I. INTRODUCTION
This matter comes before the court on the report and recommendation of United States Magistrate Judge Mary Alice Theiler (R&R (Dkt. # 14)), and Respondents' objections thereto (Objections (Dkt. # 15)).
II. STANDARD OF REVIEW
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."
III. DISCUSSION
Pursuant to
Respondents have not provided Petitioner with a hearing where they must justify his continued detention. (See R&R at 7.) In her report and recommendation to this court, Magistrate Judge Theiler concluded that such continued detention without the opportunity for an individualized hearing before a neutral decision-maker where Respondents bear the burden of justifying Petitioner's continued detention violates the Fifth Amendment to the United States Constitution. (See id at 10-23.) Respondents timely filed objections to Magistrate Judge Theiler's report and recommendation. (See generally Objections.) The court now considers Respondents' objections and in doing so reviews Magistrate Judge Theiler's report and recommendation de novo.
A. Petitioner's Due Process Right to a Bond Hearing
In their first objection, Respondents assert that "[b]oth the Supreme Court and the Ninth Circuit have recognized that Section 235(b) [
Further, Magistrate Judge Theiler also correctly found that "unreasonably prolonged detention under § 1225(b) without a bond hearing violates due process." (R&R at 16.) Since the Supreme Court's decision in Jennings , the Ninth Circuit has expressed "grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government's arbitrary deprivation of liberty would have thought so." Rodriguez v. Marin ,
B. The Test for Determining Whether Petitioner's Detention Violates Due Process
Next, Respondents object to the test Magistrate Judge Theiler employed to determine whether Petitioner's detention violates due process. (Objections at 6-7.) Magistrate Judge Theiler employed a case-specific analysis that considers the following factors: "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings cause by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." (R&R at 16 (quoting Jamal A. v. Whitaker ,
Magistrate Judge Theiler considered applying the three-factor test outline in Mathews , but correctly declined to do so. (See R&R at 18-19.) Courts apply the Mathews test to resolve the question of "whether the administrative procedures provided ... are constitutionally sufficient."
C. Respondents' Standard of Proof
Finally, Respondents object to Magistrate Judge Theiler's recommended ruling that Respondents "must provide clear and convincing evidence to justify [Petitioner's] continued detention." (See R&R at 23; see also Objections at 7.) Respondents attempt to distinguish prior holdings of the Ninth Circuit and this court by pointing out that those cases involved individuals detained under different detention statutes, namely
In Singh , the Ninth Circuit clarified that "the government should be held to a clear and convincing evidence standard of proof" in a bond hearing for a detainee under
IV. CONCLUSION
For the foregoing reasons, the court hereby ORDERS as follows:
(1) The court ADOPTS the report and recommendation (Dkt. # 14) in its entirety;
(2) The court DENIES Respondents' motion to dismiss (Dkt. # 6);
(3) The court GRANTS Petitioner's habeas corpus petition (Dkt. # 1);
(4) Within 30 days of the filing date of this order, the court ORDERS Respondents to provide Petitioner with a bond hearing that complies with the procedural requirements set forth in Singh v. Holder ,
(5) The court DIRECTS the Clerk to send copies of this Order to the parties and to Magistrate Judge Theiler.
REPORT AND RECOMMENDATION
Mary Alice Theiler, United States Magistrate Judge
I. INTRODUCTION
Petitioner, who is currently detained at the Northwest Detention Center in Tacoma, Washington, bring this
Having considered the parties' submissions, the balance of the record, and the governing law, the Court denies petitioner's request for oral argument
II. BACKGROUND
Petitioner is a native and citizen of Malawi. Dkt. 7 at ¶ 3. On September 14, 2017, before coming to the United States, he submitted a nonimmigrant visa application ("DS160") to the U.S. Department of State.
On November 8, 2017, petitioner arrived at the Seattle-Tacoma International Airport and applied for admission to the United States.
During the secondary inspection, the CBPO gave petitioner instructions in English and petitioner indicated his understanding of what was said to him and swore an oath to tell the truth during that interview.
CBP then transferred him to ICE custody at the Northwest Detention Center for proceedings under
On January 9, 2018, petitioner appeared for a master calendar hearing.
On February 20, 2018, a telephonic Nyanja interpreter was provided for petitioner's master calendar hearing. Dkt. 7 at ¶ 13. Chichewa and Nyanja are considered the same language, although there can be some local variants.
While he waited for his April hearing, petitioner requested a bond hearing. Dkt. 7 at ¶ 14; Dkt. 8-11. On March 7, 2018, the IJ denied bond, concluding that she lacked jurisdiction to hold a bond hearing because petitioner is an arriving noncitizen subject to mandatory detention. Dkt. 7 at ¶ 15; Dkt. 8-12. Petitioner waived appeal. Dkt. 8-12.
