Masood v. Barr

          ORDER RE PETITION FOR HABEAS CORPUS RE: DKT. NO. 1

          JAMES DONATO UNITED PLATES DISTRICT JUDGE

         Habeas petitioner Ady Masood has been held in a county jail since April 10, 2019, while pursuing an application for asylum in the United States. Dkt. No. 1. Masood seeks a custody hearing before an immigration judge, which he has not been afforded during his lengthy detention. The federal respondents filed a return to the petition on behalf of the Attorney General, Acting Secretary of Homeland Security, and Acting Field Director of the San Francisco Immigration and Customs Enforcement (ICE) Field Office. Dkt. No. 8.^[1] Masood filed a traverse. Dkt. No. 13. Neither side called for a hearing, and the Court determined that the matter was appropriate for resolution without oral argument. Dkt. No. 16; Civil L.R. 7-1(b).

         The petition is granted on the first claim for a due process violation under the Fifth Amendment of the United States Constitution. The government is ordered to release Masood from custody or, within 28 days of the date of this order, provide him with a custody hearing before an immigration judge. If the immigration judge has not issued a decision on the hearing within 14 days of the custody hearing, Masood must be released from detention.

         BACKGROUND

         The parties do not dispute the salient facts. Masood is 30 years old and a native of Saudi Arabia. Dkt. No. 1 at 4. He moved at a young age to the West Bank area in Israel. Id. He is deemed to be stateless by the United States. Id. at 1.

         In April 2019, Masood arrived at the San Francisco International Airport and immediately sought asylum. Id. The asylum application is based on Masood's allegations of persecution and harassment in the West Bank for his political and religious views. Id. at 5. He is a professed atheist who has left the Muslim faith, which Masood says incited death threats against him as an “infidel.” Id. He was also labeled a “traitor” after trying unsuccessfully to enlist in the United States military. Id. The enlistment attempt occurred in 2016 when Masood entered the United States on a valid B1 visa. Id. Masood experienced some minor legal difficulties during this visit but applied for and was granted a voluntary departure from the United States. Id.; Dkt. No. 8 at 3-4.

         During ICE intake in April 2019, Masood reported several incidents of violence and threats to his life. Dkt. No. 1 at 5. An asylum officer determined that he had a credible fear of persecution were he to be deported. Id. at 6. Even so, an immigration judge denied his asylum application in August 2019 and ordered him removed to Israel or Jordan. Id. Masood has challenged the deportation order on multiple grounds before the Bureau of Immigration Appeals, and the appeal appears to be pending. Id. at 7-8. Masood has also requested a remand of the deportation proceedings based on allegations of ineffective assistance of counsel by his prior lawyer. Id. at 8.

         Masood has been detained by ICE in the Yuba County Jail since April 10, 2019. Id. at 4. The government imposed custody under 8 U.S.C. § 1225(b)(1)(B)(ii) (“Section 1225(b)”), which allows for the detention of aliens with a credible fear of persecution pending further consideration of their asylum applications. In September 2019, Masood filed a parole request to be released to the home of a United States citizen who had agreed to sponsor him, but ICE declined the request with a slew of entirely conclusory statements, some of which Masood alleges were simply wrong as a matter of fact. Dkt. No. 1 at 7. A subsequent parole request in November 2019 was met with a summary denial that did not reflect any consideration of evidence submitted by Masood. Dkt. No. 13 at 14-15. To date, Masood has been in jail for nearly nine months.

         Masood's habeas petition under 28 U.S.C. § 2241 presents several claims, all of which seek the same relief: an individualized custody hearing before a neutral decisionmaker, or, in the alternative, immediate release from custody. The first claim is that his detention without a hearing violates the Fifth Amendment's Due Process Clause. Dkt. No. 1 at 13-14. The Court finds that Masood is entitled to a custody hearing before an immigration judge, and the other claims are reserved for another day as warranted by developments in the case.

         DISCUSSION

         I. JURISDICTION AND VENUE

         Because Masood is in custody in Yuba County, which is outside the boundaries of this district, jurisdiction and venue warrant a brief discussion. The Court has jurisdiction under 28 U.S.C. §§ 1331, 2241 to consider constitutional challenges to Masood's continued detention under 8 U.S.C. § 1225(b). See Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491 (2001) (“§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.”); Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (“[I]t is clear we have jurisdiction over petitioners' claims, as does the district court.”). The federal officer respondents do not contend otherwise, or challenge the Court's subject matter jurisdiction in any way.

         With respect to personal jurisdiction and venue, Masood alleges that his legal custodian, the Acting Field Director of the San Francisco ICE Field Office, is found in this district, and that most of the material events occurred here. Dkt. No. 1 at 2. The relief ordered by the Court will be directed to the San Francisco ICE office. Personal jurisdiction and venue have been demonstrated in this district, and respondents again do not argue for any other result.

         II. ...