Diaz-Ceja v. McAleenan
| Decision Date | 02 July 2019 |
| Docket Number | Civil Action No. 19-cv-00824-NYW |
| Parties | JOEL DIAZ-CEJA, Petitioner, v. KEVIN McALEENAN, Respondent. |
| Court | U.S. District Court — District of Colorado |
This matter comes before the court on Petitioner Joel Diaz-Ceja's ("Petitioner" or "Mr. Diaz-Ceja") Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("the Petition"). [#7, filed April 26, 2019]. The then-presiding judge, the Honorable Gordon P. Gallagher, issued an Order to Show Cause ordering Respondent, the then-Secretary for Homeland Security Kirstjen Nielsen ("the Secretary" or "Respondent") to show cause why Petitioner is not being illegally detained. [#8]. The Secretary filed a Response on May 23, 2019 [#21] and Petitioner filed a Reply on June 10, 2019. [#23]. The undersigned presides over this case pursuant to 28 U.S.C. § 636(c), the parties' consent [#16], and the Order of Reference dated May 20, 2019[#18]. For the reasons stated in this Memorandum Opinion and Order, the Petition for Habeas Corpus is GRANTED IN PART and DENIED IN PART.
Mr. Diaz-Ceja is a thirty-three-year-old Mexican citizen resident in the United States and currently subject to removal proceedings. [#7 at ¶ 1]. He arrived without inspection as a child in May 1991 and has lived in the United States since that time. [Id. at ¶ 2]. In 2016,3 Mr. Diaz-Ceja entered into a deferred judgment for Transporting a Controlled Substance in violation of Nevada Revised Statute § 453.321 ("the drug offense"). [Id.]. Following his plea, Petitioner entered a diversionary program under a deferred judgment. [Id.; #21-2 at 5]. On March 9, 2017, while checking in with his probation officer, he was detained and issued a Notice to Appear ("the Notice" or "NTA") by officers from the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). [Id.; #21-1 at 2; #21-17 at ¶ 6]. The Notice did not have a date and time for Mr. Diaz-Ceja's appearance at further proceedings. [#7 at 15].
Mr. Diaz-Ceja was initially detained pursuant to ICE's discretion to detain an alien under 8 U.S.C. § 1226(a), which provides "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." He then requested a bond redetermination hearing before an Immigration Judge ("IJ") before the Executive Office for Immigration Review ("EOIR") to seek his release pending removal proceedings. [#21-17 at ¶ 8; #21-3 at 2]. The IJ denied bond on April 11, 2017. In doing so, the IJ did not find that he was required to hold Mr. Diaz-Ceja pending a removal decision because he was inadmissible due to his conviction relating to a controlled substance as defined by 21 U.S.C. § 802. Instead, the IJ concluded that Petitioner did not meet his burden of proving that he is not a danger to the community and in fact finding that Mr. Diaz-Ceja's drug offense rendered him a per se danger to the community. [#21-3 at 3]. Mr. Diaz-Ceja appealed the denial of his request to change his custody status to the Board of Immigration Appeals ("BIA"). [#21-17 at ¶ 9; #21-4]. The BIA rejected Petitioner's appeal. [#21-4 at 3].
On June 6, 2017, Mr. Diaz-Ceja appeared before an IJ for a hearing on the merits of his immigration status and he was ordered removed to Mexico. [#21-5 at 2-3]. Mr. Diaz-Ceja conceded removability based on the fact that he had entered without permission [#21-6 at 7-8], but sought relief from removal based on asylum, withholding of removal, and under the Convention Against Torture. The IJ denied his requests for relief, finding him ineligible based on his conclusion that Mr. Diaz-Ceja's drug offense qualified as an "aggravated felony." [#21-5; #21-6]. Petitioner again appealed to the BIA which again denied relief in an order dated September 5, 2017, rejecting Mr. Diaz-Ceja's argument that his deferred judgment did not qualify as a conviction for immigration law purposes. [#21-6 at 6]. Petitioner then sought review in the UnitedStates Court of Appeals for the Ninth Circuit ("Ninth Circuit") which issued a temporary stay of removal pending a decision on the matter before it. [#21-7 at 2 (the stay)]. While this review was pending and pursuant to governing law in the Ninth Circuit, ICE conducted an evaluation of Petitioner's detention and decided not to release Mr. Diaz-Ceja pending the Ninth Circuit's review. [#21-8 at 2].