At the master calendar hearing on April 9, 2018, a Nyanja interpreter was present, and petitioner denied the charges in the NTA. Dkt. 7 at ¶ 16. The U.S. Department of Homeland Security ("DHS") requested a continuance so it could determine whether to amend the NTA, provide additional evidence, or set the case for a contested removal hearing.
At the master calendar hearing on April 24, 2018, a Nyanja interpreter was present. Dkt. 7 at ¶ 17. DHS informed the IJ that it was not going to amend the NTA, and the IJ set the case for a contested removal hearing on May 29, 2018, for the
On May 21, 2018, petitioner filed an application for asylum.
On May 29, 2018, a Chichewa/Nyanja interpreter was not available for petitioner's contested removal hearing. Dkt. 7 at ¶ 20. The IJ had a discussion with petitioner in English about the possibility of proceeding in English, but petitioner chose to continue to proceed in Chichewa.
A Nyanja interpreter was scheduled to appear for the October 31, 2018 hearing, however the interpreter failed to answer the phone after repeated attempts to contact her, and an alternate interpreter was not available.
On February 26, 2019, a translator was present for the merits hearing. Dkt. 12-1 at 4, 11. Petitioner admitted the factual allegations in the NTA and the IJ sustained the charge of removability.
[Petitioner] received twelve years of public education and the evidence in the record establishes that English is the official language in Malawi and that "adequate knowledge of the English language" is a prerequisite for naturalized citizenship-strong circumstantial evidence that the English-language is widely used in Malawi. Exh. 4B at 2, 66. [Petitioner] testified that English is a common language in Malawi and that he lived in South Africa for seven years-a country where English is commonly spoken and where [petitioner] ran his own business. [Petitioner's] visa application was prepared in English and [petitioner] communicated in English during his consular interview in Malawi. See also Exh. 7 at 5 (listing English as a language [petitioner] speaks). Further, although [petitioner] testified that he only spoke in English to the CBP Agent because a translator could not be found, [petitioner] stated that he understood a several paragraph advisal that was read to him in English before a question-and-answer session, and the content of the Form I-867A establishes that [petitioner] fully understood his interview and was able to clearly communicate complex ideas. Exh. 2 at 4 ("Q: Do you understand what I have said to you in the English language? A: Yes I understand."). For example, [petitioner] reacted emotionally when he was confronted with evidence of his fraudulent visa application: "I am very very sad."Id. at 5 . Additionally, [petitioner's] Form I-589 and signed declaration were prepared in English, and he filed complex pro se motions in English, and there is no evidence that any of those documents were translated from English to Chichewa. Exh. 3 at 17 ("The statement above was prepared with help. I have reviewed this statementit is true to the best of my knowledge.") (emphasis added); Exh. 4A ("I have done my best to speak in English, but my English is very limited and I do not feel that I could present my case in anything but my native language Chichewa."). The court also notes that [petitioner] repeatedly answered questions before they were translated from English to Nyanja[ 4 ]-additional circumstantial evidence that [petitioner] was able to fully communicate to the consular officer and CBP Agent in the English-language.
Dkt. 12-1 at 14-16. The IJ thus found that petitioner fully understood his conversations with the consular official who interviewed him regarding his visa application and the CBPO at the airport.
On March 11, 2019, petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Dkt. 13.
Petitioner has remained in detention since his arrest on November 8, 2017-approximately 17 months-and has not had the opportunity to contest his continued detention at a bond hearing.
III. DISCUSSION
The instant habeas petition challenges the constitutionality of petitioner's mandatory detention under the Fifth Amendment's Due Process Clause and the Eighth Amendment's Excessive Bail Clause. The Court begins by explaining the statutory framework for immigration detention and federal courts' interpretation of those statutes, and then turns to the merits of petitioner's Fifth Amendment claim. Finally, the Court addresses the Eighth Amendment claim. As discussed below, the Court concludes that petitioner's continued mandatory detention violates the Fifth Amendment and that he is entitled to a bond hearing; he is not, however, entitled to relief under the Eighth Amendment.
A. Statutory framework for immigration detention
Three statutes govern immigration detention. See
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."
Section 1226 provides the framework for the arrest, detention, and release of noncitizens who are in removal proceedings. 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 removal proceedings, unless the noncitizen falls within one of the categories of criminals described in § 1226(c), for whom detention is mandatory until removal proceedings have concluded.
Section 1231 governs the detention and release of noncitizens who have been ordered removed. During the "removal period," which typically lasts 90 days, detention is mandatory.
