The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) DENYING REQUEST TO DISMISS AS MOOT; and (2) CONDITIONALLY GRANTING PETITION [Doc. No. 1].
Petitioner Glorismel Centeno-Ortiz filed a petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2241 ("Petition"), seeking release from the Department of Homeland Security ("DHS")'s custody and a declaration that his prolonged detention violates the Immigration and Nationality Act ("INA") and the Due Process Clause of the Fifth Amendment. In response to the Court's Order to Show Cause, Respondents filed a return to the Petition, contending that the Petition should be dismissed as moot because Petitioner was already released on parole. Petitioner filed a traverse. For the reasons set forth below, the Court DENIES the request to dismiss the Petition as moot and CONDITIONALLY GRANTS the Petition.
Petitioner is a native and citizen of El Salvador. In 1991, his mother brought him and the rest of her family to the United States illegally, seeking to escape the violence in El Salvador. In 1994, Petitioner's mother petitioned for asylum for him as a derivative beneficiary. Pending adjudication of the asylum petition, Petitioner applied for and received work authorization in 1995. At the same time, Petitioner became entangled in a gang life and, in 1998, was convicted of a second degree burglary. On June 30, 1999, Petitioner was served with a Notice to Appear and placed in removal proceedings based on his criminal conviction. The Immigration Judge ("IJ") before whom Petitioner appeared failed to inform him that his derivative beneficiary asylum application was pending and that he could personally apply for asylum or relief under the Convention Against Torture ("CAT"). Petitioner was subsequently removed to El Salvador.
Fearing for his safety in El Salvador, Petitioner immediately returned to the United States. Once back in the United States, Petitioner dedicated himself to keeping youth around Los Angeles out of gangs and maintained steady employment to support his family, including his United States citizen son. He was re-detained on May 15, 2007, after he left the country for a few hours to enjoy a night out in Tijuana with friends. He was arrested as he sought to return to the United States and was charged with criminal illegal re-entry after deportation. On September 24, 2008, this Court dismissed the criminal charges against Petitioner, finding that the IJ had violated his due process rights during the 1999 deportation proceedings by failing to inform him of his pending derivative asylum application and of his opportunity to apply for asylum and CAT relief. See United States v. Centeno, No. 07-cr-2442 (JAH), Doc. No. 24 (S.D. Cal. Sept. 24, 2008).
Despite the dismissal of the criminal charges against him, Petitioner spent sixteen months in criminal custody. Subsequently, on October 2, 2008, DHS took Petitioner into its custody and instituted removal proceedings against him. DHS charged Petitioner as removable for: (1) having been convicted of an "aggravated felony" with a previous removal order; (2) falsely representing himself to be a United States citizen (a charge that was subsequently dismissed); and (3) not being in possession of a valid entry document. On July 7, 2009, the IJ found Petitioner removable and denied his application for asylum and withholding of removal under CAT. On October 30, 2009, the Board of Immigration Appeals ("BIA") affirmed. On November 30, 2009, Petitioner sought Ninth Circuit review of the removal order. On April 22, 2010, while his petition for review was still pending, the BIA reopened Petitioner's case and remanded to the IJ for reconsideration of whether conditions in El Salvador justified withholding of removal under CAT. On remand, the IJ again denied Petitioner's claim for CAT relief, and, on January 14, 2011, the BIA again affirmed. On January 24, 2011, Petitioner submitted a second petition to the Ninth Circuit.
At the same time as he was seeking Ninth Circuit review, Petitioner also sought to reopen his 1999 deportation proceedings-the ones this Court found to violate due process. On July 5, 2011, the BIA reopened and remanded the proceedings to the IJ for rehearing. On July 6, 2011, and August 10, 2011, upon Government's motion, the Ninth Circuit dismissed both of Petitioner's petitions for review with a citation to Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (court only has jurisdiction to review final orders of removal). (See Centeno v. Holder, Case Nos. 09-73801 & 11-70251 (9th Cir.).) On October 6, 2011, the Ninth Circuit denied Petitioner's motion for reconsideration of the dismissal of his second petition for review.
Throughout this whole time, Petitioner was held in the DHS custody. In a Post Order Custody Review ("POCR") dated April 12, 2011, the Immigration and Customs Enforcement ("ICE") officials determined that Petitioner had to remain in the ICE custody pending his removal because he was a "flight risk" and because the "seriousness" of his 1998 second degree burglary conviction made him a "threat to the community." (Petition, Ex. E.) Three months earlier, however, when Petitioner requested supervised release, the ICE officials responded that he was subject to "mandatory custody." (Id., Ex. F.)
Petitioner's attempts to obtain a bond hearing before an IJ have been unsuccessful. On March 24, 2010, an IJ concluded that he lacked jurisdiction to determine whether Petitioner's detention was justified because Petitioner was an "arriving alien." The BIA affirmed. The BIA concluded that because Petitioner was an "arriving alien," the Ninth Circuit's recent decisions in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), and PrietoRomero v. Clark, 534 F.3d 1053 (9th Cir. 2008), did not apply, and therefore Petitioner was not entitled to a bond hearing before an IJ. (Petition, Ex. G.) On May 4, 2011, a different IJ again denied Petitioner's request for a bond hearing, stating that he was without jurisdiction to release Petitioner from custody. (Id., Ex. H.) On September 13, 2011, the BIA affirmed, holding that "[t]he current regulations governing the detention and release of aliens preclude an Immigration Judge from redetermining the custody status of arriving aliens in removal proceedings." (Gov't Return, Ex. E (citing 8 C.F.R. § 1003.19(h)(2)(i)(B)) [Doc. No. 10-2].) The BIA further held that where the DHS designated an alien as an "arriving alien," "the Immigration Judge is precluded from undertaking a determination as to the propriety of the DHS's designation." (Id. (citing 8 C.F.R. § 1003.19(h)(2)(ii) and Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998)).)
II. Procedural background
Petitioner filed the present Petition on August 26, 2011, raising two legal claims. First, Petitioner seeks a determination that the immigration laws do not authorize his continued detention unless he is provided with a bond hearing before an immigration judge with the power to order his release should the Government fail to prove by clear and convincing evidence that he is either a flight risk or a danger to the community. In the alternative, Petitioner seeks a determination that any immigration law purporting to authorize his continued detention without a bond hearing violates due process. As part of his request for relief, Petitioner ask the Court to "[g]rant the writ of habeas corpus and order Petitioner's immediate release from custody under reasonable conditions of supervision; or in the alternative, order a constitutionally adequate hearing before an immigration judge, at which the immigration judge must release Petitioner unless Defendant-Respondents prove by clear and convincing evidence that Petitioner's continued detention remains justified and that release on bond or other reasonable conditions would not be appropriate." (Petition, at 14.) Petitioner also asks the Court to declare that the Government's three-year-long detention of Petitioner, as well as its failure to provide him with a custody and bond hearing, violates the INA and the Due Process Clause of the Fifth Amendment. (Id.)
Upon the Court's issuance of an Order to Show Cause, Respondent filed a Return to the Petition, arguing that the Petition should be dismissed as moot because Petitioner has since been released from custody and is currently on parole. [Doc No. 10.] Petitioner subsequently ...