Alvarez v. Sessions
| Decision Date | 31 August 2018 |
| Docket Number | Case No. 5:18-cv-05208-EJD |
| Citation | 338 F.Supp.3d 1042 |
| Parties | Norberto Neria ALVAREZ, et al., Petitioners, v. Jefferson B. SESSIONS, et al., Respondents. |
| Court | U.S. District Court — Northern District of California |
Araceli Martinez-Olguin, Community Legal Services in East Palo Alto, East Palo Alto, CA, Jennifer Taylor Friedman, Francisco Ugarte, San Francisco Public Defenders Office, Luis Angel Reyes Savalza, Pangea Legal Services, San Francisco, CA, for Petitioners.
Claire T. Cormier, United States Attorney's Office Northern District of California, San Jose, CA, for Respondents.
EDWARD J. DAVILA, United States District JudgeOn July 10, 2018, the Contra Costa County Sheriff announced his department would formally terminate its contract with Immigration and Customs Enforcement ("ICE") to house undocumented immigrants at the West County Detention Facility in Richmond, California.1 Though this decision was supported by community organizers and activists, "the announcement was tempered by calls for detainees to be reunited with families rather than transferred to another facility."2
This habeas corpus action involves one of the most serious complications facing detainees who were transferred to another facility rather than released as a result of the Sheriff's decision. The Petitioners3 are ten non-citizens with removal proceedings pending before the Immigration Court in San Francisco who were formerly housed at the West County Detention Facility. They are each represented by pro bono counsel based in the San Francisco Bay Area in connection with those proceedings. On August 16th and August 17, 2018, ICE transferred Petitioners to facilities in Tacoma, Washington and Aurora, Colorado. Petitioners allege the transfers will essentially leave them unrepresented, violating their right to counsel under the Fifth Amendment.
ICE's decision to detain Petitioners in locations so far from their attorneys is troubling and its motivation for doing so is questionable, particularly since several Petitioners were scheduled to appear in immigration court two weeks after the transfers. This court, however, lacks jurisdiction to do anything other than comment on ICE's irresponsible transfer decisions. Because Petitioners' right-to-counsel claims arise from their removal proceedings, this action must be dismissed.
Petitioners are non-citizens from Mexico, Guatemala, Honduras and the former Yugoslavia who were ordered detained subject to ongoing removal proceedings venued in San Francisco. These proceedings are each at a different stage, though at least one petitioner - Bonilla Maradiaga - appears subject to a final removal order on appeal to the Board of Immigration Appeals. Several petitioners are represented in their removal proceedings by the San Francisco Public Defenders Office, while others are represented by different organizations or counsel based out of the San Francisco Bay Area.
Between August 16th and August 17, 2018, Petitioners were transferred from the West County Detention Facility in Richmond, California - a city adjacent to San Francisco - to other detention facilities in Tacoma, Washington and Aurora, Colorado. According to their pleadings, Petitioners and their attorneys were given little if any advance notice of the transfers, and some petitioners had master calendar hearings scheduled in immigration court in late August, September and October.
Petitioners allege their current detention in locations states-away from San Francisco significantly impacts the relationships with their attorneys and their ability to prepare their cases. None of Petitioners' current attorneys can continue with representation if Petitioners' removal proceedings are transferred to immigration courts in Washington or Colorado. And since Petitioners are indigent, they are unable to retain private counsel. Furthermore, Petitioners contend "[t]here is virtually no meaningful access to pro bono immigration counsel" in Tacoma or Aurora.
Petitioners initiated this habeas corpus action against the Attorney General, the Secretary of the Department of Homeland Security, the Acting Director of ICE, and the Acting ICE Field Office Director on August 24, 2018. Their petition asserts one claim for interference with and denial of access to counsel under the Fifth Amendment. Petitioners also filed a Motion for a Temporary Restraining Order ("TRO"), on which the court ordered briefing and a hearing. Dkt. Nos. 3, 7. The Government filed a timely opposition to the TRO motion on August 29, 2018, and the court heard from the parties at a hearing on August 31, 2018.
The Government argues in response to the TRO motion that the REAL ID Act of 2005's amendments to the Immigration and Nationality Act ("INA") strip this court of jurisdiction to review Petitioners' habeas challenge. The court agrees.
As Petitioners recognize in their jurisdictional allegations, the district court is generally vested with jurisdiction to grant a petition for writ of habeas corpus if a prisoner "is in custody in violation of the Constitution or laws treaties of the United States." 28 U.S.C. § 2241. Historically, the writ was "available to nonenemy aliens as well as to citizens," and "was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law...." I.N.S. v. St. Cyr, 533 U.S. 289, 301-302, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Moreover, since the writ is at its strongest when the legality of executive detention is at issue, there must be a "clear statement of congressional intent" to repeal the court's ability to review such detention through habeas. Id. at 299-301, 121 S.Ct. 2271.
From 1961 to 1996, "[h]abeas review remained available to a limited class of aliens, including those being held in detention subject to orders of exclusion," even though Congress had by that time provided that the courts of appeals were the "sole and exclusive" forum for judicial review of removal orders. Singh v. Gonzales, 499 F.3d 969, 975-76 (9th Cir. 2007). But in 1996, Congress began making "clear statements" limiting the courts' immigration habeas jurisdiction with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3546 (1996), and the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). "Through these two Acts, Congress repealed the provision allowing habeas review for certain aliens." Id. at 976.
In 2005, Congress enacted the REAL ID Act in response to the Supreme Court's decision in St. Cyr, which decision's "ultimate effect ... was to allow criminal aliens more judicial review than they had" before IIRIRA and AEDPA, "and more review than accorded to non-criminal aliens." Id. at 977. Through the REAL ID Act, Congress sought to restore judicial review "to its former settled forum prior to 1996" by expressly eliminating habeas review over all final orders of removal and restoring jurisdiction over all constitutional claims and other questions of law in the appellate courts through the process known as Petition for Review ("PFR"). Id. ; accord J.E.F.M v. Lynch, 837 F.3d 1026, 1033 n.5 (9th Cir. 2016) ().
Two provisions of the INA's jurisdictional statute, as amended by the REAL ID Act, are relevant to determining whether the court has jurisdiction over this action. The first is 8 U.S.C. § 1252(a)(5), which provides:
The second is 8 U.S.C. § 1252(b)(9), which provides:
The Ninth Circuit, in accord with another circuit's observation, has described § 1252(b)(9) as "breathtaking" because it "swallows up virtually all claims that tied to removal proceedings." J.E.F.M., 837 F.3d at 1031 (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007) ). The provision is a "zipper clause" which consolidates all judicial review of immigration proceedings into one action in the court of appeals. Id. (citing St. Cyr, 533 U.S. at 313 & n.37, 121 S.Ct. 2271 ). Thus, "[t]aken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue - whether legal or factual - arising from any removal-related activity can be reviewed only through the PFR process."
Id. (emphasis in original)...
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