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Preap v. Johnson

United States District Court, N.D. California

May 15, 2014

JEH JOHNSON, Secretary, United States Department of Homeland Security, Defendants-Respondents Et al.,



Plaintiffs-Petitioners Mony Preap, Eduardo Vega Padilla, and Juan Lozano Magdaleno ("Petitioners") bring this immigration habeas corpus class action against Jeh Johnson, Secretary of the United States Department of Homeland Security, et al. (the "Government") and challenge their detention without bond under Section 236(c) of the Immigration and Nationality Act ("INA"), Title 8 U.S.C. § 1226(c) ("Section 1226(c)"). In subsection (a) of the same statute, the INA affords individuals a bond hearing in order to be detained pending removal proceedings. In contrast, Section 1226(c) requires mandatory detention pending removal proceedings for a specifically defined subset of individuals. Petitioners argue that they do not fall within the category defined in Section 1226(c), and therefore cannot be subject to mandatory detention. They seek injunctive and declaratory relief that they, and members of the class, must be afforded a bond hearing so that an immigration judge can determine whether they should be released during the pendency of their removal proceedings.

Now before the Court are three motions: (1) Petitioners' Motion for Preliminary Injunction (Dkt. No. 23); (2) the Government's Motion to Dismiss (Dkt. No. 24); and (3) Petitioners' Motion for Class Certification (Dkt. No. 8). On March 18, 2014, the Court heard oral argument on these motions and on April 1, 2014, the parties provided supplemental briefing. (Dkt. Nos. 45, 46, 47.) The parties concede that the first two motions - Plaintiff's Motion for Preliminary Injunction and Defendant's Motion to Dismiss - center on a pure issue of statutory interpretation; granting one motion necessarily requires denial of the other. Thus, the Court begins with that purely legal issue and will then address the Motion for Class Certification.

Having carefully considered the parties' arguments, relevant statutes, case law, and for all the reasons stated herein, the Court finds that Section 1226(c) unambiguously requires mandatory detention for individuals who are detained immediately upon release from custody. Thus, as Petitioners do not fall within that category, the Court GRANTS Petitioners' Motions for Preliminary Injunction and DENIES the Government's Motion to Dismiss. The Court also GRANTS Petitioners' Motion for Class Certification, as the class action mechanism easily and efficiently establishes the right of all class members to a bond hearing pursuant to Section 1226(a).


Federal district courts may grant writs of habeas corpus if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Though some immigration decisions, including bond determinations, are not subject to judicial review, see, e.g., 8 U.S.C. § 1226(e), courts may hear the habeas petitions of immigration detainees raising "constitutional claims or questions of law." Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (citations omitted). Here, Petitioners argue that the Government's practice of subjecting them, and members of the class, to mandatory detention pursuant to Section 1226(c) is unauthorized by the language of the statute itself. Thus, Petitioners present a pure question of law. The Government does not contest the Court's jurisdiction to hear the case.[1]


The factual predicate giving rise to this action stems from the Immigration and Customs Enforcement Agency's ("ICE") treatment of each of the three Petitioners in this action. Each Petitioner was convicted of a crime enumerated in Section 1226(c), and thereafter charged with removal from the United States and detained by ICE. It is undisputed that the predicate offenses for which Petitioners were detained are offenses enumerated in Section 1226(c)(1)(A)-(D). However, ICE's detention of each Petitioner did not commence at the time each Petitioner was released from custody. Rather, ICE detained Mr. Preap seven years after his relevant misdemeanor convictions; Mr. Padilla, over ten years after his relevant convictions; and Mr. Magdaleno over five years later. Because the Government determined that each petitioner could be detained pursuant to Section 1226(c), none was afforded a bond hearing. The ultimate issue is not whether the Government can detain Petitioners pending such proceedings - Petitioners contend that such detention is proper if evidence adduced at a bond hearing establishes that they present a risk of flight or public danger. Rather, the ultimate issue for resolution is whether the Government was statutorily authorized under Section 1226(c) to detain Petitioners mandatorily and without a regularly-scheduled bond hearing.


Petitioner Mony Preap is thirty-two years old. (Dkt. No. 8, Ex. A ("Preap Decl.") ¶ 2.) He was born in a refugee camp and is a native of Cambodia. ( Id. ) Preap entered the United States as an infant in 1981 and is a lawful permanent resident. ( Id. ) He is a single father to his son, who is a United States citizen, and a caretaker for his mother, who is in remission from cancer and suffers from seizures. ( Id. ¶ 4.)

