318 F. Supp. 3d 1134
N.D. Cal.2018Background
- Petitioner Alberto Solano Cortez, a 22‑year‑old Mexican national brought to the U.S. as a child, completed a criminal sentence for robbery and was transferred to DHS custody on August 14–15, 2017 and issued a Final Administrative Removal Order.
- After expressing fear of return, an asylum officer found a reasonable fear of torture and referred him to withholding‑only proceedings before an immigration judge; ICE determined he would remain detained during those proceedings.
- Solano has been detained continuously in ICE custody (Yuba County Jail) since August 14, 2017 and, as of the petition, had been detained more than seven months without a bond hearing.
- The IJ denied multiple requests for a bond/custody hearing as not ripe or for lack of jurisdiction; Solano appealed the IJ’s denial to the BIA, but the appeal had not been scheduled when he filed a § 2241 habeas petition and a TRO seeking release or an individualized custody hearing.
- Respondents argued the petition should be dismissed for failure to exhaust administrative remedies and that Solano is not entitled to a bond hearing under current law; Solano argued exhaustion would be futile/inefficacious and that continued detention without a bond hearing violated due process.
- The magistrate judge waived administrative exhaustion, held that under controlling Ninth Circuit precedent Solano (detained under 8 U.S.C. § 1231(a)(6)) is entitled to a bond hearing after six months, and ordered DHS to provide a bond hearing within 15 days where the government must prove by clear and convincing evidence that Solano is a flight risk or danger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Solano must exhaust his BIA appeal before seeking § 2241 relief | Exhaustion is futile/inefficacious because BIA delays would cause irreparable harm and prejudice to his merits case | Habeas petition should be dismissed for failure to exhaust administrative remedies | Waived prudential exhaustion: BIA delay and irreparable harm justified immediate habeas review |
| Whether detainees held under § 1231(a)(6) after six months are entitled to an individualized bond hearing | Solano argues Diouf v. Napolitano entitles him to a bond hearing after six months | Respondents argue Jennings undermines Diouf and Diouf does not apply to withholding‑only detainees subject to final orders | Court held Diouf remains controlling in Ninth Circuit; Solano is entitled to a bond hearing after six months |
| Burden of proof at bond hearing for § 1231(a)(6) detainees | Government must prove by clear and convincing evidence that continued detention is necessary (flight risk or danger) | Respondents contend Jennings eliminated the clear‑and‑convincing requirement | Court held the clear‑and‑convincing standard remains binding Ninth Circuit law (Singh/Diouf/Casas) |
| Immediate release versus bond hearing relief | Solano seeks immediate release if not given hearing | Respondents oppose immediate release without adjudication of risk | Court denied immediate release; ordered timely bond hearing instead |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (construed §1231(a)(6) to forbid indefinite post‑removal detention and identified a six‑month presumptive limit)
- Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (held §1231(a)(6) detainees detained beyond six months are entitled to an individualized bond hearing)
- Casas‑Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008) (held prolonged detention under §1226(a) triggers right to neutral bond hearing)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (held government must prove by clear and convincing evidence at Casas hearings that detainee is flight risk or danger)
- Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (class action on prolonged detention; Ninth Circuit required bond hearings for certain detention subclasses)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (Supreme Court reversed parts of Rodriguez, rejecting implied six‑month limits and some procedural requirements for §§1225/1226 but did not disturb Zadvydas framework for §1231(a)(6))
- Padilla‑Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2018) (held withholding‑only detainees subject to final administrative orders are detained under §1231)