Castellar v. Nielsen, Case No. 17-cv-0491-BAS-BGS

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtHon. Cynthia Bashant United States District Judge
Docket NumberCase No. 17-cv-0491-BAS-BGS
PartiesJOSE ORLANDO CANCINO CASTELLAR, et al., Plaintiff-Petitioners, v. KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al., Defendant-Respondents.
Decision Date08 February 2018

JOSE ORLANDO CANCINO CASTELLAR, et al., Plaintiff-Petitioners,
KIRSTJEN NIELSEN, Secretary, U.S. Department
of Homeland Security, et al., Defendant-Respondents.

Case No. 17-cv-0491-BAS-BGS


February 8, 2018





Plaintiffs Jose Orlando Cancino Castellar, Ana Maria Hernandez Aguas, and Michael Gonzalez1 are immigrants who were apprehended and taken into custody by immigration officers. (ECF No. 1.) Like many immigrants in the Southern District of California, they remained in custody for nearly one to three months before they ever saw an immigration judge. That first appearance before an immigration judge

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is a crucial stage of removal proceedings for immigrants who the government seeks to remove from the United States. Immigration judges advise immigrants of important rights they have during the pendency of removal proceedings and of options immigrants may have to remain in the United States. The first appearance also provides an opportunity for an immigrant in custody to request that the immigration judge review custody decisions by immigration officers. In this case, Plaintiffs allege that the Defendants2—various national and local immigration officials overseeing immigration enforcement—have a policy and practice of unreasonably delaying an immigrant's first appearance before an immigration judge, and do not promptly seek judicial review of the justification to keep immigrants in custody pending removal. Plaintiffs claim that the one to three months they remain in custody is due to this policy, in violation of the Fourth and Fifth Amendments to the United States Constitution and the Administrative Procedure Act ("APA"). (Id.)

Defendants challenge this Court's jurisdiction over Plaintiffs' claims. This challenge is based on various provisions of the Immigration and Nationality Act ("INA") enacted by Congress in 1996 and 2005, which affect the jurisdiction of federal courts over and the scope of judicial review of claims raised by immigrants in removal proceedings. These provisions dictate what, when, and how certain claims can be raised as well as the particular court where an immigrant may raise his or her claims. Defendants argue that three jurisdictional provisions of the INA in particular—8 U.S.C. §§1252(a)(5) and (b)(9) as well as §1252(g)—deprive this Court of jurisdiction over Plaintiffs' claims. (ECF No. 28-1.) Defendants also seek dismissal of the Complaint on the ground that Plaintiffs have failed to state a plausible

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legal claim that the Constitution requires "prompt" presentment to an immigration judge and review by that judge of the justification to keep immigrants in custody beyond 48 hours after their initial apprehension. (Id.)

For the reasons stated herein, the Court grants Defendants' motion to dismiss for lack of jurisdiction.


A. Statutory and Regulatory Background3

Congress, by statute, and DHS, by regulation, have configured the scheme by which immigrants subject to removal are initially apprehended, placed into the custody of immigration officers, and presented to an immigration judge. The Court briefly outlines aspects of these nascent stages of the removal process.

1. Initial Arrest and Custody Pending Removal Hearing

Generally, apprehension of an alien may occur in one of two ways. A DHS agent may arrest a person alleged to be an alien under an administrative warrant signed by another DHS official. See 8 U.S.C. §1226(a); 8 C.F.R. §1236.1. Under Section 1357 of the INA, immigration officers may arrest without a warrant "[a]ny alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest." 8 U.S.C. §1357(a)(2).

After apprehension, immigration officers make determinations about whether to place an alien in removal proceedings and whether to maintain the alien in custody pending the first removal hearing. Section 1357 of the 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

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remain in the United States." Id. 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.R.F. §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.R.F. §287.3(b). If the alien is not subject to expedited removal, was arrested without a warrant, and is placed in formal removal proceedings, the examining officer advises the alien of the reasons for his or her arrest, the right to representation at no expense to the Government, and provides a list of pro bono legal services. 8 C.R.F. §287.3(c). The officer also advises the alien that any statement the alien makes may be used against him or her in a subsequent proceeding. Id.

The examining officer also makes a determination about 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.R.F. §287.3(d). For an alien who is eligible for release, the officer must consider, inter alia, whether the alien will appear for any future removal proceeding. See 8 C.F.R. §§236.1; 1236.1.

Lastly, the examining officer also determines whether a notice to appear ("NTA") and warrant of arrest will be issued under the standards set forth in 8 C.R.F. part 239. Id. At the time an NTA is issued, DHS regulations authorize an immigration officer to formally arrest and take the alien into custody under a Form I-200 Warrant of Arrest. 8 C.F.R. §236.1(b); see also 8 C.F.R. §1236.1(b) (same).

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2. Commencement of Removal Proceedings and First Removal Hearing

With certain exceptions, including for aliens 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). Every removal proceeding under this section commences when immigration officers file an NTA against an alien with the immigration court, an entity which is part of EOIR. 8 C.F.R. §1239.1(a); see also 8 C.F.R. §1003.14. Immigration officers provide the time, place and date of the initial removal hearing in the NTA "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).

Certain statutory provisions and regulations govern the timing of the removal hearing. As a general matter, 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). In certain circumstances, removal hearings must be commenced expeditiously, if possible. For example, the Attorney General must commence removal proceedings "as expeditiously as possible after the date of conviction" for an alien who is convicted of an offense making the alien removable. 8 U.S.C. §1229(d)(1).

The initial Master Calendar Hearing ("MCH") is the first removal hearing and is conducted by an immigration judge. (ECF No. 1 ¶¶21, 29-30; ECF No. 28-1 at 6.) At the initial MCH, the IJ "explains the nature of the removal proceeding, the contents of the [NTA] 'in non-technical language,' an alien's right to representation

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at his or her own expense, and the availability of pro bono legal services." (ECF No. 1 ¶29 (citing 8 C.F.R. §1240.10(a)).) The hearing provides an opportunity for the IJ 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).) Where there are otherwise no issues with the NTA, "the [IJ] shall require the [alien] to plead to the [NTA] by stating whether he or she admits or denies the factual allegations and his or her removability under the charges contained therein." 8 C.F.R. §1240.10(c). The IJ advises the alien of his or her opportunity to examine and object to evidence of removability. Id. The IJ may identify several forms of relief from removability for which the alien may be eligible. (ECF No. 1 ¶32.) The IJ 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 IJ 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...

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