In 2006, Preap was convicted of two misdemeanor counts of possession of marijuana in violation of California Health and Safety Code section 11357(a) and sentenced to time served. ( Id. ¶ 7; Dkt. No. 26, Ex. 28 ("Preap DHS Record") at 3.) In 2013, Preap was arrested for inflicting corporal injury on a spouse in violation of California Penal Code section 273.5. (Preap Decl. ¶ 7; Preap DHS Record at 3.) On September 9, 2013, Preap pleaded guilty to battery in violation of California Penal Code section 242 and was sentenced to ninety days of incarceration in the Sonoma County Detention Facility. (Dkt. No. 26, Ex. 27.)

On September 11, 2013, upon his release from the Sonoma County Detention Facility, ICE officers arrested and charged Preap with being removable as a result of his 2006 misdemeanor convictions for possession of marijuana. (Preap Decl. ¶ 3; Preap DHS Record.) Preap was detained at an ICE detention facility pending removal proceedings. (Preap Decl. ¶ 3.) On December 9, 2013, Preap requested a bond hearing, which was denied on December 10, 2013. (Preap Decl. ¶ 6.) While Preap was initially found to be removable as charged, on December 17, 2013, after three months of detention and after the filing of this action, an immigration judge granted Preap a Cancellation of Removal. (Mot. to Dismiss at 3; Dkt. No. 26, Ex. 29.) The Government did not oppose the grant of cancellation of removal and waived its right of appeal.[2] ( See Dkt. No. 26, Ex. 29.)


Petitioner Eduardo Vega Padilla is forty-eight years old. (Dkt. No. 8, Ex. B ("Padilla Decl.") ¶ 2.) He came to the United States in 1966 from Mexico when he was sixteen months old and became a lawful permanent resident that same year. ( Id. ) Padilla has five children, all of whom are United States citizens. ( Id. ¶ 3.) He also has six grandchildren and three siblings who are also United States citizens and live in the Sacramento area. ( Id. ) Prior to detention, Padilla lived with his mother, his daughter, and his grandson. ( Id. )

In 1997, Padilla was convicted for possession of a controlled substance (methamphetamine), a misdemeanor, in violation of California Health and Safety Code section 11377(a). ( Id. ¶ 7; Dkt. No. 26, Ex. 3 ("Padilla Records I.").) Padilla was sentenced to thirty days. (Padilla Records I.) In 2000, Padilla was convicted of felony possession of methamphetamine in violation of California Health and Safety Code section 11377(a) and was sentenced to 180 days of confinement. (Dkt. No. 26, Ex. 4 ("Padilla Records II") at 6.) While on probation for the second offense, police officers searching Padilla's home discovered a firearm in a shed behind his home. (Padilla Decl. ¶ 7.) Padilla was convicted of being a felon in possession of a firearm in violation of California Penal Code section 12021(a)(1) and was sentenced to 180 days in jail. (Padilla Decl. ¶ 7; Dkt. No. 26, Ex. 5 ("Padilla Records III") at 7.) Padilla was released in 2002. (Padilla Decl. ¶ 7.)

Over ten years after Padilla's release from his sentence from the firearms conviction, on August 15, 2013, ICE charged Padilla with being removable from the United States based on his controlled substances and firearm convictions. (Dkt. No. 26, Exs. 9, 10.) ICE agents went to Padilla's home and he turned himself over voluntarily. (Padilla Decl. ¶ 4.) On October 15, 2013, an immigration judge found that Padilla was lawfully detained under Title 8 U.S.C. section 1226(c); thus, he was not eligible for a bond hearing despite the fact that he was not detained upon his release in 2002. (Dkt. No. 26, Ex. 13.)

On December 3, 2013, an immigration judge ordered Padilla removed from the United States under Title 8 U.S.C. section 1227(a)(2)(A)(iii) as an alien convicted of a controlled substance offense. (Dkt. No. 26, Ex. 11.) On December 26, 2013, Padilla appealed the removal order to the Board of Immigration Appeals ("BIA") where it remains pending. (Dkt. No. 26, Ex. 12.) On February 14, 2014, having been held for six months, Padilla became eligible for a bond hearing in accordance with the Ninth Circuit's preliminary injunction in Rodriguez v. Robbins . [3] See Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013) (" Rodriguez II "). On March 7, 2014, Padilla received his six-month Rodriguez hearing and was released on bond. (Dkt. No. 38, Ex. B.)


