Sibomana v. Larose

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 LEWIS ABDUL KALIM SIBOMANA, Case No.: 3:22-cv-933-LL-NLS 13 Plaintiff, ORDER GRANTING IN PART AND 14 v. DENYING IN PART THE PETITION FOR WRIT OF HABEAS CORPUS 15 CHRISTOPHER J. LAROSE AND DENYING THE MOTION TO 16 Defendant. EXPEDITE [17] [ECF Nos. 1, 13] [19] 20 On June 23, 2022, Petitioner Lewis Abdul Kalim Sibomana (“Petitioner”) (Alien 21 Registration No. A-200179618), a federal immigration detainee in the custody of the 22 Department of Homeland Security (“DHS”), Bureau of Immigration and Customs 23 Enforcement (“ICE”) at the Otay Mesa Detention Center in San Diego, California, 24 proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 . 25 ECF No. 1 (the “Petition”). On August 8, 2022, Respondent Christopher J. LaRose 26 (“Respondent”) filed a return in opposition, ECF No. 8 (the “Return”); he also filed an 27 amended return the next day, which clarified that Petitioner did not have a pending bond 28 appeal. ECF No. 10 (the “Amended Return”). Petitioner filed a reply petition on August 1 26, 2022. ECF No. 11 (the “Reply”). In addition, on November 7, 2022, Petitioner filed a 2 motion to expedite the adjudication of his habeas petition. ECF No. 13. (the “Motion to 3 Expedite”). 4 For the reasons set forth below, the Petition is GRANTED IN PART and DENIED 5 IN PART, and the Motion to Expedite is DENIED as MOOT. 6 I. BACKGROUND 7 Petitioner is a native and citizen of Rwanda. ECF No. 10-1 at 2. He was admitted to 8 the United States in September 2011 on a student visa. Id. In February 2012, he filed an 9 application for asylum. Id. at 9 . The DHS did not consider the application and, instead, 10 served him with a Notice to Appear (“NTA”) for his removal proceedings. Id. 11 On July 5, 2018, Petitioner appeared with counsel before an immigration judge (“IJ”) 12 for his initial hearing. ECF No. 10-1 at 9. Petitioner conceded his removability and the 13 service of the NTA. Id. Petitioner then informed the IJ that he would seek asylum, 14 withholding of removal, and protection under the Convention Against Torture (“CAT”). [15] Id. at 10 . The IJ set Petitioner’s case for a merits hearing. Id. But before the hearing took 16 place, Petitioner was convicted of a felony in California. ECF No. 10 at 2. 17 He was arrested in January 2020 and charged with three counts: (1) violation of 18 California Penal Code (“CPC”) section 286(f)(1), sodomy of an unconscious or asleep 19 victim; (2) violation of CPC section 287(f)(1), oral copulation of an unconscious or asleep 20 victim; and (3) violation of CPC section 243(e)(1), battery on a spouse, cohabitant, fiancé, 21 boyfriend, girlfriend, or child’s parent. ECF No. 10-1 at 60–62. After three alleged victims 22 testified in the preliminary hearing, the court changed the section 243(e)(1) count to a 23 section 243.4(e)(1) count, for sexual battery, and added a fourth count under CPC section 24 288(c)(1), sexual assault of a minor. Id. at 50 . Petitioner entered into a plea bargain and 25 pled no contest to the section 286(f)(1) count; the government dropped the other three 26 counts. Id. at 54, 56 . Petitioner was convicted and sentenced to three years imprisonment, 27 but also given time-served and good-time credits. Id. at 54–55. [28] 1 On August 8, 2021, he was released from state custody. ECF No. 1 ¶ 7. The 2 following month, ICE took him into federal custody pending his removal proceedings. [3] Id. ¶ 11 . In March 2022, an IJ conducted a merits hearing and denied Petitioner’s claims 4 for asylum, withholding, and CAT protection. ECF No. 10-1 at 6. The IJ found that the 5 section 286(f)(1) conviction constituted an aggravated felony and a particularly serious 6 crime, that Petitioner did not testify credibly, and that Petitioner failed to establish his 7 eligibility for deferral of removal under the CAT. Id. at 13–14, 22, 24. 8 In April 2022, Petitioner appealed the ruling to the Board of Immigration Appeals 9 (“BIA”). ECF No. 1 ¶ 11. He also filed a motion with the BIA to extend his briefing time 10 because his paid counsel was being replaced by a pro bono counsel. ECF No. 11 at 2. That 11 motion appears to be still pending. ECF No. 10 at 3. 12 In June 2022, an IJ denied Petitioner’s request for a bond hearing on the basis that 13 the immigration court lacked jurisdiction under § 236(c) of the Immigration and 14 Nationality Act (“INA”), 8 U.S.C. § 1226 (c). ECF No. 10-1 at 66. Thereafter, Petitioner 15 filed the instant habeas petition challenging his detention and the denial of the bond 16 hearing. ECF No. 1. 