To summarize, §§ 1225(b) and 1226(c) mandate detention without a bond hearing until removal proceedings have concluded, even if the detention becomes prolonged. Jennings ,
B. Overview of caselaw interpreting the immigration detention statutes
This case raises the question of whether and if so, when, due process requires a bond hearing for noncitizens subject to mandatory detention under § 1225(b)(1). Neither the Supreme Court nor any Court of Appeals has answered the question, and district courts around the country have taken different approaches. The Court summarizes the relevant caselaw below.
1. Supreme and Circuit Court authority
"[I]n a series of decisions since 2001, the Supreme Court and [Ninth Circuit] have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing." Rodriguez v. Robbins ("Rodriguez III "),
A statute permitting indefinite detention of [a noncitizen] would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person ... of ... liberty ... without due process of law." Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana ,, 80 [ 504 U.S. 71 , 112 S.Ct. 1780 ] (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno , 118 L.Ed.2d 437 , 746 [ 481 U.S. 739 , 107 S.Ct. 2095 ] (1987), or, in certain special and "narrow" nonpunitive "circumstances," Foucha, 95 L.Ed.2d 697 supra , at 80 [], where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint." Kansas v. Hendricks , 112 S.Ct. 1780 , 356 [ 521 U.S. 346 , 117 S.Ct. 2072 ] (1997). 138 L.Ed.2d 501
Next, in Demore v. Kim ,
Since Zadvydas and Demore , the Ninth Circuit has recognized that prolonged immigration detention without adequate procedural protections would raise "serious constitutional concerns." Casas-Castrillon v. Dep't of Homeland Sec. ,
The other circuit courts that addressed prolonged mandatory detention under § 1226(c) also "recognized that the Due Process Clause imposed some form of 'reasonableness' limitation upon the duration of detention that can be considered justifiable under that statute," and each circuit "read an implicit reasonableness requirement into the statute itself, generally based on the doctrine of constitutional avoidance." Reid v. Donelan ,
In Jennings , the Supreme Court reversed Rodriguez III , holding that the Ninth Circuit erroneously applied the canon of constitutional avoidance and that the plain text of §§ 1225(b), 1226(a), and 1226(c) unambiguously authorizes detention pending resolution of removal proceedings and does not plausibly suggest a 6-month limitation or periodic bond hearings. Jennings , 138, S. Ct. at 842, 846-47. Rather than considering the parties' constitutional due process arguments, the Court remanded to the Ninth Circuit for further proceedings. Id. at 851-52. The Ninth Circuit, in turn, remanded to the district court to determine "the minimum requirements of due process" for noncitizens
2. Post -Jennings District Court authority
In the wake of Jennings , district courts have grappled with how to address due process challenges to prolonged mandatory detention under § 1225(b). Nearly all district courts that have considered the issue agree that "prolonged mandatory detention pending removal proceedings, without a bond hearing, 'will-at some point-violate the right to due process.' " Bermudez Paiz v. Decker , No. 18-4759,
To analyze whether due process requires a bond hearing in a particular case, most courts take one of two analytical approaches. Some courts rest their decisions predominately on the length of the noncitizen's detention. See Kouadio ,
Other courts engage in a case-specific analysis that involves consideration of several factors derived from Zadvydas , Demore , and the First, Third, Sixth, and Eleventh Circuits' pre- Jennings decisions regarding the reasonableness of prolonged detention under § 1226(c), discussed above. See Jamal ,
C. Petitioner's prolonged detention is unreasonable
Having considered the above authority, the Court joins the vast majority of other district courts to conclude that unreasonably prolonged detention under § 1225(b) without a bond hearing violates due process. This conclusion aligns with the Ninth Circuit's recent pronouncement in Rodriguez IV that it has "grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional,"
The question, then, is how the Court should determine whether a noncitizen's prolonged mandatory detention has become unreasonable. Petitioner asks the Court to adopt a bright-line rule that detention becomes unreasonably prolonged at six months. Dkt. 1 at ¶ 56; Dkt. 9 at 10. Citing Zadvydas , petitioner asserts, " Jennings did nothing to overrule the constitutional presumption that detention following six months is unconstitutional and requires the government to justify continued detention." Dkt. 9 at 8. Petitioner misreads Zadvydas . Zadvydas did not establish a constitutional presumption that detention longer than six months is unconstitutional. Rather, the Supreme Court established that at six months, a § 1231(a)(6) detainee could be released if he or she came forward with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," at which time the government would be required to rebut that showing. Zadvydas ,
Alternatively, petitioner advocates for a case-specific analysis similar to what other district courts have adopted. Dkt. 1 at ¶ 58; Dkt. 9 at 10. The Government does not address the multi-factor approach, outlined above, and instead bases its analysis on Mathews v. Eldridge ,
While the Mathews factors may be well-suited to determining whether due process requires a second bond hearing, they are not particularly probative of whether prolonged mandatory detention has become unreasonable in a particular case. Accordingly, the Court declines to apply the Mathews factors in this case. Instead, the Court adopts the multi-factor test that many other courts have relied upon to determine whether § 1225(b) detention has become unreasonable. To reiterate, the Court considers "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." Jamal ,
First, the Court considers the length of detention, which is the most important factor. E.g. ,
Second, the Court considers how long the detention is likely to continue absent judicial intervention; in other words, the "anticipated duration of all removal proceedings-including administrative and judicial appeals." Jamal ,
Third, the Court considers the conditions of the detention facility where the petitioner is detained.
