Calderon-Rodriguez v. Wilcox

• Decision Date: 06 February 2019
• Docket Number: Case No. C18-1373JLR
• Citation: 374 F.Supp.3d 1024
• Parties: Henri CALDERON-RODRIGUEZ, Petitioner, v. Bryan S. WILCOX, et al., Respondents.
• Court: U.S. District Court — Western District of Washington

374 F.Supp.3d 1024

Henri CALDERON-RODRIGUEZ, Petitioner,

v.Bryan S. WILCOX, et al., Respondents.

Case No. C18-1373JLR

United States District Court, W.D. Washington, at Seattle.

Signed February 6, 2019

Filed February 7, 2019

ORDER

JAMES L. ROBART, United States District Judge

The court has conducted a de novo review of the challenged parts of the Report and Recommendation of the Honorable Mary Alice Theiler United States Magistrate Judge (Dkt. # 13). In doing so it has reviewed Petitioner's Objections (Dkt. # 15), Respondents' Objections (Dkt. # 14), Petitioner's Response to Respondents' Objections (Dkt. # 17), Respondents' Responses to Petitioner's Objections (Dkt. # 16), and the remaining record. The Court finds and ORDERS:

(1) The Court ADOPTS in part and AMENDS in part the Report and Recommendation;

(2) The Government's motion to dismiss, Dkt. 4, is GRANTED in part and DENIED in part;

(3) Petitioner's habeas petition, Dkt. 1, is GRANTED in part and DENIED in part;

(4) Petitioner's request for immediate release is denied. However, the Government shall release petitioner on appropriate conditions within 45 days unless, at a new bond hearing, it presents clear and convincing evidence that he presents a current flight risk or danger to the community; and

(5) The Clerk is directed to send copies of this Order to the parties and to Judge Theiler.

REPORT AND RECOMMENDATION

Mary Alice Theiler, United States Magistrate Judge

I. INTRODUCTION

This is an immigration habeas action brought under 28 U.S.C. § 2241. Petitioner, a native and citizen of El Salvador, has been in the custody of U.S. Immigration and Customs Enforcement ("ICE") for over six and a half years while his removal proceedings have been pending. At each of his five bond hearings, the immigration judge ("IJ") concluded that no amount of bond or conditions of release could prevent petitioner's flight or protect the community from the danger he presents. Her justification: DUIs from 2005 and 2007, and a DUI/vehicular assault conviction from 2011. While certainly serious crimes, the most severe criminal sentence he received was three months of work release and 12 months of probation. He was never sentenced to any jail time. The convictions are the basis for his exceedingly lengthy civil detention.

While detention pending removal proceedings is constitutionally permissible, it must comport with due process. Among other requirements, the Government must justify prolonged detention with clear and convincing evidence that the noncitizen presents a current flight risk or danger to the community. Dangerousness cannot be based on criminal history alone; the severity and recency of the criminal conduct must be taken into account. The IJ also must consider changes in circumstances that would make recidivism less likely. Finally, although the Court cannot review the IJ's discretionary judgment, it may review the record for constitutional claims and legal error and to ensure that the clear and convincing evidence standard is met as a matter of law.

In this case, petitioner seeks release from immigration detention or a new bond hearing. The Government moves to dismiss. Having considered the parties' submissions, the balance of the record, and the governing law, the Court concludes that petitioner is not entitled to release but is entitled to a new bond hearing.¹ The IJ erred as a matter of law in failing to consider petitioner's flight risk and dangerousness on a current basis. In addition, given that petitioner's only criminal history involves alcohol and driving, and there is evidence in the record regarding petitioner's sobriety and willingness to refrain from driving if he is released, the Court concludes that there is not clear and convincing evidence in the record that justifies his continued detention.

Accordingly, the Court recommends that both the Government's motion to dismiss and petitioner's habeas petition be GRANTED in part and DENIED in part. Petitioner's request for immediate release should be denied, but the Government should be ordered to release him on appropriate conditions within 30 days unless, at a new bond hearing, it presents clear and convincing evidence that he presents a current flight risk or danger to the community.

II. BACKGROUND

Petitioner is a native and citizen of El Salvador who initially entered the United States without inspection in July 2001. Dkt. 5-1 at 2. He lived in California, Texas, and South Carolina before moving to Washington, where his mother was living, in August 2009. Id. at 12-15. While he was living in South Carolina, he committed misdemeanor DUIs in 2005 and 2007. Id. at 31. On August 14, 2011, petitioner again drove under the influence, this time causing an accident that injured a passenger in the other car. Id. at 22-29, 91. Petitioner drove away from the scene but returned after witnesses caught up with him five blocks away. Id. at 91. Petitioner subsequently pleaded guilty to DUI/vehicular assault and was sentenced to three months of work release and 12 months of parole. Id. at 17, 95-116.

