De la Cruz v. United States

• Decision Date: 07 January 2021
• Docket Number: Case No.: 2:20-cv-01712-APG-NJK
• Parties: Elsa Victoria de la Cruz, Petitioner, v. The United States of America, et al., Respondents.
• Court: U.S. District Court — District of Nevada

Elsa Victoria de la Cruz, Petitioner, v. The United States of America, et al., Respondents.

Case No.: 2:20-cv-01712-APG-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

January 7, 2021

Order Granting Habeas Relief

On September 16, 2020, petitioner Elsa Victoria de la Cruz filed a habeas corpus petition under 28 U.S.C. § 2241 seeking relief from her continued detention by Immigration and Customs Enforcement (ICE). ECF No. 1. I grant the petition.

BACKGROUND

Born on November 1, 1982, de la Cruz is a native and citizen of Mexico who lawfully entered the United States in 1984 as a nonimmigrant B-1/B-2 visitor in 1984. ECF No. 1 at ¶ 7. On January 13, 2020, de la Cruz was arrested by Las Vegas police on an outstanding warrant and transferred to ICE custody, where she currently remains. Id. at ¶ 34.

I. Criminal Proceedings

Between July 2018 and August 2019, de la Cruz was involved in three instances of domestic violence with her ex-husband that resulted in intervention by the Las Vegas police. ECF No. 1 at ¶¶ 24-39. In each of those instances, she was the initial aggressor or at least a mutual combatant. Id. As a result, de la Cruz was convicted in state court on three counts of battery and one count of trespassing. Id.; ECF No. 11-3 at 4-5.

II. Immigration Proceedings

On January 14, 2020, the Department of Homeland Security (DHS) initiated removal proceedings against de la Cruz. ECF No. 1 at ¶ 37. She was initially charged with removability under Immigration and Naturalization Act (INA) § 212(a)(6)(A)(i), as an alien present in the United States without inspection. Id. at ¶ 38.

On February 10, 2020, de la Cruz filed a motion for bond reconsideration asking to be released on a $5,000 bond. Id. at ¶ 44. After a hearing on February 20, 2020, the immigration judge (IJ) denied de la Cruz's request for release on bond based on a "finding that she had not met her burden of proving she is not a danger to the community." ECF No. 11-3 at 4. In relevant part, the IJ's decision states:

A detained alien requesting release on bond bears the burden of proving by clear and convincing evidence that she does not pose a danger to the community and is not a flight risk. Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006); 8 C.F.R. § 1236.1(c)(3). In Matter of Guerra, the Board made clear that the Court "has extremely broad discretion in deciding whether or not to release an alien on bond." 24 I&N Dec. at 39. The Board provided an extensive, but not exhaustive, list of factors that the Court may consider when determining whether an alien should be released on bond. Id. at 39-40. These factors include, among other things, the alien's family ties in the United States and the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses. Id at 40. The Court "may choose to give greater weight to one factor over others, as long as the decision is reasonable." Id.

Here, the Court considered the Respondent's three domestic violence arrests between 2018 and 2019. The Respondent admitted that each of these arrests resulted from physical altercations between the Respondent and her former husband. According to evidence in the record, two of those arrests resulted in a conviction for simple battery, while one remains pending before the state court.

After considering all evidence in the record, the Court found that the Respondent's demonstrated recidivism, the recency of her arrests, and the inherent dangerousness of her crimes, altogether establish that she represents a danger to the community. See Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009) ("An Immigration Judge should only set bond if [she] first determines that the alien does not present a danger to the community."). The Court recognizedthe Respondent's ties to the United States, including five United States citizen, minor children. However, the Court found that these facts do not outweigh the danger the Respondent poses to the community. Accordingly, the Court found that Respondent's ongoing detention is justified and denied her request for bond.

ECF No. 11-3 at 4-5.

Also on February 20, 2020, de la Cruz filed an application for cancellation of removal and adjustment of status for certain non-permanent residents. ECF No. 1 at ¶ 44. A hearing on that application was scheduled for July 31, 2020. Id.

At a hearing on April 2, 2020, de la Cruz established an inspected admission in response to DHS's original charge. Id. at ¶ 39. The DHS conceded an inspected entry and amended its notice to appear to charge de la Cruz with removability under INA § 237(a)(1)(B), as an alien present in the United States after admission as a nonimmigrant under section 101(a)(15) of the Act, who remained in the United States for a time longer than permitted. Id. She conceded the charge. Id.

