Castellar v. McAleenan

Decision Date07 June 2019
Docket NumberCase No. 17-cv-0491-BAS-BGS
Citation388 F.Supp.3d 1218
CourtU.S. District Court — Southern District of California
Parties Jose Orlando CANCINO CASTELLAR; Ana Maria Hernandez Aguas; Michael Gonzalez, Plaintiff-Petitioners, v. Kevin MCALEENAN, Acting Secretary, U.S. Department of Homeland Security, et al., Defendant-Respondents.

Bardis Vakili, John David Loy, ACLU Foundation of San Diego & Imperial Counties, Aleksandr Gelberg, Craig E. Countryman, Joanna M. Fuller, Megan Alexandra Chacon, Fish & Richardson, P.C., Leonard B. Simon, The Law Offices of Leonard B. Simon, San Diego, CA, for Plaintiff-Petitioners.

Elianis N. Perez, Carlton Frederick Sheffield, III, Colin A. Kisor, Kathleen Connolly, United States Department of Justice, Sarah L. Vuong, Office of Immigration Litigation, Washington, DC, Samuel William Bettwy, U.S. Attorney's Office Southern District of California, San Diego, CA, for Defendant-Respondents.


Hon. Cynthia Bashant, United States District Judge This case presents the question whether the Fifth Amendment Due Process Clause requires certain protections for noncitizens detained by the Government pending removal proceedings. On behalf of themselves and a putative class of noncitizens detained in the Southern District of California, Plaintiff-Petitioners Jose Orlando Cancino Castellar, Ana Maria Hernandez Aguas, and Michael Gonzalez (the "Plaintiff-Petitioners") claim that the Due Process Clause requires prompt presentment to an immigration judge after the Government takes an alleged noncitizen into custody. Defendant-Respondents1 —various federal immigration officials who oversee immigration enforcement nationally and locally in the Southern District of California—allegedly have a policy and practice of delaying for one to three months the presentment of detained noncitizens to an immigration judge, which Plaintiff-Petitioners contend renders their detention unreasonably prolonged. Plaintiff-Petitioners allege that Defendant-Respondents' policy impedes Plaintiff-Petitioners' access to a panoply of statutorily and regulatory-required features and rights that attend a noncitizen's initial hearing before an immigration judge, and further impedes the ability for certain noncitizens to request a bond hearing.

Following reconsideration of its prior dismissal of this case for lack of subject matter jurisdiction, the Court reinstated Plaintiff-Petitioners' claims that Defendant-Respondents' alleged policy violates the substantive and procedural components of the Fifth Amendment Due Process Clause and various provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), 706(2)(A)(D). See Cancino–Castellar v. Nielsen , 338 F. Supp. 3d 1107, 1117–18 (S.D. Cal. 2018). Defendant-Respondents have renewed their Rule 12(b)(6) motion to dismiss Plaintiff-Petitioners' Fifth Amendment and corresponding APA claims. (ECF Nos. 60, 62.) Plaintiff-Petitioners oppose. (ECF No. 61.) For the reasons herein, the Court grants in part and denies in part Defendant-Respondents' motion.

A. Relevant Statutes and Regulations

The Court previously discussed the relevant statutory and regulatory framework in this case in the Court's initial jurisdictional analysis. (ECF No. 49 at 3–6.) Because the claims subject to review have changed as a result of the Court's reconsideration order and in the interest of completeness of the Court's Rule 12(b)(6) analysis, the Court once more sets forth the relevant statutory and regulatory framework.

1. Initial Custody Determination Pending Removal Hearing

Section 1357 of the Immigration and Nationality Act ("INA") requires that an alien arrested without a warrant "shall be taken without unnecessary delay ... before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States." 8 U.S.C. § 1357(a)(2). In accordance with this statutory directive, by regulation, "an alien arrested without a warrant ... will be examined by an officer other than the arresting officer" but "the arresting officer" may conduct the examination "if taking the alien before another officer would entail unnecessary delay." 8 C.F.R. § 287.3(a). If the examining officer is satisfied that there is "prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws," the officer must refer the case to an immigration judge for further inquiry, or take any action that may be appropriate or required under applicable law and regulations. 8 C.F.R. § 287.3(b).

