Duncan v. Kavanagh

• Decision Date: 10 February 2020
• Docket Number: Civil No. CCB-19-1465
• Parties: Howard DUNCAN, Petitioner, v. Jack KAVANAGH, et al., Respondents.
• Court: U.S. District Court — District of Maryland

439 F.Supp.3d 576

Howard DUNCAN, Petitioner,

v.Jack KAVANAGH, et al., Respondents.

Civil No. CCB-19-1465

United States District Court, D. Maryland.

Signed February 10, 2020

Himedes V. Chicas, Law Office of Jezic and Moyse LLC, Michelle N. Mendez, Catholic Legal Immigration Network, Inc, Silver Spring, MD, for Petitioner.

Allen F. Loucks, Vickie LeDuc, Office of the United States Attorney, Baltimore, MD, for Respondents.

MEMORANDUM

Catherine C. Blake, United States District Judge

Petitioner Howard Duncan is currently being detained by the U.S. Department of Homeland Security ("DHS") and U.S. Immigration and Customs Enforcement ("ICE"). He filed a petition for a writ of habeas corpus, challenging his detention on the basis of his claim that he is a U.S. citizen. (Pet., ECF 1). Respondents Jack Kavanagh, Diane Witte, DHS, Kevin McAleenan, Matthew Albence, and William Barr (collectively "the government") filed a response incorporating a motion to dismiss. (Resp'ts' Mot., ECF 6). Duncan filed an opposition and cross motion for summary judgment, (Pet'r's Mot., ECF 8), which the government opposes. (Resp'ts' Opp'n, ECF 11). No oral argument is necessary. For the reasons explained below, Duncan's habeas petition will be granted in part and denied in part, and the court will grant in part and deny in part both motions.

FACTUAL AND PROCEDURAL HISTORY

The following facts are not contested. Duncan was born in Nigeria to a Nigerian mother and American father. At the age of six, Duncan and his grandmother moved from Nigeria to the United States to live with Duncan's father. Duncan lived with his father for approximately three months until, in April 1998, Duncan's father was incarcerated. Shortly thereafter, Duncan's grandmother became his guardian. Throughout Duncan's father's incarceration, which lasted from April 1998 until 2011, father and son remained in contact. Duncan visited his father approximately once a month and spoke with him on the phone several times a week. Duncan's father made certain decisions about his son's upbringing and provided some financial support, but Duncan's grandmother was Duncan's primary caretaker for the duration of his childhood.

In 2009, before his eighteenth birthday, Duncan applied for a certificate of citizenship with the United States Citizenship and Immigration Services ("USCIS"). His application was denied in 2010, and Duncan appealed to the Administrative Appeals Office ("AAO"). The AAO affirmed the denial in February 2015. After the AAO's decision, DHS initiated removal proceedings against Duncan pursuant to 8 U.S.C. § 1227(a)(2), which provides that non-U.S. citizens may be subject to deportation if, inter alia , they are "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct"; convicted of an aggravated felony; or convicted of certain firearms offenses. 8 U.S.C. §§ 1227(a)(2)(A)(ii)–(iii), (C). Duncan had previously been convicted of several crimes that ICE believed made Duncan deportable: In 2008, Duncan pleaded guilty to robbery with a dangerous weapon, and in 2011, Duncan pleaded guilty to possessing a firearm while under age 21 and making a false statement to a police officer.

Duncan filed a motion to terminate his removal proceedings on the basis that he had derived citizenship from his American father under the Child Citizenship Act of 2000 ("CCA"), 8 U.S.C. §§ 1431 – 33, and was consequently not deportable under § 1227, which only applies to noncitizens. The CCA provides that a child born outside the U.S. automatically becomes a U.S. citizen if: (1) the child has at least one parent who is a U.S. citizen; (2) the child is under eighteen years old; and (3) the child lives in the U.S. "in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence." 8 U.S.C. § 1431(a). The immigration judge ("IJ") found that Duncan could not meet the "physical custody" requirement of the CCA, as during the relevant period—between February 27, 2001, when the CCA was enacted, and October 17, 2009, when Duncan turned eighteen—Duncan's father was incarcerated and did not physically care for him.¹ The IJ also rejected Duncan's argument that he was entitled to relief under the Convention Against Torture ("CAT"), finding that Duncan could not make the requisite showing that it was more likely than not that, if deported to Nigeria, he would be tortured. Accordingly, the IJ denied Duncan's motion to terminate removal proceedings, and later denied his motion to reconsider.

