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Singh v. Barr

United States District Court, S.D. California

August 30, 2019

WILLIAM BARR, United States Attorney General; KEVIN MCALEENAN, Acting Secretary of Homeland Security; GREGORY J. ARCHAMBEAULT, Field Office Director for Detention and Removal, U.S. Immigration and Customs Enforcement; JOHN RATHMAN, Imperial Regional Detention Facility; DEPARTMENT OF HOMELAND SECURITY, [1] Respondents.


          Hon. Gonzalo P. Curiel, United States District Judge

         Petitioner Manpreet Singh, an Indian national, appears before the Court on a petition for writ of habeas corpus, 28 U.S.C. § 2241. Mr. Singh has been detained by Immigration and Customs Enforcement (“ICE”), a division of the United States Department of Homeland Security (“DHS”), since February 23, 2018. Mr. Singh's petition contends that his detention has exceeded the statutory limits, cannot be justified without a further, constitutionally-adequate bond determination, and is so prolonged that it has violated his due process rights. The matter is fully briefed. (ECF Nos. 6, 7.)

         I. Background

         A. Factual Background

         Mr. Singh is a 23 year old Sikh man who was born in India's Punjab Province. (ECF No. 1, at 6.) While in India, Mr. Singh was politically-active and worked for the Mann party. Mr. Singh indicates he was targeted and attacked by individuals of a rivaling party which sought to recruit him, and that he left for the United States to seek asylum on that basis. (Id.)

         On February 10, 2018, Mr. Singh “entered the United States without inspection, about one-half mile west of the Calexico port of entry.” (ECF No. 6, at 2.) He was apprehended and placed in expedited removal proceedings. (Id.) On February 23, 2018, Mr. Singh was placed in detention pursuant to 8 U.S.C. § 1226(a), or Section 236(a) of the Immigration and Nationality Act (“INA”). (ECF No. 1, at 3.) During this time, Mr. Singh was referred for a credible fear determination, which he passed. (ECF No. 6, at 3, ECF No. 6-1, at 9.)

         On July 9, 2018, an Immigration Judge (“IJ”) conducted a custody determination hearing wherein the IJ concluded that Mr. Singh was not eligible for release because he was an “extreme” flight risk. (ECF No. 6-1, at 21.) The IJ later memorialized his findings in an August 14, 2018 Bond Memorandum. (ECF No. 6-1, at 23-26.) In the Bond Memorandum, the IJ explained that a custodial alien proceeding under section 236(a) of the INA “must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to persons or property, is not a threat to national security, and does not pose a risk of flight.” (Id. (citing Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), Matter of Guerra, 24 I&N Dec. 37, 40-41 (BIA 2006).)

         The IJ found that Mr. Singh, a high school graduate with no criminal background or prior immigration violations, presented no danger to persons or national security. Meanwhile, the record shows that Mr. Singh gave evidence of a family friend who would sponsor him in Texas while he awaited the outcome of his asylum application. However, Mr. Singh was unable to provide a valid passport, however, since his passport was confiscated by the Mexican authorities when he traveled through the country en route to seek asylum in the United States. Attempts by Mr. Singh's family to retrieve the passport through the Mexican consulate prior to the bond hearing proved unavailing, and Mr. Singh sought to “corroborate his identity by providing his income tax card, voter identification card, and driver's license.” (Id. at 24.)

         At the proceeding, the government questioned why Mr. Singh applied for asylum in the United States where he had no family, suggesting that he might have instead traveled to Greece, where his father lived. Mr. Singh indicated that his father did not have lawful status in Greece, that he had never traveled to Greece, and that in any event, he had not seen his father since approximately 2001, several years before the latter left India. The IJ concluded that Mr. Singh was an “extreme flight risk, ” given his nonresponsive demeanor and unsatisfactory responses to being questioned about why he chose to come to the United States. (Id. at 25.)

         Finding that “the respondent did not meet his burden to show that he has sufficient equities to mitigate his significant flight risk, ” the IJ denied bond. Id. Mr. Singh appealed the IJ's custody determination to the BIA.

         On August 21, 2018, an IJ held a hearing on Mr. Singh's claim for asylum, his application for withholding of removal, and request for relief under the Convention Against Torture. (ECF No. 6, at 3.) That hearing resulted in negative determinations for Mr. Singh; as a consequence, Mr. Singh was ordered removed back to India. Mr. Singh appealed the asylum determination on September 13, 2018, and on January 18, 2019, the BIA affirmed the IJ's removal order. (Id.) On February 19, 2019, Mr. Singh appealed the BIA's decision to the Ninth Circuit. See Manpreet Singh v. William Barr, Ninth Circuit Docket No. 18-70409.

         Mr. Singh remains in custody pending the litigation over his asylum claim. Since his July 9, 2018 bond redetermination, Mr. Singh has not received a subsequent bond redetermination. His appeal of the July 9, 2018 bond determination was denied by the BIA by way of an order issued October 11, 2018. (ECF No. 1, at 2; ECF No. 6-1, at 31.)

         B. Procedural Background

         Mr. Singh filed the instant habeas petition on December 5, 2018. The government submitted a traverse on February 11, 2019, and Mr. Singh filed a reply on February 24, 2019. During this entire time, Mr. Singh has remained in immigration detention.

         Mr. Singh argues that he is detained under 8 U.S.C. § 1226(a), and that the particular facts of his detention render it unlawful both as a matter of statute and of Constitutional law. First, Mr. Singh asserts that he has been subjected to prolonged detention in contravention of the “basic purpose” of 8 U.S.C. § 1226(a), which is limited to “assuring the alien's presence at removal, ” and that his detention is therefore not authorized by any statute. Zadvydas v. Davis, 533 U.S. 678, 699 (2001). The length of his detention, according to Mr. Singh, also contravenes the Fifth Amendment's Due Process guarantee. Third, he argues that his prior bond determinations were arbitrary and capricious because the agency used the wrong legal standards. Finally, Mr. Singh contends that prolonged detentions without additional bond redetermination hearings violates due process.

