Aguilar v. Wolf
| Decision Date | 24 March 2020 |
| Docket Number | No. 1:19-cv-0412 WJ/SMV,1:19-cv-0412 WJ/SMV |
| Citation | 448 F.Supp.3d 1202 |
| Parties | Oscar Alexis GONZALEZ AGUILAR, Petitioner, v. Chad F. WOLF, Matthew T. Albence, William P. Barr, Jose M. Correa, Dean King, and Chad Miller, Respondents. |
| Court | U.S. District Court — District of New Mexico |
Katherine Elizabeth Goettel, Tania P. Linares Garcia, National Immigrant Justice Center, Chicago, IL, Kristin G. Love, Leon F. Howard, III, ACLU of New Mexico, Albuquerque, NM, for Petitioner.
Tiffany L. Walters, U.S. Attorney's Office, Albuquerque, NM, for Respondents.
THIS MATTER is before the Court on the Petition for a Writ of Habeas Corpus (Doc. 1), filed May 3, 2019, by Petitioner Oscar Alexis Gonzalez Aguilar ("Petitioner"). The Court referred this Petition to the Honorable Stephan M. Vidmar, United States Magistrate Judge, for proposed findings and a recommended disposition, on May 8, 2019. (Doc. 3). Having reviewed the Parties’ briefing and considered the applicable law, the Court finds that Petitioner's objections to the Proposed Findings and Recommended Disposition ("PFRD") are OVERRULED , the PFRD is ADOPTED , and the Petition is, therefore, DENIED .
Petitioner is a transgender woman fleeing persecution in her home country of Honduras. (Doc. 1 at 2, 5–6.) She arrived at the U.S. border on or about June 16, 2014, at the age of 17, seeking asylum. Id. at 6; (Doc. 24 at 2.) However, she had no valid entry documents, so the government detained her. (Doc. 24-1 at 2.) In 2014, the government released her from custody on an Order of Release on Recognizance, allowing her to live in the United States while her asylum claim remained pending. Id. Petitioner traveled to Louisiana in 2017, where she was arrested and charged with prostitution and crimes against nature. Id. Louisiana authorities transferred Petitioner to Immigration and Customs Enforcement ("ICE") custody on August 31, 2017. Id. at 3. ICE revoked her Order of Release on Recognizance and detained her under 8 U.S.C. § 1225(b)(2)(A) as an alien seeking admission into the United States. Id.
Petitioner remains in custody. Id. The Department of Homeland Security denied her requests for parole or to be released on her own recognizance. (Doc. 1 at 8–9.) In May of 2018, an immigration judge denied Petitioner's asylum claim and ordered her removed to Honduras. (Doc. 24-1 at 3.) The Board of Immigration Appeals affirmed the denial of her asylum claim and the order of removal. Id.
Petitioner appealed the Board of Immigration Appeals’ decision to the Tenth Circuit. Gonzalez Aguilar v. Barr , No. 18-9570 (10th Cir. filed Nov. 18, 2018). On December 17, 2018, the Tenth Circuit granted her motion to stay her removal, noting that she is likely to succeed on the merits of her appeal. Gonzalez Aguilar , No. 18-9570 (Doc. 010110098599 at 1.) The Tenth Circuit has yet to rule on Petitioner's appeal and she remains detained.
Petitioner filed her Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 in this Court on May 3, 2019. (Doc. 1.) She argued that her continued detention violates the Fifth Amendment's Due Process Clause, which allegedly compels the government either to release her or provide her with an individualized bond hearing to determine whether she presents a flight risk of danger to the community. See id. at 2. Respondents argued that because Petitioner has not been admitted into the United States, she is an arriving alien who has no Fifth Amendment right to release or a bond hearing. (Doc. 24 at 4–7 (citing Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ).) They also argued, inter alia , that her detention does not violate the Fifth Amendment because the government will not detain her indefinitely. Id. at 7–9.
In her Reply, Petitioner advanced two arguments relevant here. First, she argued that courts "routinely [find] that lengthy immigration detention is subject to due[-]process limits." (Doc. 26 at 2.) Second, she argued that the Supreme Court's recent decision in Jennings v. Rodriguez "indicates that the constitutional rights of arriving aliens subject to prolonged detention is a closer question" than Respondents suggested. Id.