17 Petitioner argues that a prolonged detention without a bond hearing violates the Due 18 Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth 19 Amendment. ECF No. 1 ¶ 13. As such, he requests that the Court issue a writ of habeas 20 corpus ordering his immediate release or, in the alternative, ordering release within seven 21 days unless Respondent schedules a bond hearing. Id. ¶ 15 . 22 In opposition, Respondent argues that (1) this Court lacks jurisdiction to review the 23 IJ’s removal order as it was based on Petitioner’s conviction of an aggravated felony; (2) 24 the Court should refuse judicial review because Petitioner failed to administratively 25 exhaust the denial of his bond hearing; (3) the IJ correctly determined that Petitioner’s 26 conviction constituted an aggravated felony; (4) the month-long gap between Petitioner’s 27 state custody and federal custody does not preclude the application of 8 U.S.C. § 1226 (c); [28] 1 and (5) Petitioner’s federal custody has not been unconstitutionally prolonged. ECF No. 10 2 at 3–6. 3 II. LEGAL STANDARD 4 “Section 1226(c) . . . carves out a class of aliens for whom detention is mandatory. 5 This includes individuals who have committed certain enumerated offenses or who have 6 been involved in drug trafficking or terrorist activities. ICE may only release a person 7 detained pursuant to this provision if necessary for witness protection purposes. . . . 8 [Section] 1226(c) on its face offers no opportunity for release on bond.” Rodriguez Diaz v. 9 Garland, 53 F.4th 1189 , 1197 (9th Cir. 2022) (citing 8 U.S.C. § 1226 (c)). 10 In Jennings v. Rodriguez, the Supreme Court held that a noncitizen detained under 11 § 1226(c) has no statutory right to a bond hearing. 138 S. Ct. 830, 848 (2018). But the 12 Court declined to determine whether a noncitizen would be entitled to bond hearings as a 13 constitutional matter and, thus, remanded the case to the Ninth Circuit “to consider [the] 14 constitutional arguments on their merits.” Id. at 851 . The circuit court, in turn, remanded 15 the question to the district court, though it noted it had “grave doubts that any statute that 16 allows for arbitrary prolonged detention without any process is constitutional or that those 17 who founded our democracy precisely to protect against the arbitrary deprivation of liberty 18 would have thought so.” Rodriguez v. Marin, 909 F.3d 252 , 255–56 (9th Cir. 2018). 19 After Jennings, “it remains undetermined whether the Due Process Clause requires 20 additional bond procedures under any immigration detention statute.” Rodriguez Diaz, 21 53 F.4th at 1201 (emphasis in original); see also Avilez v. Garland, 48 F.4th 915 , 927 (9th 22 Cir. 2022) (declining to determine whether due process required a bond hearing for a 23 noncitizen detained under § 1226(c) and remanding the question to the district court to 24 decide in the first instance). 25 In the absence of the Supreme Court’s or the Ninth Circuit’s clear position on this 26 issue, “district courts throughout this circuit have ordered immigration courts to conduct 27 bond hearings for noncitizens held for prolonged periods under § 1226(c). . . . According 28 to one such court order, the prolonged mandatory detention pending removal proceedings, 1 without a bond hearing, will—at some point—violate the right to due process.” Martinez 2 v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (internal quotation marks and citation 3 omitted); see also, e.g., Lopez v. Garland, 1:22-CV-0531-SAB-HC, 2022 WL 4586413 , 4 at *1 (E.D. Cal. Sept. 29, 2022) (hearing ordered after one-year detention); Doe v. Garland, 5 3:22-CV-03759-JD, 2023 WL 1934509 , at *1 (N.D. Cal. Jan. 10, 2023) (18 months); 6 Yagao v. Figueroa, 17-CV-2224-AJB-MDD, 2019 WL 1429582 , at *1 (S.D. Cal. Mar. 29, 7 2019) (42 months). 8 III. DISCUSSION 9 A. Habeas Jurisdiction 10 As an initial matter, this Court disagrees with Respondent that “the crux” of 11 Petitioner’s habeas challenge is the IJ’s aggravated felony ruling. See ECF No. 10 at 3. 12 Instead, Petitioner claims that “[p]rolonged detention without a hearing on danger or flight 13 risks violates the [D]ue [P]rocess [C]lause of the [F]ifth [A]mendment and the [E]ight[h] 14 [A]mendment[‘s] [E]xcessive [B]ail [C]lause.” ECF No. 1 ¶ 13. Thus, the habeas petition 15 seeks not to challenge the merits of the IJ’s removal order, but rather the constitutionality 16 of the pre-removal detention. 17 “[T]he general rule is that even post-REAL ID Act, aliens may continue to bring 18 collateral legal challenges to the Attorney General's detention authority through a petition 19 for habeas corpus.” Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) (internal 20 alterations, quotation marks, and citation omitted); see also Lopez-Marroquin v. Barr, 955 21 F.3d 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to 22 consider habeas challenges to immigration detention that are sufficiently independent of 23 the merits of the removal order.”). Petitioner’s challenge to confinement does not involve 24 a final order of removal. Accordingly, this Court has jurisdiction under 28 U.S.C. § 2241 . 25 B. Administrative Exhaustion 26 Respondent also argues that the Court should deny the Petition on prudential grounds 27 because Petitioner has not pursued an administrative appeal of the IJ’s denial of the bond 28 hearing. ECF No. 10 at 4. “[U]nder § 2241, exhaustion is a prudential rather than 1 jurisdictional requirement.” Singh, 638 F.3d at 1203 n.3. Nonetheless, “[w]hen a petitioner 2 does not exhaust administrative remedies, a district court ordinarily should either dismiss 3 the petition without prejudice or stay the proceedings until the petitioner has exhausted 4 remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th 5 Cir. 2011). For instance, exhaustion may be excused where the “pursuit of administrative 6 remedies would be a futile gesture.” Laing v. Ashcroft, 370 F.3d 994, 1001 (9th Cir. 2004). 7 Here, the Court finds any administrative appeal would be futile given the BIA’s 8 previous decisions that an IJ has no jurisdiction to grant a bond hearing for aliens detained 9 under INA § 236(c). See Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007); In Re: Armando 10 Andres Velazquez Mendoza, AXXX XX3 331 – HOU, 2018 WL 2761443 , at *1 (BIA 11 Mar. 23 , 2018) (“Where an alien is subject to mandatory detention under section 236(c) of 12 the Act, an Immigration Judge does not have jurisdiction to set a bond.”). There is no reason 13 to believe that the result would change if Petitioner were to present his challenge to the 14 BIA first, meanwhile months could be lost in the process. As such, the Court concludes 15 that exhaustion has been excused. 16 C. Due Process Clause 17 In the Ninth Circuit, district courts have taken various approaches to determine 18 whether due process requires a bond hearing in any particular § 1226(c) detention case. 19 See, e.g., Rodriguez v. Nielsen, 18-CV-04187-TSH, 2019 WL 7491555 , at *6 (N.D. Cal. 20 Jan. 7, 2019) (applying a bright-line rule that “detention becomes prolonged after six 21 months and entitles [a detainee] to a bond hearing”); Henriquez v. Garland, 5:22-CV22 00869-EJD, 2022 WL 2132919 , at *5 (N.D. Cal. June 14, 2022) (eschewing a bright-line 23 rule and applying instead the factors from Mathews v. Eldridge, 424 U.S. 319 (1976)); 24 Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (using an eight25 factor test to determine when detention becomes unconstitutional); Lopez, 2022 WL 26 4586413, at *6 (creating a new three-factor test). 27 Recently, one court in the Southern District of California has applied the Lopez 28 three-factor test in making this determination. See Sanchez-Rivera v. Matuszewski, 22-CV1 1357-MMA (JLB), 2023 WL 139801 , at *6 (S.D. Cal. Jan. 9, 2023). This Court agrees 2 with Judge Anello’s analysis in Sanchez-Rivera that the Lopez test is the most applicable 3 to habeas petitions of noncitizens detained under § 1226(c) seeking an initial bond hearing.1 4 Accordingly, the Court will consider (1) the total length of Petitioner’s detention to date; 5 (2) the likely duration of future detention; and (3) delays in the removal proceedings caused 6 by Petitioner and the government. See Lopez, 2022 WL 4586413 , at *6. 7 First, Petitioner has been in immigration detention since September 2021: over 8 nineteen months ago. “In general, as detention continues past a year, courts become 9 extremely wary of permitting continued custody absent a bond hearing.” Gonzalez v. 10 Bonnar, 18-CV-05321-JSC, 2019 WL 330906 , at *3 (N.D. Cal. Jan. 25, 2019) (internal 11 alteration, quotation marks, and citation omitted). As Petitioner’s detention has continued 12 for well over a year, the Court finds this factor weighs in Petitioner’s favor. 