         Mr. Singh requests, as a remedy, an order which would order his immediate release from custody. In the alternative, he requests a hearing before this Court, “an immigration judge, or another neutral adjudicator at which Respondents will bear the burden to prove that Petitioners' continued detention remains justified.” (ECF No. 1, at 16.) Mr. Singh also requests attorney's fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the event he prevails.

         The government, in its traverse, argues that Mr. Singh's detention is authorized not by 8 U.S.C. § 1226(a), but rather by 8 U.S.C. § 1231(a). It further contends that Mr. Singh has failed to exhaust administrative remedies, that the Court lacks habeas jurisdiction, and that he has no right to another bond redetermination under either detention scheme.

         II. Statutory Basis for Detention

         As a preliminary matter, the Court must address the statutory basis for Mr. Singh's present detention.

         The parties dispute whether the government's authority to detain Mr. Singh derives from § 1226(a), under which the Attorney General has the discretionary authority to detain an alien “pending a decision on whether the alien is to be removed from the United States, ” or § 1231(a)(2) and (a)(6), under which the Attorney General has the authority to detain aliens “during” and “beyond” their “removal period.” This distinction is one with an acute difference: “Where an alien falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057-58 (9th Cir. 2008).

         The parties agree that § 1226(a) provided the statutory authority for Mr. Singh's initial detention in February of 2018. However, the government posits that the basis for detention shifted over to § 1231(a)(2) on January 18, 2019, when the BIA affirmed and made administratively final the IJ's removal order. (ECF No. 6, at 2.)[2] Mr. Singh counters that the pendency of his appeal of the BIA decision to the Ninth Circuit (and the concurrently-filed request for a stay of removal), places his detention back within the § 1226(a) framework. (ECF No. 7, at 5.)

         The Ninth Circuit has given the instant debate thorough treatment in Prieto-Romero. There, the Court noted that Section 1231(a) authorizes detention in only two circumstances: “[d]uring the removal period, ” where detention is mandatory, see § 1231(a)(2), and “beyond the removal period, ” where the Attorney General “may” detain an alien who falls within one of the three categories specified by statute. See § 1231(a)(6). The “removal period” itself ordinarily lasts 90 days, but does not begin until the latest of the following:

         (i) The date the order of removal becomes administratively final.

         (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.

         § 1231(a)(1)(B) (emphasis added). “The statute makes clear that when a court of appeals issues a stay of removal pending its decision on an alien's petition for review of his removal order, the removal period begins only after the court denies the petition and withdraws the stay of removal.” Prieto-Romero, 534 F.3d at 1059.

         As the Court noted, however, the statutory text does not specifically opine on the instant situation, where the alien has requested judicial review, but no final order has issued. See Id. at 1059 n.5 (“[T]he time between an alien's filing of a petition for review and [the Court of Appeals] issuance of a stay of removal falls within a lacuna in the statutory text.”). Notwithstanding this “inartful[] draft[ing], ” the Ninth Circuit determined that the “more sensible reading of the statute is that if an alien files a timely petition for review and requests a stay, the removal period does not begin until the court of appeals (1) denies the motion for a stay or (2) grants the motion and finally denies the petition for review.” Id., see also Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004) (explaining that the Ninth Circuit would vacate a stay of removal only upon issuance of mandate because the “‘finality of an appellate order hinges on the mandate'”). Thus, petitioners detained awaiting a court of appeals' determination are deemed in custody pursuant to § 1226(a).

         As of this writing, the Ninth Circuit has neither denied Mr. Singh's motion for stay nor his petition for review. Accordingly, the § 1231(a) removal period has not yet begun, and Mr. Singh's detention must be justified, if at all, under § 1226(a).

         III. Detention Pursuant to § 1226(a)

         Section 1226 provides the framework for the arrest, detention, and release of non-citizens, such as Mr. Singh, who are in removal proceedings. 8 U.S.C. § 1226. Section 1226(a) grants the Attorney General discretionary authority to determine whether a noncitizen should be detained, released on bond, or released on conditional parole pending the completion of removal proceedings, unless the noncitizen falls within one of the categories of criminals described in § 1226(c), for whom detention is mandatory.

         When a noncitizen is arrested and taken into immigration custody pursuant to § 1226(a), ICE makes an initial custody determination, including the setting of bond. See 8 C.F.R. § 236.1(c)(8). After the initial custody determination, the detainee may request a bond redetermination by an IJ. 8 C.F.R. § 236(d)(1). For each subsequent bond redetermination, an alien's request may be considered “only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). The IJ's bond decision is appealable to the BIA, 8 C.F.R. § 1003.19(f).

         IV. Exhaustion of Administrative Remedies

         The government argues at the outset that the Court should not entertain the petition because Mr. Singh did not exhaust his administrative remedies. Specifically, the government notes that Mr. Singh never sought to move for a subsequent bond redetermination after his July 9, 2018 denial.

         “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). However, administrative exhaustion by those seeking relief under § 2241 is a prudential, not jurisdictional, prerequisite in the Ninth Circuit, and can thus be waived. Trinidad v. Sessions, No. 3:17-CV-06877-JD, WL 2010618, at *1 (N.D. Cal. Apr. 30, 2018). Futility is one of the grounds for waiver. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004). An action is futile if the BIA's view is “already set” or the outcome is “very likely.” El Rescate Legal Servs., Inc. ...

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