The magistrate judge issued his PFRD on November 8, 2019. (Doc. 27.) He recommended that the Court deny the Petition because Petitioner is an arriving alien, and as such, is owed only the procedural due-process protections as required by statute. Id. at 18–19. The magistrate judge began by analyzing the statutory structure applicable to Petitioner. See id. at 4–6. He noted that Petitioner is an arriving alien because she was detained while seeking admission to the United States and has never lawfully been admitted into the United States.4 Id. at 5. The government has detained her under 8 U.S.C. § 1225(b)(2), which mandates the detention of aliens for removal proceedings if an immigration officer determines that the aliens are not entitled to be admitted to the United States. Id. (citing Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 837, 200 L.Ed.2d 122 (2018) ). The magistrate judge explained that though the relevant immigration statutes permit the government to allow arriving aliens within U.S. borders—for example, by using the parole authority to permit an alien to live in the United States for humanitarian reasons—"such aliens are legally considered to be detained at the border and hence as never having effected entry into this country." Id. at 6 (quoting Gisbert v. U.S. Att'y Gen. , 988 F.2d 1437, 1440 (5th Cir. 1993) ). He concluded that no statutory provision compelled Petitioner's release or a bond hearing. Id. (citing Jennings , 138 S. Ct. at 842–46 ).
The magistrate judge then discussed the reach of the Fifth Amendment Due Process Clause. He stated, "The scope of an alien's constitutional rights often depends on her immigration status." Id. at 7. For example, though permanent resident aliens lawfully in the United States have the same due-process rights as U.S. citizens, arriving aliens do not necessarily have all of these rights. Id. at 7–8. He began by analyzing the primary case relied upon by Respondents to argue that Petitioner possesses a limited set of due-process rights: Shaughnessy v. United States ex rel. Mezei . There, an alien attempted to re-enter the United States after having been outside the country for 19 months. 345 U.S. at 208, 73 S.Ct. 625. Upon his return, he was excluded from the United States and detained because his entry would have compromised national security. Id. The United States attempted to remove him, but no other country would accept him; his detention thus became indefinite. Id. at 208–09, 73 S.Ct. 625. Mezei sought habeas relief, but the Supreme Court rejected it, emphasizing his status as an arriving alien. According to the Supreme Court, for an alien "on the threshold of initial entry ... ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’ " Id. at 212, 73 S.Ct. 625 (emphasis added) (quoting United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ). Because the Attorney General declined to release Mezei on bond, and the relevant statutes required nothing more, the Supreme Court found that Mezei's continued exclusion did not deprive him of any statutory or constitutional right. Id. at 212–16, 73 S.Ct. 625.
Next, the magistrate judge discussed the Tenth Circuit's treatment of Mezei . (Doc. 27 at 9–13.) First, in Rodriguez-Fernandez v. Wilkinson , the Tenth Circuit granted an arriving alien's petition for a writ of habeas corpus. There, immigration officials determined that an arriving alien, Rodriguez-Fernandez, was not entitled to enter the United States and detained him under § 1225(b). 654 F.2d 1382, 1384 (10th Cir. 1981). Because his home country of Cuba would not accept him, his detention became indefinite. See id. at 1384, 1389. Rodriguez-Fernandez petitioned the court for his release. See id. at 1385. The government argued that, under Mezei , Rodriguez-Fernandez's status as an arriving alien required that he be given only the process as outlined in the relevant immigration statutes. See id.
The Tenth Circuit construed the applicable statutes to require Rodriguez-Fernandez's release. Id. at 1386. It then explained, "Nevertheless, it seems important to discuss the serious constitutional questions involved if the statute were construed differently." Id. The Tenth Circuit disagreed with the government's interpretation of Mezei . It noted that " Mezei has been criticized as the nadir of the law with which the opinion dealt." Id. at 1388. The Tenth Circuit stated that the government could not execute Rodriguez-Fernandez simply because Cuba would not accept him back if the United States tried to remove him. Id. at 1387. Finding that due process had evolved to grant aliens more rights than they had at the time the Supreme Court decided Mezei , and finding that international law counseled against Rodriguez-Fernandez's continued detention, the Tenth Circuit ordered his release. Id. at 1388–90. The magistrate judge noted that " Rodriguez-Fernandez therefore suggests that the United States cannot indefinitely detain [aliens] without running afoul of the Due Process Clause." (Doc. 27 at 11.)
The magistrate judge continued, however, by finding that the Tenth Circuit, after Rodriguez-Fernandez , has still relied on Mezei ’s statement that arriving aliens enjoy only the process accorded to them by Congress. Id. For example, in Sierra v. INS , the government detained Sierra (an arriving alien) after he was disciplined for fighting while on parole. 258...
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