdik, 963 F.2d 27 at 1262 . Thus, any ground for relief that was raised in the previous petition and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in 28 the amended petition. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 1 (4) Petitioner must immediately file a “Notice of Change in Status” with the 2| Clerk of Court upon any material change in Petitioner’s custody or immigration status. Any request for relief must be made by separate motion and may not be included in the 4| Notice. 5 Dated this 21st day of January, 2021. [6] ' James A. Teilborg ? Senior United States District Judge