The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER GRANTING PETITIONER'S AMENDED PETITION FOR WRIT OF
Pending before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the following reasons, Petitioner's writ of habeas corpus is granted and a conditional writ of habeas corpus is issued.
Petitioner is a native and citizen of the Republic of the Philippines. (First Amended Petition for Writ of Habeas Corpus ("Pet.") at 2.) He was admitted to the United States as a lawful permanent resident in 2004 and is married to a United States citizen with whom he has a son. (Id.) In 2007, Petitioner was convicted of a violation of California Penal Code § 273.5(a) for willful infliction of corporal injury and was sentenced to two years in prison. (Id.) Following completion of the term prescribed by law for his criminal conviction, Petitioner was transferred to Respondents' custody. (Id.) Petitioner was placed in removal proceedings in 2008 and, on December 17, 2008, was ordered removed based upon his conviction for an aggravated felony. (Id.) Petitioner appealed the removal determination to the Board of Immigration Appeals ("BIA"), which affirmed the Immigration Judge's ("IJ") decision without opinion. (Id.; Return Ex. F.) Petitioner then filed a petition for review in the Ninth Circuit Court of Appeals. (Pet. at 3.) The Court of Appeals subsequently issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction. (Id.) However, on August 20, 2009, the Court of Appeals discharged the order to show cause and granted Petitioner a permanent stay of removal. (Id.)
On April 21, 2009, Petitioner filed a motion requesting a bond hearing under Casas-Castrillon v. D.H.S., 535 F.3d 942 (9th Cir. 2008). (Id.) A hearing was held on June 1, 2009 before the IJ who had presided over the removal proceedings. (Id.) The IJ found that Petitioner was not a danger to the community, but that he was a flight risk and denied bond. (Id. at 3, Ex. B at 3-4.) Petitioner appealed the decision denying bond, which the BIA affirmed without opinion. (Id. at 3, Ex. C.) After the Ninth Circuit Court of Appeals discharged the order to show cause on the appeal from the removal determination, Petitioner filed a motion for a second Casas bond hearing. (Id. at 3.) On October 26, 2009, the IJ denied Petitioner's motion on the basis that he had not shown there were any material changes in circumstances warranting a new hearing and found there was sufficient evidence to demonstrate that Petitioner presented a flight risk. (Pet. at 3, Ex. D at 2.) Petitioner appealed the decision, which the BIA affirmed on February 18, 2010. (Pet. at 3, Ex. E.)
On April 26, 2010, Petitioner filed a Petition for Writ of Habeas Corpus with this Court, along with a motion for leave to proceed in forma pauperis and a motion for appointment of counsel. (Docs. 1-3.) On June 9, 2010, the Court granted Petitioner's motion for appointment of counsel. (Doc. 6.) Petitioner was subsequently granted leave to file and did file the instant First Amended Petition for Writ of Habeas Corpus. (Docs. 10-11.) Respondents filed a return and Petitioner filed a traverse. (Docs. 12-13.)
Petitioner argues he is entitled to a writ of habeas corpus because he has been unreasonably detained pending the outcome of his challenges to his removal order and because he received a procedurally deficient bond hearing and is therefore being held in violation of his due process rights. He argues the hearing was constitutionally deficient for four reasons: (1) the IJ failed to articulate and apply the correct standard of proof; (2) the IJ failed to provide appointed counsel; (3) the IJ erroneously applied the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006); and (4) it was error for the IJ to consider information on the merits at the bond hearing. Petitioner further argues he has been denied due process of law by the IJ's arbitrary denial of his request for a new bond hearing and the lack of periodic custody redeterminations. Respondents argue this Court lacks jurisdiction to review Petitioner's claims regarding discretionary determinations made by the IJ and, furthermore, that Petitioner's petition should be denied because he has not shown any cognizable procedural deficiencies in the bond hearing.
As an initial matter, district courts have jurisdiction to address the lawfulness of prolonged detentions of non-citizens under 28 U.S.C. § 2241. See Zadvydas v. Davis, 533 U.S. 678, 686-90 (2001). Respondents argue, however, that this Court lacks jurisdiction to review Petitioner's claims that the IJ erroneously applied the factors set forth in Guerra and that the IJ arbitrarily denied his request for a second custody redetermination because such claims relate to an immigration judge's discretionary determinations, which, pursuant to 8 U.S.C. § 1226(e), are not subject to judicial review. Petitioner argues in response that he is not challenging the discretionary decisions of the IJ, but is rather challenging procedural errors in the bond hearing that constituted violations of his due process rights. Petitioner contends this Court retains jurisdiction over these claims because there is no statute that forecloses judicial review of legal or constitutional error in civil custody matters.
It is well-established that this Court's habeas review of the Attorney General's discretionary authority, as well as that of employees of the Attorney General, is precluded by 8 U.S.C. § 1226(e).*fn1 However, this does not deprive a Court of jurisdiction to determine the legal sufficiency of a petitioner's bond hearing and habeas review is available to claim that discretion was not exercised in accordance with federal law or in a constitutional manner. Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 828 (9th Cir. 2002). To invoke this Court's jurisdiction, "a petitioner must allege at least a colorable constitutional violation. To be colorable in this context, the alleged violation need not be 'substantial,' but the claim 'must have some possible validity.'" Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001)(citations and quotations omitted). Here, Petitioner has stated at least a colorable claim that his constitutional right to due process was violated by the IJ's alleged improper exercise of discretion in considering certain factors not explicitly set forth in Guerra at the bond hearing. Accordingly, the Court has jurisdiction to review such claim here. However, Petitioner has failed to allege a colorable claim that the IJ arbitrarily denied his request for a second custody redetermination because this discretionary determination was clearly made in accordance with federal law. Therefore, the Court does not have jurisdiction to review this claim.
In Casas, the Court held "the prolonged detention of aliens is permissible only where the Attorney General finds such detention individually necessary by providing the alien with an adequate opportunity to contest the necessity of his detention." Casas, 535 F.3d at 951. The Court went on to state: [b]ecause the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be 'constitutionally doubtful,' we hold that § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing. Thus an alien is entitled to release on bond unless the 'government establishes he is a flight risk or will be a danger to the community.'
Id. (citations omitted)(emphasis in original). Casas, however, does not state by what standard the Government must establish that an individual is a flight risk or will be a danger to the community. Here, the IJ did not state the standard of proof to which he was holding the Government in his Memorandum of Bond Decision. (Pet. Ex. B at 3 ("Taking these factors into consideration, I conclude that the DHS has established that the respondent [Dela Cruz] presents a flight risk and will deny his request for release from custody.").) Petitioner argues the appropriate standard is clear and convincing evidence and it is clear from an analysis of the Guerra factors that the IJ did not hold the Government to this standard. Respondents argue ...