On April 14, 2020, de la Cruz filed an appeal of the denial of bond with the Board of Immigration Appeals (BIA). Id. at ¶ 46.

On July 31, 2020, the IJ denied de la Cruz's application for cancellation of removal for certain non-permanent residents. Id. at ¶ 41. She appealed that denial to the BIA on August 28, 2020. Id. at ¶ 42.

On November 3, 2020, the BIA dismissed de la Cruz's appeal of the IJ decision denying her request for release on bond. ECF No. 15-1. In relevant part, the BIA's decision states:

The respondent was placed into the custody of the DHS on or about January 14, 2020. On February 10, 2020, she filed a motion seeking a change in her custody status. On February 20, 2020, the Immigration Judge issued an order denying the respondent's motion, because the respondent's convictions on two counts of battery reflected that she posed a danger and should be held at no bond. The respondent appealed that determination, arguing that the convictions are notindicative of her dangerousness because they are limited to the context of contested divorce and custody proceedings with her ex-husband and that she has no other convictions. (Respondent's Br. at 8-12; 16-22). She also contends on appeal that the Immigration Judge improperly placed the burden of proof on her to prove that she is not dangerous, when the burden actually lies with the DHS. Id. at 14, 17. Finally, she contends that she is eligible for relief from removal. Id at 12-13.

We will adopt and affirm the Immigration Judge's decision for the reasons stated in the March 32, 2020, bond memorandum. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). We find no clear error in the Immigration Judge's underlying factual findings and affirm the resulting conclusion that the convictions are indicative of danger. Moreover, the respondent's argument that the Immigration Judge imposed an improper burden of proof is misplaced. In bond proceedings arising under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. §1226(a), the respondent bears the burden of proving that she does not pose a danger to the community or a flight risk that cannot be mitigated by the imposition of reasonable bond. See Matter of Adenji, 22 I&N Dec. 1102, 111].13 (BIA 1999). The cases cited by the respondent that stand for the proposition that the DHS should bear this burden apply only where an alien has been subjected to prolonged detention or where the imposition of this standard is otherwise dictated by court order.

Id. at 3.

III. Federal Habeas Proceedings

De la Cruz presents a single ground for relief in her federal habeas petition: a violation of her rights under the Fifth Amendment's Due Process Clause based on her ongoing detention without a constitutionally sufficient bond hearing. ECF No. 1 at 24-25. According to de la Cruz, her bond hearing was deficient because the IJ placed the burden of proof on her to demonstrate that she was not a flight risk or a danger to the community instead of requiring the DHS to make the reverse showing by clear and convincing evidence. Id. at 14-25. In her request for relief, she asks this court to, among other things, grant a writ of habeas corpus directing the respondents to immediately release her from custody or order a new bond hearing in which the governmentbears the burden of proof to show, by clear and convincing evidence, that she is presents a flight risk or a danger to the community. Id. at 25-26.

The respondents moved to dismiss the petition, arguing that de la Cruz failed to exhaust her administrative remedies, the IJ applied the correct burden of proof at the bond hearing and correctly found her to be a danger to the community, and de la Cruz's continued detention is constitutional. ECF No. 11. I denied the motion without prejudice until de la Cruz exhausted her administrative remedies with respect to the bond determination. ECF No. 14 at 5. After the BIA issued the decision excerpted above, I lifted the stay and directed the respondents to show cause why habeas relief should not be granted, considering this court recently granted relief in a factually similar case raising a similar challenge. ECF No. 17 (citing Vargas v. Wolf, Case No. 2:19-cv-02135-KJD-DJA, 2020 WL 1929842, (D. Nev. Apr. 21, 2020). The respondents have filed their response to the order to show cause (ECF No. 18), and de la Cruz has replied (ECF No. 19).

DISCUSSION

I. Federal Habeas Jurisdiction

Federal district courts may grant a writ of habeas corpus when a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A non-citizen petitioner held in custody under removal proceedings may "bring collateral legal challenges to the Attorney General's detention authority ... through a petition for habeas corpus." Casas-Castrillon v. DHS, 535 F.3d 942, 946 (9th Cir. 2008). Federal district courts have habeas jurisdiction under § 2241 to review "bond hearing determinations for constitutional claims and legal error." Singh v. Holder, 638 F.3d 1196, 1200 (9th Cir. 2011) (citing Demore v. Kim, 538 U.S. 510, 516-17 (2003)). Although the...