Chairez-Castrejon v. Bible
| Decision Date | 18 May 2016 |
| Docket Number | Case No. 2:15-cv-825-JNP-EJF |
| Parties | Martin Chairez-Castrejon, Petitioner, v. Daniel Bible, James O. Tracy, Jeh Johnson, and Loretta Lynch, Respondents. |
| Court | U.S. District Court — District of Utah |
Skyler K. Anderson, Immigrant Defenders PLLC, Taylorsville, UT, for Petitioner.
C. Frederick Sheffield, Washington, DC, Daniel D. Price, US Attorney's Office, Salt Lake City, UT, for Respondents.
Before the court is Petitioner Martin Chairez-Castrejon's ("Mr. Chairez") Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket 2). Mr. Chairez contends that the Government is violating his due process rights by detaining him since March 14, 2013 without a bond hearing under 8 U.S.C. § 1226(c).
On May 12, 2016, the court held a hearing on Mr. Chairez's petition. The court then took Mr. Chairez's petition under advisement. After careful consideration of the record, relevant law, and the parties' memoranda, the court GRANTS Mr. Chairez's Petition for Writ of Habeas Corpus (Docket 2).
Mr. Chairez is a fifty-one-year-old Mexican native who has been a lawful permanent resident of the United States since 1990. On December 3, 2012, Mr. Chairez was convicted of felony discharge of a firearm in violation of Utah Code § 76–10–508.1, a third degree felony. In February 2013, the state trial court sentenced Mr. Chairez to forty-four days in jail.
On March 14, 2013, Mr. Chairez completed his sentence and was transferred into the custody of the Department of Homeland Security ("DHS"). DHS issued a Notice to Appear in removal proceedings, charging Mr. Chairez as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) & (a)(2)(C), and arguing that his conviction for felony discharge of a firearm was an aggravated felony under 8 U.S.C. § 1101(a)(43)(E). DHS determined that Mr. Chairez's conviction rendered him ineligible to be released on bond under 8 U.S.C. § 1226(c) during the duration of his removal proceedings.1
On April 1, 2013, the immigration judge ("IJ") held a hearing at which DHS filed additional charges of removability. Also at the hearing, Mr. Chairez's counsel requested the case be continued for one week, until April 8, 2013. At Mr. Chairez's counsel's request, the case was again continued for another two weeks, until April 22, 2013. At the April 22 hearing, Mr. Chairez's counsel moved for another continuance and requested time to brief the issue of whether Mr. Chairez's offense constitutes an aggravated felony, which would render him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).
Seven weeks later, on June 10, 2013, the IJ sustained DHS's charges that Mr. Chairez was removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) & (a)(2)(C). Mr. Chairez subsequently requested another continuance so that he could file a Convention Against Torture ("CAT") application. Mr. Chairez filed his CAT application on June 20, 2013.
Nearly two months later, on August 14, 2013, the IJ held a hearing on Mr. Chairez's removal and CAT claims. The day before the hearing, Mr. Chairez retained new counsel. At the hearing, Mr. Chairez's new counsel advised the IJ that he was not prepared to proceed on Mr. Chairez's CAT application and that he wished to raise new legal arguments based on the Supreme Court's recent decision in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Counsel also advised the IJ that Mr. Chairez may be able to seek relief from removal by readjusting to permanent resident status—based on a visa petition filed by Mr. Chairez's son who is a U.S. citizen—and obtain a 212(h) discretionary waiver under 8 U.S.C. § 1182(h). The IJ subsequently continued proceedings until August 26, 2013.
On the morning of the August 26 hearing, Mr. Chairez filed a motion to reconsider removability and terminate proceedings based on Descamps . Mr. Chairez's Descamps arguments concerned whether Mr. Chairez's conviction for felony discharge of a firearm was divisible, as outlined by Descamps , so as to permit application of the modified categorical approach to determine removability. The IJ granted DHS until September 6, 2013 to file a response to Mr. Chairez's motion.
On September 18, 2013, the IJ denied Mr. Chairez's motions and ordered him removed. The IJ did not address Mr. Chairez's Descamps arguments in its decision. Mr. Chairez subsequently filed an appeal to the Board of Immigration Appeals ("BIA"). At this point, Mr. Chairez also withdrew his CAT claim. The BIA gave the parties until November 26, 2013 to file their appellate briefs.
On April 9, 2014—nearly five months after the close of briefing on Mr. Chairez's appeal—the BIA requested supplemental briefing on Descamps , an issue that DHS had failed to meaningfully brief or address in its appellate briefing. Oral argument took place one month later on May 14, 2014.
