Gahano v. Renaud
| Decision Date | 07 July 2021 |
| Docket Number | C20-1094-MJP-MLP |
| Court | U.S. District Court — Western District of Washington |
| Parties | DENGE LEMO GAHANO, Petitioner, v. DANIEL M. RENAUD, et al., Respondents. |
REPORT AND RECOMMENDATION
Petitioner Denge Leme Gahano (“Petitioner”) brings this 28 U.S.C. § 2241 habeas action to obtain release from U.S Immigration and Customs Enforcement (“ICE”) custody at the Northwest ICE Processing Center (“NWIPC”) or a bond hearing. (Am. Pet. (Dkt. # 9).) Petitioner centrally alleges he is entitled to release because his detention by ICE has become indefinite within the meaning of Zadvydas v. Davis, 533 U.S. 678, 701 (2001) and that his second bond hearing violated his right to due process. (See Pet.'s Traverse (Dkt. # 47) at 7-11.) Respondents have moved to dismiss, arguing Petitioner has failed to show his detention is indefinite and that he is lawfully detained. (Resp.'s Mot. (Dkt. # 16) at 10-17.)
Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends Respondents' motion to dismiss (dkt. # 16) be GRANTED, Petitioner's amended habeas petition (dkt. # 9) be DENIED, and that this action be DISMISSED with prejudice.
Petitioner is a native and citizen of Ethiopia, who was admitted to the United States as a refugee on September 17, 1991. (Dkt. # 16-4 at 8.) On November 13, 1992, he became a permanent resident of the United States, retroactive to September 17, 1991. (Id.) In July 2012, a jury in the State of Oregon found Petitioner guilty of multiple domestic violence-related charges involving his ex-wife and the use of a firearm. (Dkt. # 16-7 at 1-3.) On September 17, 2012, Petitioner was sentenced to five-years imprisonment based on his unlawful use of a weapon constituting domestic violence, with lesser sentences to run consecutively on his remaining charges. (Dkt. # 16-9 at 2.)
On March 13, 2017, Petitioner was released to ICE custody, served with a notice to appear for removal proceedings, and transferred to the NWIPC. (Dkt. # 16-4 at 8.) At that time, Petitioner was charged with removability as a non-citizen convicted of an aggravated felony crime of violence under 8 U.S.C. §§ 1101(a)(43)(F), as defined by 18 U.S.C. § 16(a), and 1227(a)(2)(A)(iii), based upon his 2012 Oregon convictions. (Id.) On March 14, 2017, an immigration judge (“IJ”) ordered no bond and mandatory detention under 8 U.S.C. § 1226(c). (Dkt. # 16-10 at 1.)
On October 31, 2017, the immigration court held a first bond hearing, pursuant to Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), because Petitioner's detention under § 1226(c) exceeded six months. (Dkt. # 16-2 at 3-10.) On December 29, 2017, an IJ issued a written decision finding Petitioner presented a danger to the community and a flight risk, and that he should not be released on bond. (Dkt. # 16-2 at 7-10.) Petitioner filed an appeal of the IJ's bond decision, which the Board of Immigration Appeals (“BIA”) dismissed as untimely on February 2, 2018. (Dkt. # 16-2 at 2.) On March 27, 2018, an IJ ordered Petitioner removed to Ethiopia and denied his requests for relief from removal. (Dkt. # 16-4 at 19-20.)
On April 20, 2018, Petitioner filed a pro se appeal of the IJ's decision sustaining his charge of removability with the BIA. (Dkt. # 16-4 at 2-6.) Petitioner additionally filed a motion to reopen and remand based on allegedly new evidence supporting his relief application. (Dkt. # 16-4 at 5-6.) On September 17, 2018, the BIA issued Petitioner a final order of removal, dismissed his appeal, and denied his motion to reopen and remand. (Id. at 2-6.)
On October 15, 2018, Petitioner filed a petition for review of the BIA's removal determination to the Ninth Circuit, with a motion for stay, and the Ninth Circuit granted Petitioner a temporary stay of removal. (Dkt. # 16-1 at ¶ 14; see Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 1.) On October 18, 2018, Petitioner filed a motion for reconsideration with the BIA. (Dkt. # 16-5 at 2-3.) On August 2, 2019, the Ninth Circuit's stay of removal became a formal stay. (See Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 20.) On January 24, 2019, the BIA denied Petitioner's motion for reconsideration. (Dkt. # 16-5 at 2-3.)
During his removal proceedings, Petitioner additionally sought to readjust his status with a waiver of inadmissibility under 8 U.S.C. § 1182(h) pursuant to Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014). Petitioner's son filed an I-130 visa petition seeking an adjustment of Petitioner's status in September 2017. (Dkt. 39-1 at 1.) However, Petitioner's I-130 visa petition was not approved until November 2, 2018, after both the immigration court and BIA denied Petitioner's requests for relief. (Dkt. 16-5 at 2-3.) In addition, the BIA specifically noted in its January 24, 2019 decision that there was no evidence demonstrating extreme hardship to a qualifying relative for readjustment of Petitioner's status pursuant to a § 1182(h) waiver. (Id. at 3.)