Mr. Diaz-Ceja then again requested bond redetermination before an IJ and was again denied relief on December 18, 2017. [#21-9 at 2-3]. Less than a month later, Mr. Diaz-Ceja made the same request with the same result. [#21-10 at 2]. Petitioner then appealed this January decision to the BIA which dismissed the appeal on June 29, 2018. [#21-11 at 2]. In the interim, Petitioner was transferred to his current facility, the "GEO CDF," in Aurora, Colorado, and the Ninth Circuit issued a formal stay of removal pending review. [#21-12 at 2; #21-17 at ¶ 18].
On August 3, 2018, Mr. Diaz-Ceja filed a motion to reopen and terminate removal proceedings which was denied. [#21-13 at 2-3]. The BIA affirmed on April 9, 2019 because Petitioner's drug offense constituted an aggravating felony which rendered him ineligible for cancellation of removal and the motion to reopen was untimely in any event. [#21-14 at 2-3]. On February 19, 2019, the Government sought remand from the Ninth Circuit for the BIA to consider intervening changes in caselaw that might alter the effect of Petitioner's drug conviction upon his immigration status.4 [#21-15]. The Ninth Circuit granted the remand to the BIA on April 22,2019. [#21-16]. As discussed at the Status Conference held June 6, 2019, the briefing before the BIA is ongoing and Petitioner is not currently subject to an order of removal. [#22].
Mr. Diaz-Ceja filed the present Application for Habeas Corpus on March 19, 2019. [#1]. After an initial screening process was held, the court twice ordered Mr. Diaz-Ceja to file amended Petitions. On April 26, 2019, Mr. Diaz-Ceja filed the operative Amended Application for Writ of Habeas Corpus ("Petition"). [#7]. In the Petition, he identifies three claims: (1) a violation of the due process guaranteed by the Fifth Amendment, arguing that "due process requires that the government establish, at an individualized hearing before a neutral decision maker, that Petitioner's detention is justified by clear and convincing evidence of flight risk and danger, even after consideration whether alternatives o [sic] detention could sufficiently mitigate that risk;" (2) a violation of the prohibition against excessive bail under the Eighth Amendment; and (3) termination of removal proceedings for lack of jurisdiction based on the lack of specific time and date for removal proceedings on the NTA. [#7 at 5]. The court subsequently issued an Order to Show Cause to the Government to demonstrate why Petitioner's continuing detention was not illegal. [#8]. The matter was then drawn to the undersigned Magistrate Judge who presides pursuant to 28 U.S.C. § 636(c) with the Parties' consent. [#16, #18]. Briefing is now complete [#21; #23], and thus, the court turns to the merits of the instant Petition.
This Court may review a petition for writ of habeas corpus on the ground that 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). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for immigration detention unrelated to a final order of removal. See Carbajal v. Holder, 43F. Supp. 3d 1184, 1186 (D. Colo. 2014) (citing Demore v. Kim, 538 U.S. 510, 517-18 (2003)). Relevant here, a detainee may bring a habeas petition under this section if his or her confinement violates the Fifth Amendment's guarantee of due process. See, e.g., Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1212 (10th Cir. 2009).
It is well established that the Fifth Amendment entitles noncitizens5 to due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903)); Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893) (). Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Id. (quoting Jones v. United States, 463 U.S. 354, 361 (1983)); see also Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (). Case law emphasizes that due process usually requires that the Government bears the burden of proving facts to justify civil detention. Zadvydas v. Davis, 533 U.S. 678, 692 (2001); Foucha, 504 U.S. at 80; Addington v. Texas, 441 U.S. 418, 431-33 (1979).
Because it is significant to this court analysis, the court first considers the framework of detention pending removal generally, and then the specific basis for Petitioner's Detention. Section 1226(a) of Title 8 of the United States Code provides that a noncitizen "may be arrested and detained pending a...
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