Calderon v. Barr
| Decision Date | 12 May 2020 |
| Docket Number | No. 2:20-cv-00891 KJM GGH,2:20-cv-00891 KJM GGH |
| Parties | GUSTAVO PURECO CALDERON, Petitioner, v. WILLIAM BARR, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner, an alien detainee in the custody of the United States Immigration and Customs Enforcement ("ICE"), is proceeding through counsel on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302(c).
Pending before the court is petitioner's motion seeking release on bail, or other conditions, from ICE custody based on the potential spread of COVID-19 at Yuba County Jail in Marysville, CA. ECF No. 6. Pursuant to the court's expedited briefing schedule, respondent has filed a response, ECF No. 7, and petitioner a reply, ECF No. 8. After carefully reviewing the filings, and application of the applicable law, the court now issues the following Findings and Recommendations recommending a stay of this action.
Petitioner is a citizen of Mexico who became a lawful permanent resident of the United States in December 1, 1989. ECF Nos. 6 at 1; 7 at 3. On May 17, 1991, petitioner was convicted of second-degree murder and assault with a firearm in the Sonoma County Superior Court. ECF Nos. 6 at 2; 7 at 3. He was sentenced to a term of fifteen years to life in prison, with an additional three years. Id. On January 30, 2019, the Department of Homeland Security ("DHS") issued petitioner a Notice to Appear before an immigration judge for removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A). ECF No. 7 at 3.
On April 12, 2019, petitioner, through counsel, appeared before an immigration judge and admitted the factual allegations against him in the Notice to Appear and conceded the charge of removability. ECF No. 7 at 3. Subsequently thereafter, petitioner filed before the immigration judge a deferral of removal under the Convention Against Torture ("CAT"). ECF Nos. 6 at 2; 7 at 3. On May 23, 2019, after holding an individual merits hearing on petitioner's CAT application, the immigration judge denied petitioner's request for relief. Id. Petitioner appealed to the decision to the Board of Immigration Appeals ("BIA") and on October 4, 2019, the BIA denied petitioner's appeal. Id.
On October 9, 2019, petitioner filed a petition for review before the Ninth Circuit Court of Appeals for review of the BIA's decision as well as a stay of his removal. ECF Nos. 6 at 1-2; 7 at 3. The petition for review and motion for stay has been fully briefed and is currently pending before the Court of Appeals. ECF Nos. 6 at 2; 7 at 3.
On March 30, 2020, petitioner filed before the Ninth Circuit Court of Appeals ("Court of Appeals") a "Motion for Immediate Release on Account of Risks to Personal and Community Health Due to COVID-19 Pandemic[.]" ECF No. 2. On April 30, 2020, after receiving briefing from parties, (Opposition, ECF No. 3; Reply, ECF No. 4) the Court of Appeals construed petitioner's motion for immediate release as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and transferred the matter to this court. ECF No. 1. In its reasoning for transferringthe case to the district court, the Court of Appeals found while the Immigration and Nationality Act provided the Court of Appeals jurisdiction over petitions for review of final orders of removal (citing 8 U.S.C. § 1251(a)(1)), ECF No. 1 at 2. In light of the immediacy of the issues presented, the Court of Appeals urged this court to address this matter expeditiously.
On April 30, 2020, the Court of Appeals transferred this matter to this court. ECF No. 1. On May 4, 2020, the undersigned issued an order requesting petitioner to file a motion for release on bail/conditions pending final adjudication of this petition and setting the matter on an expedited briefing schedule. On May 6, 2020, petitioner filed a "Motion for Release on Bail or Conditions Deemed Appropriate by the Court." ECF No. 6. On May 8, 2020, respondent filed a response, ECF No. 7, and on May 11, 2020, petitioner filed a reply, ECF No. 8.
Neither in his motion before the Ninth Circuit nor in his motion before this court, does petitioner set forth the basis for the request for release pending Ninth Circuit review.
