United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS RE:
DKT. NO. 1
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.
Jazmin Rivas Avalos is currently in the custody of U.S.
Immigration and Customs Enforcement (“ICE”)
pending the conclusion of her removal proceedings. On April
18, 2018, Ms. Rivas Avalos filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2243 in which she
asks the Court to order her release from custody or to order
a bond hearing before an Immigration Judge
(“IJ”). Dkt. No. 1 (“Petition”).
reviewed the completed briefing, the Court finds this matter
suitable for resolution without a hearing. Civ. L.R. 7-1(b).
For the following reasons, the petition is
Rivas Avalos is a Mexican citizen who has lived in the United
States for 28 years. Petition ¶ 10; Dkt. No. 10-1, Ex.
A. In early 2015, Ms. Rivas Avalos pleaded guilty to domestic
abuse, Penal Code 273.5(a). Dkt. No. 10-1, Exs. A, C, F. Ms.
Rivas Avalos was taken into ICE custody on December 11, 2017
as a result of her 2015 conviction. Dkt. No. 10 ¶ 7. Due
in part to delays arising from Ms. Rivas Avalos's
selection of new counsel, a merits hearing before an IJ to
determine her removal status has been set for June 25, 2018,
which will be approximately six and a half months after Ms.
Rivas Avalos was initially detained by ICE. Dkt. No. 10
PETITION FOR WRIT OF HABEAS CORPUS
Detention of Non-Citizens Under § 1226(c)
provisions within the Immigration and Nationality Act govern
the detention of non-citizens awaiting removal from the
United States. The parties do not dispute that Ms. Rivas
Avalos is being detained under section 1226(c). Petition
¶ 15; Dkt. No. 9 (“Return”) at 1-3; Dkt. No.
11 (“Traverse”) at 1-2. Section 1226(c) mandates
that the Department of Homeland Security detain non-citizens
who have been convicted of certain offenses. 8 U.S.C. §
1226(c). Non-citizens detained under 1226(c) may only be
released if such a release “is necessary to provide
protection to a witness…[or] a person cooperating with
an investigation into major criminal activity… and the
[non-citizen] will not pose a danger to the safety of other
persons or of property and is likely to appear for any
scheduled proceeding.” 8 U.S.C. § 1226(c)(2). Ms.
Rivas Avalos does not claim to be subject to this exception.
Supreme Court recently held in Jennings v. Rodriguez
that “§ 1226(c) makes clear that detention of
[non-citizens] within its scope must continue
pending a decision on whether the [non-citizen] is to be
removed from the United States.” Jennings v.
Rodriguez, 138 S.Ct. 830, 846 (2018) (internal quotation
marks omitted). Jennings did not create new law on
this issue. As applied to section 1226(c), Jennings
is consistent with Zadvydas v. Davis, 533 U.S. 678
(2001), on which Ms. Rivas Avalos premises her petition.
Zadvydas applies specifically to indefinite
detention and not to “detention pending a determination
of removability, ” which has a defined termination
point. See Zadvydas, 533 U.S. at 697; Traverse at 2
(acknowledging that Zadvydas “specifically
addresses indefinite detention.”).
also cites to Casas-Castrillon v. Dep't of Homeland
Sec., 535 F.3d 942 (9th Cir. 2008) for the proposition
that detention under section 1226(c) is limited to removal
proceedings that are “expeditious.” Traverse at
2. In Casas, the court considered the seven-year
detention of a permanent resident first under section 1226(c)
during his initial removal proceedings, and then under
section 1226(a) while he appealed the order of removal.
Casas, 535 F.3d at 944-48. The court explained that
non-citizens “detained under § 1226(c) are not
given a bond hearing before an IJ, ” and, applying
Demore v. Kim, 538 U.S. 510 (2003), reasoned that
section 1226(c) “authorize[s] mandatory detention only
for the ‘limited period of [the noncitizen's]
removal proceedings.'” Casas, 535 F.3d at
946, 950 (quoting Demore, 538 U.S. at 530). The
court thus concluded that section 1226(c)'s mandatory
detention “was intended to apply for only a limited
time” and ends when the BIA affirms an order of
removal. Id. at 948.
Tijani v. Willis, also cited by Petitioner, the
Ninth Circuit noted that the constitutionality of detaining a
lawful permanent resident under section 1226(c) for over 32
months was “doubtful.” Tijani v. Willis,
430 F.3d 1241, 1242 (9th Cir. 2005). However, the court
avoided deciding the constitutional issue by interpreting
“the authority conferred by § 1226(c) as applying
to expedited removal of criminal
[non-citizens].” Id. (emphasis added). The
court, finding that “[t]wo years and eight months of
process is not expeditious, ” remanded and directed the
lower court to grant habeas relief unless the government
provided a bond hearing before an immigration judge within
sixty days. Id.
Application to Ms. Rivas Avalos
Rivas Avalos's detention is not indefinite. One way or
another, her section 1226(c) detention is scheduled to end
following the June 25, 2018 hearing, placing her firmly
within the mandatory detention period described in
Jennings, Zadvydas, and Casas.
See Jennings, 138 S.Ct. at 846; Zadvydas,
533 U.S. at 697; Casas, 535 F.3d at
Further, Ms. Rivas Avalos's period of detention has not
yet become so prolonged as to implicate the concern
articulated in Tijani (even assuming Tijani
remains controlling law post-Jennings). Ms. Rivas
Avalos is correct to note that the multiple continuances she
has sought do not deprive her of her constitutional right to
due process. See Traverse at 1; Manley v.
Delmonte, No. 17-CV-953, 2018 WL 2155890, at *2
(W.D.N.Y. May 10, 2018) (noting that “petitioner should
[not] be punished or blamed for seeking additional review of
administrative and judicial decisions.”). The Court
does, however, consider Ms. Rivas Avalos's own delay in
evaluating the length of her detention. See Id. at
2-3 (noting that delay caused by petitioner's litigation
strategy “does not ...