On June 7, 2012, ICE officers arrested petitioner at his home in Burien, Washington, and transferred him to the Northwest Detention Center. Id. at 3, 123. He was served with a Notice to Appear, charging him as removable because he was not lawfully admitted or paroled into the country. Id. at 118, 120-21. As discussed below, petitioner's removal proceedings are ongoing and he has remained in detention since his arrest over six and a half years ago.

A. Petitioner's removal proceedings

On July 10, 2012, petitioner conceded removability from the United States. Id. at 127-28. He subsequently applied for cancellation of removal. Id. at 136-37, 146. On August 1, 2013, an IJ held a hearing on his application. Id. at 6-89. In a written decision dated August 28, 2013, she found that petitioner presented credible testimony and was statutorily eligible for cancellation of removal, but she denied his application as a matter of discretion based on his criminal history, finding that he "engaged in a pattern of potentially dangerous criminal misconduct in the United States." Id. at 152-58. The IJ went on, "His criminal misconduct escalated and culminated in injury to others and damage to property. The driving offenses involving alcohol span a number of years with the last offense being recent and serious .... [He] has shown a disregard for the laws in the United States and for the safety of others." Id. at 157-58. The IJ also denied petitioner's request for post conclusion voluntary departure and ordered him to be removed to El Salvador. Id. at 158-59.

Petitioner appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. Id. at 162-64. Petitioner filed a petition for review in the Ninth Circuit, which stayed his removal. Id. at 166-67. On August 12, 2014, the Ninth Circuit granted the government's unopposed motion to remand the case to the BIA to consider whether the IJ properly addressed the issue of petitioner's mental competency. Id. at 169. On January 30, 2015, the BIA remanded the matter to the IJ for further proceedings. Id. at 172.

On August 3, 2015, the IJ held a hearing and, after considering all of the evidence including the parties' submissions regarding petitioner's mental competency, the IJ found that petitioner was competent to proceed pro se and again denied his application for cancellation of removal and request for voluntary departure. Id. at 190-92, 201-02, 205. The BIA adopted the IJ's competency evaluation. Id. at 212. Petitioner sought review with the Ninth Circuit. See id. at 207. On January 3, 2018, the Ninth Circuit found that the BIA abused its discretion by affirming the IJ's inaccurate factual findings about the mental health evidence in the record and the IJ's failure to apply the correct standards. Id. at 207-17. The court remanded the case to the BIA with instructions to send the case back to the IJ for a competency evaluation based on current mental health reviews and medical records. Id. at 217.

On September 17, 2018, the IJ held a third hearing and again found petitioner competent and denied his application for relief from removal. Id. at 220-31. Petitioner's appeal to the BIA is currently pending. See Dkts. 8-3, 8-4.

B. Petitioner's custody determinations

Petitioner has received five bond hearings, all before the same IJ. He was represented by counsel at the first and appeared pro se at the others. Following the last bond hearing, ICE reviewed petitioner's custody status. Most recently, petitioner requested a new bond hearing based on changed circumstances but was denied. The details of these events are described below.

1. Bond hearings

On August 6, 2012, the IJ held a bond hearing pursuant to 8 U.S.C. § 1226(a) and denied bond. Dkt. 5-1 at 233. There are no details in the record regarding this hearing.

On June 11, 2014, petitioner received a Casas bond hearing.² Dkt. 5-1 at 237, 239. The IJ placed the burden on the government to justify continued detention. Id. at 242. The IJ denied bond, finding that petitioner was a flight risk and danger to the community based on his criminal history. Id. at 239, 243-45. In the IJ's written memorandum, she explained that petitioner "engaged in a pattern of dangerous criminal misconduct" and that his driving offenses involving alcohol spanned a number of years and culminated in the latest offense, which was "recent and serious." Id. at 245. Petitioner appealed to the BIA, which dismissed his appeal.³ Id. at 247-55.

On August 21, 2014, the IJ held a Franco-Gonzalez bond hearing.⁴ Dkt. 5-1 at 260-65. The IJ placed the burden on the government to justify continued detention. Id. at 262. The IJ found that petitioner's mental health issues did not impair his ability to understand the nature and purpose of the proceedings. Id. at 263. The IJ denied bond, finding that the government met its burden based on petitioner's criminal history and limited forms of relief from removal. I...