13 Second, Petitioner’s motion for an extension of time to file his opening brief with 14 the BIA has been pending since June 2022. There is currently no indication as to when the 15 BIA will rule on the motion, and if it is granted, how long it will take for the BIA to rule 16 on the appeal. Moreover, Petitioner has stated that even if his appeal is dismissed, he will 17 seek judicial review with the Ninth Circuit. ECF No. 11 at 6. As such, detention may 18 continue for months, if not years, into the future. The Court finds that the pending [21] 22 1 The Court agrees that “[w]hile the Mathews factors may be well-suited to determining 23 whether due process requires a second bond hearing, they are not particularly dispositive of whether prolonged mandatory detention has become unreasonable in a particular case.” [24] Djelassi v. ICE Field Office Dir., 434 F.Supp.3d 917 , 920 (W.D. Wash. 2020). As for the 25 eight-factor test, “the conditions of detention, the likelihood that the removal proceedings will result in a final order of removal, whether the detention will exceed the time the [26] petitioner spent in prison for the crime that made him removable, and the nature of the 27 crimes the petitioner committed are not particularly suited to assisting the Court in determining whether detention has become unreasonable and due process requires a bond [28] 1 administrative appeal and the potential judicial review process will be sufficiently lengthy 2 such that this factor weighs in Petitioner’s favor. 3 Third, notwithstanding Respondent’s argument that “considerable delay is 4 attributable to Petitioner, who has failed to meet the deadline for filing his appellate brief 5 before the BIA,” the Court finds that the delay is partly attributable to the prolonged period 6 in which Petitioner’s request for a briefing extension has been before the BIA. In May 7 2022, Petitioner’s former attorney filed a motion to withdraw and a motion for extension 8 of time to file an opening brief. ECF No. 10-1 at 68. It appears that the BIA granted the 9 former in June 2022 but has not ruled on the latter. Accordingly, the Court finds that this 10 factor is neutral. 11 Overall, both the length of detention to date, “which is the most important factor,” 12 Banda, 385 F. Supp. 3d at 1118 , and the likely duration of future detention weigh in 13 Petitioner’s favor. The delay factor is neutral. Therefore, the Court finds that Petitioner's 14 continued detention has become unreasonable and, thus, due process requires that he 15 receives an initial bond hearing. 16 D. Excessive Bail Clause 17 Petitioner also claims that his continued detention without a bond hearing violates 18 the Eighth Amendment's Excessive Bail Clause. ECF No. 1 ¶ 13. Neither Petitioner nor 19 Respondent addresses this claim in their briefing. See generally ECF Nos. 1, 10. 20 The Eighth Amendment states, “Excessive bail shall not be required . . . .” U.S. 21 Const. Amend. VIII. The Excessive Bail Clause does not “accord a right to bail in all cases, 22 but merely [provides] that bail shall not be excessive in those cases where it is proper to 23 grant bail.” Carlson v. Landon, 342 U.S. 524, 545 (1952); see also Leader v. Blackman, [24] 744 F. Supp. 500, 509 (S.D.N.Y. 1990) (“It is well settled that bail may be denied under 25 many circumstances, including deportation cases, without violating any constitutional 26 rights.”). Petitioner cites no authority establishing that bail must be granted to him under 27 the Eighth Amendment. Accordingly, his Eighth Amendment claim fails. [28] E. Remedy 2 As noted above, Petitioner requests an order securing his immediate release, or in 3 alternative, release within seven days unless Respondent schedules a bond hearing. 4 ||ECF No. 1 § 15. Petitioner provides no authority to support his claim that he is entitled to 5 ||an order of release. Therefore, the Court finds, consistent with other post-Jennings cases, 6 || that the appropriate remedy is an initial bond hearing before an immigration judge. See, 7 \|e.g., Sanchez-Rivera, 2023 WL 139801 , at *7; Lopez, 2022 WL 4586413 , at *9; cf. 8 || Martinez, 36 F.4th at 1224 (affirming a district court’s order to the IJ to provide a 9 || noncitizen detained under § 1226(c) an initial bond hearing). 10 Additionally, at the bond hearing, the government shall bear the burden to prove by 11 |/clear and convincing evidence that Petitioner presents a flight risk or a danger to the 12 ||}community. See Martinez, 36 F.4th at 1230-31 . 13 IV. CONCLUSION 14 The Petition is GRANTED IN PART and DENIED IN PART. The Petition is 15 |}GRANTED as to Petitioner's due process claim and request for a bond hearing. 16 || Accordingly, within thirty (30) days of the date of service of this order, Respondent shall 17 || provide Petitioner with an individualized bond hearing before an immigration judge. The 18 || Petition is DENIED in all other respects. 19 In light of the ruling above, the Motion to Expedite is DENIED as MOOT. 20 IT IS SO ORDERED. 21 Dated: April 20, 2023 NO 22 QF | 3 Honorable Linda Lopez 54 United States District Judge