Fourth, the Court considers the nature and extent of any delays in the removal proceedings that petitioner caused.
"It is long-settled that a competent translation is fundamental to a full and fair hearing. If [a noncitizen] does not speak English, deportation proceedings must be translated into a language the [noncitizen] understands." Perez-Lastor ,
Fifth, the Court considers the nature and extent of any delays in the removal proceedings caused by the government. Jamal ,
Finally, the Court considers "the likelihood that the final proceedings will culminate in a final order of removal." Jamal ,
In sum, four of the six factors weigh in favor of granting petitioner a bond hearing, and two factors are neutral. The Court thus concludes that petitioner's continued mandatory detention under § 1225(b) has become unreasonable and that due process requires the Government to provide him with a bond hearing.
D. Petitioner's bond hearing must comply with established procedural requirements
Petitioner contends that at his bond hearing, the Government must provide clear and convincing evidence to justify his continued detention. Dkt. 9 at 13-15. The Court agrees. "To detain a noncitizen for a prolonged period of time while removal proceedings are pending, due process requires the government to show by clear and convincing evidence that the detainee presents a flight risk or a danger to the community at the time of the bond hearing."
E. Petitioner is not entitled to relief under the Eighth Amendment
Petitioner claims that his continued detention without a bond hearing violates the Eighth Amendment's excessive bail clause. Dkt. 1 at ¶¶ 78-81. He alleges that the Government's categorical denial of bail to certain noncitizens violates the Eighth Amendment. Id. at ¶ 80. As noted above, the parties did not address this claim in their briefing.
The Eighth Amendment states, "Excessive bail shall not be required ...." U.S. Const. Amend. VIII. The Excessive Bail Clause does not "accord a right to bail in all cases, but merely [provides] that bail shall not be excessive in those cases where it is proper to grant bail." Carlson v. Landon ,
IV. CONCLUSION
The Court recommends that the Government's motion to dismiss, Dkt. 6, be DENIED, petitioner's habeas petition, Dkt. 1, be GRANTED, and the Government be ordered to provide petitioner with an individualized bond hearing that complies with the requirements set forth in Singh v. Holder ,
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on April 26, 2019.
Dated this 10th day of April, 2019.
Notes
The parties have thoroughly briefed the issues and oral argument would not be of assistance to the Court. See Partridge v. Reich ,
Immigration proceedings involve two types of hearings. Master calendar hearings address scheduling, pleadings, and other administrative matters, while individual calendar hearings, also referred to as merits hearings, concern the merits of a noncitizen's application for relief from removal. See Imm. Ct. Prac. Manual §§ 4.15-4.16.
In his unverified habeas petition, petitioner claims that he had difficulty understanding the Nyanja interpreter during the April 9, 2018, and April 24, 2018 hearings. Dkt. 1 at ¶¶ 34-35. Petitioner does not submit a declaration or affidavit attesting to these statements.
[IJ Footnote 2] Chichewa and Nyanja are dialects of the same language: Chichewa is spoken in Malawi, while Nyanja is spoken in Zambia. The court's translator explained that she had not have [sic] any difficulty communicating with [petitioner] in Nyanja on February 26, 2019. [Petitioner] likewise indicated at the conclusion of the hearing that he understood the Nyanja interpreter.
Applicants for admission are also referred to as "arriving" noncitizens.
Although the relevant statutory sections refer to the Attorney General, the Homeland Security Act of 2002, Pub. L. No. 107-296 § 471,
The Honorable Marsha J. Pechman recently issued an order granting bond hearings for certain asylum seekers detained under § 1226(a), finding evidence that the government regularly delayed providing these detainees with their requested hearings. See Padilla v. U.S. Imm. & Customs Enforcement , No. 18-928,
It appears that Jennings abrogated Ly 's reliance on the canon of constitutional avoidance to construe § 1226(c) ; however, courts citing Ly post-Jennings have not so recognized. See, e.g. , Sajous v. Decker , No. 18-2447,
But see Poonjani v. Shanahan ,