On February 19, 2019, Petitioner filed a second petition for review of the BIA's decision on his motion for reconsideration to the Ninth Circuit with a request for a stay of removal. (Dkt. # 16-1 at ¶ 16; see Gahano v. Barr, No. 19-70403 (9th Cir.), Dkt. # 1.) On May 8, 2019, the immigration court held a second bond hearing, pursuant to the preliminary injunction in Aleman Gonzalez v. Sessions, 325 F.R.D. 616 (N.D. Cal. 2018), because Petitioner's detention under 8 U.S.C. § 1231(a) exceeded six months. (Dkt. # 16-3 at 4.) On June 6, 2019, the IJ issued a written decision finding DHS met its burden of establishing Petitioner's release would present a danger to the community and, therefore, he should not be released on bond. (Dkt. # 16-3 at 7-9.)
On August 2, 2019, the Ninth Circuit consolidated Petitioner's petitions for review and appointed him pro bono counsel in both cases. (See Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 20; Gahano v. Barr, No. 19-70403 (9th Cir.), Dkt. # 9.) Petitioner appealed the IJ's May 8, 2019 order denying his request for bond, and on December 30, 2019, the BIA dismissed his appeal. (Dkt. # 16-3 at 2-3.) On January 20, 2020, Petitioner filed a motion to reconsider the BIA's December 30, 2019, decision dismissing his appeal, which the BIA denied on May 29, 2020. (Dkt. # 16-1 at ¶¶ 19-20.)
On July 15, 2020, Petitioner, proceeding pro se, filed his first habeas petition and his first motion seeking an emergency stay of removal in this Court. (Dkt. ## 1-2.) The Court denied Petitioner's first motion because he failed to demonstrate he satisfied the factors required to obtain a stay. (Dkt. # 5.) On August 6, 2020, Petitioner filed a second motion seeking an emergency stay of removal and an amended habeas petition. (Dkt. # 7; Am. Pet.) Petitioner's amended habeas petition generally alleges his detention without bond is unlawful because: (1) he had been held without bond or release for over 40 months; (2) his convictions were in violation of the Sixth Amendment pursuant to Ramos v. Lousiana, 140 S.Ct. 1390 (2020); (3) he is innocent of his crimes of conviction; (4) the IJ violated his due process rights by considering an “out-of-court perjured letter” in finding he was a danger to the community at his second bond hearing; and (5) his inability to readjust his status through his approved relative petition violates his constitutional rights. (See id. at 2-3, 5-8.) The Court denied Petitioner's second motion for a stay because Petitioner failed to support his request for relief with substantive argument. (Dkt. # 11.) On August 10, 2020, Petitioner filed a third motion for a stay of removal. (Dkt. # 12.) The Court denied that request as well because Petitioner was subject to a stay of removal by the Ninth Circuit at that time. (Dkt. # 15.)
On August 10, 2020, the Ninth Circuit held oral argument on Petitioner's consolidated petitions for review. (See Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 60; Gahano v. Barr, No. 19-70403 (9th Cir.), Dkt. # 50.) On August 17, 2020, Respondents filed their return memorandum and motion to dismiss asserting Petitioner is not entitled to habeas relief because his detention has not violated due process. (Dkt. # 16.) On September 10, 2020, the Ninth Circuit Court of Appeals denied Petitioner's petitions for review of his final order of removal. (Dkt. # 27; see Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 61; Gahano v. Barr, No. 19-70403 (9th Cir.), Dkt. # 51.) On October 16, 2020, Petitioner filed a response to the Respondent's return memorandum. (Dkt. # 22.) On November 2, 2020, the Ninth Circuit issued a mandate terminating his stay of removal. (Dkt. # 27; see Gahano v. Barr, No. 18-72796 (9th Cir.), Dkt. # 64; Gahano v. Barr, No. 19-70403 (9th Cir.), Dkt. # 54.) On November 9, 2020, Petitioner filed a fourth motion for stay of removal to this Court. (Dkt. # 25.)
On November 2, 2020, ICE presented Petitioner with a blank application for Ethiopian travel documents and asked him to complete and sign it. (Dkt. # 51-1 at ¶ 6.) Petitioner refused to fill out the application or sign it that day. (Id.) Petitioner was then presented with the application again on November 3, 2020, November 18, 2020, and on January 8, 2021, but continued to refuse to sign or fill out the application. (Dkt. # 31 at 1-2; Dkt. # 51-1 at ¶¶ 7, 10, 12.) On January 22, 2021, Petitioner signed the application for travel documents. (Dkt. # 51-1 at ¶ 17.)
On January 26, 2021, the Court appointed Petitioner pro bono counsel based on Petitioner's habeas petition potentially raising novel issues related to the application of Ramos to Petitioner's case. (Dkt. # 33.) On March 1, 2021, Petitioner's pro bono counsel filed a...
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