Petitioner Juan Lozano Magdaleno is a fifty-seven year old native of Mexico. (Dkt. No. 8, Ex. C ("Magdaleno Decl.") ¶ 2.) Magdaleno came to the United States in 1974 and has been a lawful permanent resident for thirty-nine years. ( Id. ) Prior to detention, Magdaleno lived with his wife, two of his four children, his son-in-law, and one of his ten grandchildren, all of whom are United States citizens. ( Id. ¶ 4.)

On October 13, 2000, Magdaleno was convicted as a felon in possession of a firearm in violation of California Penal Code section 12021(a)(1). (Dkt. No. 26, Ex. 16 ("Magdaleno Records").) According to Magdaleno, he earned a living by purchasing storage units at auctions and selling the contents of the units at his thrift store. (Magdaleno Decl. ¶ 9.) Bidders on storage units do not know the contents of the units prior to purchase, and one of the units that Magdaleno purchased contained an old rifle. ( Id. ) When police officers came to Magdaleno's thrift store on an unrelated matter, they arrested him for possessing the rifle. ( Id. ) Magdaleno was sentenced to 147 days of confinement and 3 years of probation. (Magdaleno Records.)

On August 21, 2007, Magdaleno was convicted of driving on a suspended license/driving under the influence in violation of California Vehicle Code section 14601.2(a), a misdemeanor, and possession of a controlled substance (methamphetamine), a felony, in violation of California Health and Safety Code section 11377(a). (Dkt. No. 26, Ex. 18.) He was sentenced to six months of confinement and released in January 2008. ( Id.; Magdaleno Decl. ¶ 10.)

Five years after his release, on July 17, 2013, ICE arrested Magdaleno at his residence and charged him with removal based upon his October 2000 and May 2007 convictions. (Dkt. No. 26, Ex. 22.) Magdaleno was detained that same day at the West County Detention Center in Richmond, California. (Magdaleno Decl. ¶ 3.)

Magdaleno challenged ICE's charges of removability, but the immigration judge denied his application for relief from removal and ordered that he be removed. (Dkt. No. 26, Ex. 24 at 7-8.) On December 26, 2013, Magdaleno appealed the removal to the BIA. (Dkt. No. 26, Ex. 25.) This appeal remains pending. (Mot. to Dismiss at 6; Dkt. No. 34 ("Petitioners' Traverse") at 5.)

On December 9, 2013, Magdaleno requested a bond hearing and challenged his detention before an immigration judge. (Magdaleno Decl. ¶ 3.) That judge found that Magdaleno was lawfully detained under Title 8 U.S.C. section 1226(c) despite not having been detained by ICE upon release from custody and was not due an individualized bond hearing. (Dkt. No. 26, Ex. 23.)

On February 14, 2014, Magdaleno was provided a Rodriguez hearing, and he was denied release due to the determination that he was a flight risk. (Dkt. No. 28 ¶¶ 2, 3.) The immigration judge based this determination in part on the fact that Magdaleno was appealing his removal order. ( Id. ¶ 3.)


The parties agree that resolution of Petitioners' Motion for Preliminary Injunction and Defendant's Motion to Dismiss turns on a question of pure statutory interpretation: what is the meaning of the phrase "when the alien is released" in Section 1226(c)?[4] Accordingly, the Court resolves this question first.[5]


Congress has enacted a multi-layered statutory scheme that provides for civil detention of aliens during removal proceedings. See Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008). Section 1226 is one such provision. Where an alien falls within Section 1226 determines whether his detention is discretionary (as provided in Section 1226(a)) or mandatory (as provided in Section 1226(c)).

Pursuant to Section 1226(a), when an alien is charged with removal, ICE may seek to have that individual detained pending removal proceedings. Section 1226(a) affords the Government discretion to release an individual on his own recognizance or on bond while his removal case is pending if the Government determines that release would not present a risk of flight or a danger to the community. 8 U.S.C. § 1226(a). However, if the alien falls within the category of individuals defined in Section 1226(c), Congress requires mandatory detention while removal proceedings are pending. This case stems from the parties' disagreement on the legal interpretation and application of Section 1226(c), which reads in pertinent part as follows:

(c) Detention of criminal aliens. (1) Custody. The Attorney General shall take into custody any alien who-
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) ["Inadmissible aliens"] of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) ["Multiple criminal convictions"], (A)(iii) ["Aggravated felony"], (B) ["Controlled substances"], (C) ["Certain firearms ...

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