By regulation, the examining officer also decides whether the alien will remain in custody. Unless voluntary departure has been granted and in the absence of "an emergency or other extraordinary circumstances" requiring "an additional reasonable period of time," "a determination will be made within 48 hours of the arrest ... whether the alien will be continued in custody or released on bond or recognizance" subject to the standards for release established by 8 C.F.R. part 236. 8 C.F.R. § 287.3(d). For an alien who is eligible for release, the "alien must demonstrate to the satisfaction of the officer that [his or her] release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." 8 C.F.R. §§ 236.1, 1236.1. The examining officer determines whether a notice to appear ("NTA") and warrant of arrest will be issued under the standards set forth in 8 C.F.R. part 239. 8 C.F.R. § 287.3(d). DHS regulations authorize an immigration officer to formally arrest and take the alien into custody pursuant to a Form I-200 Warrant of Arrest at the time an NTA is issued. 8 C.F.R. § 236.1(b) ; see also 8 C.F.R. § 1236.1(b) (same).

Except for an alien subject to expedited removal, the examining officer must advise an alien who was arrested without a warrant and who is placed in Section 240 removal proceedings about the reasons for his or her arrest and "the right to representation at no expense to the Government." 8 C.F.R. § 287.3(c). The officer must provide a list of "the available free legal services" available "in the district where the hearing will be held" and the officer "shall note on Form I-862 that such a list was provided to the alien." Id. Finally, the officer advises the alien that any statement the alien makes may be used against him or her in a subsequent proceeding. Id.

2. Commencement of Removal Proceedings

With certain exceptions, including for an alien subject to expedited removal, removal proceedings under Section 240 of the INA are the "sole and exclusive procedure" to determine whether an alien is removable from the United States. 8 U.S.C. § 1229a(a)(3). A Section 240 removal proceeding commences when an immigration officer files an NTA against an alien with the immigration court, an entity which is part of the Executive Office for Immigration Review ("EOIR"). 8 C.F.R. § 1239.1(a) ; see also 8 C.F.R. § 1003.14.

As a general matter, "[t]he Immigration Court shall be responsible for scheduling cases and providing notice to the government and the alien of the time, place, and date of hearings." 8 C.F.R. § 1003.18(a). Notwithstanding this general rule, immigration officers "shall provide in the [NTA], the time, place and date of the initial removal hearing, where practicable." 8 C.F.R. § 1003.18(b). If this information is not contained in the NTA, the immigration court has responsibility for providing the government and the alien notice of the time, place, and date of the initial removal hearing. Id. The immigration court is otherwise responsible for scheduling removal hearings. 8 C.F.R. § 1003.18(a). By statute, the INA requires that "in order that an alien be permitted the opportunity to secure counsel before the first hearing date in proceedings ..., the hearing date shall not be scheduled earlier than 10 days after service of the [NTA], unless the alien requests in writing an earlier hearing date." 8 U.S.C. § 1229(b)(1).

The initial Master Calendar Hearing ("MCH") is the "initial hearing in removal proceedings" and is "the first time a neutral adjudicator (the immigration judge) explains" certain aspects of removal proceedings. (ECF No. 1, Complaint-Petition ("Compl.-Pet.") ¶¶ 25, 29–30.) At the initial MCH, the immigration judge "explains the nature of the removal proceeding, the contents of the [NTA] ‘in non-technical language,’ an alien's right to representation at his or her own expense, and the availability of pro bono legal services." (Id. ¶ 29 (citing 8 C.F.R. § 1240.10(a) ).) The hearing provides an opportunity for the immigration judge to verify service of the NTA, provide the NTA if service was not made, and examine the NTA for and demand correction of any defects. (Id. ¶ 30 (citing IJ Benchbook, Introduction to the Master Calendar 3).) The immigration judge may identify several forms of relief from removability for which the alien may be eligible. (Id. ¶ 32.) The immigration judge does all of this in the native language of the alien through an interpreter. (Id. ¶ 29 (citing Immigration Court Practice Manual, Chapter 4.15(f).) The initial MCH also provides an immigration judge the "first opportunity to speak with and observe aliens who may be eligible for appointed counsel as a result of incapacity due to mental health." (Id. ¶ 34.)

"[A]t the initial [MCH], unrepresented detainees who do not speak or write English may, for the first time, request a bond hearing with the aid of an interpreter in their native language." (Id. ¶ 31 (citing 8 C.F.R. §§ 1003.19(b), (c) ).) Following such a request, the immigration judge must schedule the bond hearing at "the earliest possible date." (Id. (quoting Immigration Court Practice Manual, Chapter 9.3(d).) For detained aliens who DHS asserts are ineligible for bond hearings because they are...

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