It is undisputed that a person in petitioner's situation is mandatorily detained under the immigration laws of the United States. See Demore v. Kim, 538 U.S. 510 (2003). As a detainee under the immigration laws, petitioner is considered to be a civil detainee. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). As such the propriety of detention on a constitutional basis is judged upon whether such detention amounts to punishment in violation of the Fifth Amendment. Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial detainees). Moreover, under the Fifth Amendment's Due Process Clause, a civil detainee cannot be subjected to conditions that amount to punishment. The Fifth Amendment's Due
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////Process Clause protects a civil detainee from conditions that amount to punishment. King v. Cty. of Los Angeles, 885 F.3d 548, 556-557 (9th Cir. 2018); Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004).
It is important to note here, that unlike the situation in Singh, 638 F.3d 1196, petitioner does not challenge his mandatory detention under the immigration laws on the basis that his detention pursuant to the immigration statutes has been unduly prolonged (approximately one year and a half). Rather he challenges, his detention solely on conditions of confinement, i.e., that the potential for spread of COVID-19 within the close confines of the Yuba County Jail, and the potential for deleterious effects on his health, or even life, amount to punishment in violation of the Fifth Amendment to the Constitution.
Thus, no further mention will be made here concerning release based on prolonged detention. As the Supreme Court has recently announced, the raising of such issues sua sponte is an abuse of discretion. United States v. Sineneng-Smith, No. 19-67, 2020 WL 2200834 .
Respondent has cross-moved for a stay of this case so that petitioner's claim may be litigated in a provisionally certified class action, Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020).
The vast majority of cases in the lower courts dealing with the COVID-19 pandemic as it affects detention facilities more or less assume jurisdiction is appropriate under 28 U.S.C. § 2241 because the ultimate relief sought is release from custody. See e.g., Pimentel-Estrada v. Barr, No. C20-495 RSM-BAT, 2020 WL 2092430, at *11 (W.D. Wash. Apr. 28, 2020). Of the cases that have written about the jurisdictional issue, one of the more succinct analyses appears in Habibi v. Barr, No. 20-CV-00618-BAS-RBB, 2020 WL 1864642, at *2 n.2 (S.D. Cal. Apr. 14, 2020):
The Government also argues that "seeking release under a writ of habeas corpus is not an appropriate method for remedying confinement conditions[.]" (Resp. at 11-12.) The Court disagrees with the Government's characterization of Petitioner's claim. Petitioner is not challenging a specific condition of his confinement but instead claims that his confinement itself violates his due process rights—a direct challenge to the validity of his detention. SeeMuhammad v. Close, 540 U.S. 749, 750 (2004). Other courts in this Circuit have considered similar claims brought under § 2241. See Bent v. Barr, Case No. 19-CV-06123-DMR, 2020 WL 1812850 (N.D. Cal. April 9, 2020); Castillo v. Barr, Case No. CV 20-00605-TJJH (AFMx), 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020). Moreover, the Ninth Circuit itself has sua sponte ordered the release of an immigrant detainee "in light of the rapidly escalating public health crisis[.]" Xochihua-Jaimes v. Barr, Case No. 18-cv-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020). Thus, the Court does not find persuasive the Government's position that the Petition is an improper vehicle for Petitioner's claims.
However, the undersigned is not so sanguine as the above courts that jurisdiction in habeas corpus exists.1 While the words of 28 U.S.C. § 2241 could encompass any violation of the Constitution, i.e., "[h]e is in custody in violation of the Constitution," the Supreme Court has made clear that conditions of confinement cases should proceed in civil rights cases, where the remedy is to correct the Constitutional deficiency, see Preiser v. Rodriguez, 411 U.S. 475, 484-486 (1973); Crawford v. Bell, 599 F.2d 890, 891-892 (9th Cir. 1979); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Attacks on the legality of confinement per se should proceed in habeas corpus actions where the remedy is release from custody. See also Nettles v. Grounds, 830 F.3d 922, 930-34 (9th Cir. 2016) ().
It is certainly true that petitioner seeks the remedy of release here. However, there is a risk of turning 28 U.S.C. § 2241 into a general civil rights statute by the mere expedient of a petitioner seeking that release remedy, perhaps among other remedies, in every habeas action in which conditions of confinement are...
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