United States District Court, S.D. California
ORDER GRANTING HABEAS PETITION [ECF NO. 1.]
Gonzalo P. Curiel, United States District Judge
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.)
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.
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.)
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).)
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.)
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.)
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.
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.
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.)
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.
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.
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.
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
Statutory Basis for Detention
preliminary matter, the Court must address the statutory
basis for Mr. Singh's present detention.
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
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.) 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.)
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:
date the order of removal becomes administratively final.
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.
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).
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).
Detention Pursuant to § 1226(a)
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.
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.
Exhaustion of Administrative Remedies
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.
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.”
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