Over two months later, on July 24, 2014, the BIA issued its first published decision and held that, under Descamps , Mr. Chairez was not removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). Although the BIA found that Mr. Chairez still remained removable under 8 U.S.C. § 1227(a)(2)(C) for various firearm offenses, the BIA remanded proceedings to the IJ to determine whether Mr. Chairez was eligible for any relief.
On August 25, 2014, DHS filed a motion to reconsider the BIA's ruling. On February 11, 2015—nearly six months later—the BIA granted DHS's motion to reconsider and reversed its prior decision on Mr. Chairez's removability based on a recent Tenth Circuit decision interpreting Descamps , United States v. Trent , 767 F.3d 1046 (10th Cir.2014). The BIA concluded that under Trent , Mr. Chairez's conviction for felony discharge of a firearm was divisible and that the IJ properly employed the modified categorical approach in finding Mr. Chairez removable as an aggravated felon. The BIA again remanded proceedings to the IJ for further consideration of any relief.
Two months later, on April 13, 2015, the IJ held a hearing at which Mr. Chairez filed a second motion to terminate proceedings and for relief from removal. Mr. Chairez's second motion was based on the fact that Mr. Chairez's son's visa petition had been approved, thereby allowing Mr. Chairez to apply for a 212(h) discretionary waiver of inadmissibility.
The IJ held a hearing on Mr. Chairez's motion one month later, on May 21, 2015. After hearing from Mr. Chairez's first two witnesses, the IJ continued the matter for another month, until June 18, 2015, to hear from Mr. Chairez's remaining three witnesses. On September 9, 2015—nearly three months later—the IJ again denied Mr. Chairez's motion and ordered him removed. Specifically, the IJ denied Mr. Chairez's application for a 212(h) waiver because Mr. Chairez had failed to establish the requisite hardship to a qualifying relative.
Mr. Chairez again appealed the IJ's decision to the BIA, and the BIA set a briefing schedule for the appeal. On October 30, 2015, Loretta Lynch, the U.S. Attorney General, referred the case to herself to address "the proper approach for determining ‘divisibility’ within the meaning of Descamps ," an issue raised in Mr. Chairez's original motion for relief filed in August 2013. Accordingly, the BIA cancelled its briefing schedule.
Mr. Chairez filed this petition for habeas corpus under 28 U.S.C. § 2241 on November 20, 2015. Mr. Chairez's case remains pending before the Attorney General and his appeal before the BIA remains stayed.
At present, Mr. Chairez is in the physical custody of the U.S. Immigration and Customs Enforcement ("ICE"), and is detained at the Utah County Facility in Spanish Fork, Utah. Mr. Chairez is under the direct control of Respondents and their agents. As such, Mr. Chairez is suing the following individuals in their official capacities: Daniel Bible, the Field Office Director for the ICE Salt Lake City field office; James O. Tracy, the Sheriff of the Utah County Jail who oversees the day-to-day operations of the facility where Mr. Chairez is held; Jeh Johnson, the Secretary of Homeland Security and head of DHS;2 and Loretta Lynch, the U.S. Attorney General and head of the Department of Justice, which encompasses the BIA and the IJs as subunits of the Executive Office of Immigration Review.3
In his habeas petition, Mr. Chairez argues that his prolonged and continued detention violates the Immigration and Nationality Act ("INA") and his due process rights under the U.S. Constitution. Specifically, Mr. Chairez contends that the INA does not authorize prolonged mandatory detention under 8 U.S.C. § 1226(c) without a constitutionally adequate bond hearing. Mr. Chairez therefore seeks an individualized, constitutionally adequate bond hearing before a neutral adjudicator to determine whether his continued detention is necessary.4
The Government has authority to detain aliens during removal proceedings. Chavez – Alvarez v. Warden York Cty. Prison , 783 F.3d 469, 472 (3d Cir.2015) (citing Wong Wing v. United States , 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ). Up until the late 1980s, the Attorney General had authority to release aliens during their removal proceedings at his or her discretion. Reid v. Donelan , Nos. 14–1270, 14–1803, 14–1823, 819 F.3d 486, 492-93, 2016 WL 1458915, at *3 (1st Cir.2016) (citing Demore v. Kim , 538 U.S. 510, 519, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ). But Congress became concerned that "significant numbers of aliens convicted of serious crimes were taking advantage of their release on bond as an opportunity to flee, avoid removal, and commit more crimes." Chavez – Alvarez , 783 F.3d at 472–73 (citing Demore , 538 U.S. at 518–19, 123 S.Ct. 1708 ). In response to this problem, Congress enacted 8 U.S.C. § 1226(c), "which requires the Attorney General to take...
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