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Miguel Angel Fernandez Crespo v. Robin Baker

April 3, 2012

MIGUEL ANGEL FERNANDEZ CRESPO,
PETITIONER,
v.
ROBIN BAKER, FIELD OFFICE DIRECTOR, SAN DIEGO DISTRICT, UNITED STATES BUREAU OF [DOC. NO. 1] IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE); KENNETH SMITH, ASSISTANT FIELD OFFICE DIRECTOR, SAN DIEGO DISTRICT, ICE; JOHN MORTON, ASSISTANT SECRETARY, ICE; JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; AND ERIC HOLDER, UNITED STATES ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART HABEAS PETITION

Petitioner Miguel Angel Fernandez Crespo ("Petitioner") filed a petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2241 ("Petition"), seeking his immediate release from the Department of Homeland Security ("DHS")'s custody under reasonable conditions of supervision, or in the alternative, a constitutionally adequate bond hearing before an Immigration Judge ("IJ"). [Doc. No. 1.] In response to the Court's Order to Show Cause, Respondents filed a return to the Petition, contending that Petitioner's detention is not indefinite and has not been unduly prolonged and that Petitioner is not entitled to a bond hearing. [Doc. No. 10.] On February 9, 2012 Petitioner filed his traverse. [Doc. No. 13.] For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the Petition.

BACKGROUND

I. Factual background

Petitioner is a native and citizen of Cuba and was born in Havana, Cuba in 1965. [Doc. No. 1 ¶ 15.] In 1989, Petitioner became active in El Partido Pro Los Derechos Humanos de Cuba (The Pro-Human Rights Party of Cuba) (hereafter "Human Rights Party"), a political party opposed to the Castro regime. [Id. ¶ 16.] Several months after joining the Human Rights Party, Petitioner met with another anti-Castro group called Grupo Juvenil Por Los Derechos Humanos (Youth Group for Human Rights) (hereafter "Grupo Juvenil") a few times over the course of several months. [Id. ¶ 17.] At one of the meetings, a member of Grupo Juvenil suggested that the group should destroy a public library. [Id. ¶ 18.] Petitioner remarked that that plan would be a bad idea, because the library was a national monument and attacking it would risk injuring people. [Id.] Petitioner told the group that it would be a better idea to destroy a fleet of new tour buses, which would hurt the Castro regime without injuring anyone. [Id.] Petitioner alleges that Grupo Juvenile never took any steps to implement these ideas. [Id.]

In November 1989, Petitioner attempted to escape Cuba for the United States on a makeshift raft, but he was arrested by Cuban authorities. [Doc. No. 1 ¶ 20.] Petitioner was held by the Department of State Security, which handles cases involving political dissidents, and questioned about his involvement with Grupo Juvenil. [Id. ¶¶ 20-21.] Petitioner told the agents that the group had discussed attacking targets, but that they never intended to actually do anything. [Id. ¶ 21.]

On July 20, 1990, Petitioner and nine member of Grupo Juvenil were given a one-day trial before a special court called the "Court for Crimes against National Security." [Doc. No. 1 ¶ 22.] Petitioner states at the trial there was no jury, independent judge, effective assistance of counsel, meaningful right to examine the government's evidence, or ability to confront adverse witnesses. [Id.] At the conclusion of the trial, all of the defendants were summarily found guilty of political offenses and Petitioner was convicted of "terrorism" and sentenced to fifteen years incarceration-enhanced to seventeen years based on his attempt to flee the country. [Id. ¶¶ 22, 26.] While in prison, Petitioner was recognized as a political prisoner by the Vatican, specifically Pope John Paul II, and the United States Agency on International Development. [Id. ¶¶ 28, 31, Ex. C.]

Petitioner was conditionally released from prison around January 2001. [Doc. No. 1 ¶ 32.] Petitioner alleges that after his release he was consistently harassed and threatened by agents of the Castro regime. [Id.] In 2008, Petitioner moved to Sweden, then Spain, and then Mexico. [Id. ¶ 33.] On December 12, 2012, Petitioner arrived at the San Ysidro Port of Entry and requested asylum. [Id. ¶ 34; Doc. No. 10-1, Ex. D.]

A Customs and Border Patrol Officer interviewed Petitioner regarding his asylum claim, and Petitioner admitted that he had been convicted in Cuba for terrorism charges. [Doc. No. 10-1, Ex. E.] Following the interview, the officer determined that Petitioner has expressed a credible fear of returning to Cuba and initiated removal proceeding against Petitioner by issuing a Notice to Appear ("NTA") in Immigration Court. [Id., Ex. F.] The NTA charged Petitioner with removability pursuant to 8 U.S.C. § 1182(a)(7)(i)(I), as an alien who, at the time of application for admission, did not possess a valid immigration visa, re-entry permit, border crossing card or other valid entry document. [Id.] Upon issuance of the NTA, DHS took Petitioner into custody and placed him in the San Diego Correctional Facility, where he currently remains. [Doc. No. 1 ¶ 34.]

On April 5, 2011, Petitioner appeared before an Immigration Judge ("IJ") for the first time with counsel and indicated that he would admit the removeability charges but would also seek relief in the form of asylum, withholding of removal, and deferral of removal pursuant to the Convention Against Torture. [Doc. No. 10-1, Ex. U.] A merits hearing was originally scheduled for May 20, 2011, but it has been continued several times and the hearing has yet to be completed. [Id., Exs. U-Y.]

On November 1, 2011, Petitioner submitted a request to DHS for parole and release from custody. [Doc. No. 10-1, Declaration of Yadira G. Avalos ("Avalos Decl.") ¶ 5.] On November 18, 2011, a DHS officer denied Petitioner's request for parole on the basis that he is a threat to the United States and the community. [Id. ¶ 7, Ex. R.]

II. Procedural background

On December 27, 2011, Petitioner filed the present Petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2241, seeking his immediate release from DHS's custody under reasonable conditions of supervision, or in the alternative, a constitutionally adequate bond hearing before an IJ. [Doc. No. 1 at 20-21.] Petitioner argues that he is entitled to such relief based on four grounds: (1) there is no significant likelihood that he will be removed; (2) DHS's denial of his parole request on the grounds that Petitioner is a danger to the community or national security is facially illegitimate and arbitrary and capricious; (3) his detention environment is excessive in relation to the purposes of his detention, which could be accomplished through less restrictive alternatives; and (4) DHS cannot continue to detain him unless it demonstrates in a bond hearing before a neutral decision maker that he is a flight risk or a danger to the community. [Id. at 3-5, 13-18.] On January 25, 2012, in light of the Petition, the IJ in Petitioner's removal proceedings continued the proceedings until this Court's resolution of the Petition. [Doc. No. 10-1, Norris Decl. ¶ 16.] On January 26, 2012, Respondents filed a return to the Petition, arguing that Petitioner was not entitled to immediate release or a bond hearing. [Doc. No. 10.] On February 9, 2012, Petitioner filed his traverse. [Doc. No. 13.]

DISCUSSION

I. ...


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