Duncan appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision. Duncan then filed a Petition for Review ("PFR") in the Fourth Circuit. The Fourth Circuit granted the petition and found that the BIA applied the wrong standard in reviewing the IJ's findings. See Duncan v. Barr; 919 F.3d 209, 217 (4th Cir. 2019). The case was remanded to the BIA with instructions to apply the correct standards of review to Duncan's CAT and CCA claims. Id. at 214, 217. As of September 5, 2019, Duncan's appeal remains pending at the BIA.²

* * *

Duncan has been held in ICE custody since July 14, 2015. He is being detained pursuant to 8 U.S.C. § 1226(c), which provides for mandatory detention of non-U.S. citizens deemed deportable because of their convictions for certain crimes. Duncan has twice requested that an IJ review his custody status at a so-called Lora bond hearing. In Lora v. Shanahan , which is no longer good law, the Second Circuit held that an individual detained pursuant to § 1226(c) is entitled to a bond hearing before an IJ within six months of his detention, and that unless the government can prove by clear and convincing evidence that the detainee poses a risk of flight or danger to the community, he must be released on bond. 804 F.3d 601, 616 (2d Cir. 2015), vacated , ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018). On February 18, 2016, an IJ in New York, where Duncan was then being held, conducted a bond hearing. On April 4, 2016, the IJ found that the government had carried its burden of showing that Duncan posed a risk of danger to the community and denied Duncan's request for release on bond. Duncan appealed the decision, which was affirmed by the BIA. Duncan's second request for Lora review was denied on October 18, 2017.

Duncan is currently being held at the Elizabeth Contract Detention Facility in New Jersey, but at the time Duncan filed his habeas petition, he was being held in solitary confinement at the Howard County Detention Center in Jessup, Maryland. Accordingly, venue is proper in this court pursuant to 28 U.S.C. §§ 1391(b)(2) and (e)(1)(B).

Duncan's habeas petition raises four due process claims: (1) unlawful detention of a U.S. citizen; (2) detention of a U.S. citizen for civil immigration purposes in violation of internal ICE policy; (3) prolonged detention without adequate review; and (4) unlawful punitive civil detention, as evidenced by Duncan's placement in solitary confinement. Duncan's fourth claim is now moot, as he is no longer in solitary confinement. (Resp'ts' Mot. at 21; Pet'r's Mot. at 4). Duncan seeks immediate release from custody.

In its motion to dismiss, the government argues that the court is without subject matter jurisdiction to consider Duncan's citizenship claim. But even if the court does have subject matter jurisdiction, the government argues, Duncan is unable to show that he derived U.S. citizenship from his father. The government further argues that Duncan has failed to state a claim of unreasonably prolonged detention. In his cross motion for summary judgment, Duncan argues that the court does have jurisdiction to hear the citizenship claim. In the alternative, he argues that any statute that strips the court of jurisdiction to hear Duncan's citizenship claim is unconstitutional. Duncan asserts that he is entitled to judgment as a matter of law that (1) he is a U.S. citizen being illegally detained and (2) that his detention has been unreasonably prolonged. As an alternative to immediate release, Duncan requests, in his motion for summary judgment, that the court mandate a bond hearing.

STANDARD OF REVIEW

Motion to Dismiss:

A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) "addresses whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of his claim." Holloway v. Pagan River Dockside Seafood, Inc. , 669 F.3d 448, 452 (4th Cir. 2012). The plaintiff bears the burden of establishing subject matter jurisdiction. Demetres v. East West Const., Inc. , 776 F.3d 271, 272 (4th Cir. 2015). A defendant may challenge subject matter jurisdiction in two ways: (1) "by attacking the veracity of the allegations contained in the complaint;" or (2) "by contending that, even assuming that the allegations are true, the complaint fails to set forth facts upon which jurisdiction is proper." Durden v. United States , 736 F.3d 296, 300 (4th Cir. 2013). When a defendant uses the latter method to contest subject matter jurisdiction, the plaintiff "is afforded the same procedural protection as he would receive under Rule 12(b)(6) consideration." Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ).³

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."

Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). "To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements."...