Garza-Garcia v. Moore

• Decision Date: 18 October 2007
• Docket Number: Civil No. B-07-067.
• Parties: Juan J. GARZA-GARCIA, Petitioner, v. Marc MOORE, et al., Respondent.
• Court: U.S. District Court — Southern District of Texas

539 F.Supp.2d 899

Juan J. GARZA-GARCIA, Petitioner, v. Marc MOORE, et al., Respondent.

Civil No. B-07-067.

United States District Court, S.D. Texas, Brownsville Division.

October 18, 2007.

Elisabeth Lisa S. Brodyaga, Attorney at Law, San Benito, TX, for Petitioner.

Rene Carlo Benavides, U.S. Attorney's Office, Southern District of Texas, McAllen, TX, for Respondent.

OPINION

FELIX RECIO, United States Magistrate Judge.

Before the Court is Plaintiff Juan Jose Garza-Garcia's Claim for Declaratory Judgment and his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Petitioner Garza-Garcia alleges that he is currently being detained in violation of the laws and Constitution of the United States by virtue of his mandatory detention without an opportunity to contest his designation as the type of alien subject to mandatory detention pursuant to 8 C.F.R. § 1003.19(2)(i)-(ii) (2007). For the reasons set forth below, this court GRANTS Petitioner's writ.

MAGISTRATE JUDGE'S JURISDICTION

This case was transferred from United States District Judge Hilda Tagle to United States Magistrate Judge Felix Recio pursuant to 28 U.S.C. § 636(c). All parties have waived their right to proceed before a district judge, and consented, to have a U.S. Magistrate Judge conduct all proceedings, including trial and judgment. (Doc. 8).

BACKGROUND

Petitioner Juan Jose Garza-Garcia is currently detained by Immigration and Customs Enforcement ("ICE") at Los Fresnos, Texas. He is a native of Mexico and a lawful permanent resident ("LPR") of the United States. On December 7, 2004 Garza sought admission into the Unit ed States at a port of entry in Brownsville, Texas, and was detained based on an outstanding military charge of being absent without leave ("AWOL"). At the time he was detained, a Customs and Border Patrol ("CBP") Officer prepared and served on Garza a Notice to Appear ("NTA"), charging him with removability as an arriving"alien who was inadmissable for having departed the U.S. to avoid training or service in the armed forces, within the meaning of 8 U.S.C. § 1182(a)(8)(B). (Doc. 1-2, Exhibit A, pgs. 3-4). At this time Garza was transferred into military custody, where he was court-martialed and convicted of AWOL. He was sentenced to time served, about 70 days, given a "bad conduct" discharge, and released. Garza returned to Brownsville in February of 2005, where he resumed his job with Garcia Trucking. (Doc. 4).

For reasons not entirely clear,¹ Garza presented himself at Immigration and Naturalization Service's ("INS") Harlingen office on October 10, 2006. There he was arrested and held on a $5,000 bond pursuant to 8 U.S.C. § 1226. At this time, INS prepared a "Record of Deportable/Inadmissable Alien," form 1-213, which stated that the "NTA was amended and is included in the A-File." See Pet's Writ of Habeas Corpus, Exhibit A, at 7-8. (Doc. 1-2, pg. 7-8). However, this amended NTA has never been filed. The Notice of Custody Determination, form 1-286, also prepared on October 10, 2006, advised Garza that he was being taken into custody pursuant to Section 236 of the Immigration and Nationality Act (8 U.S.C. § 1226) and that he was eligible for a bond re-determination hearing. See Pet's Writ of Habeas Corpus, Exhibit A, at 7. (Doc. 1-2, pg. 7).²

Garza requested a bond re-determination hearing and a hearing was held on October 16, 2006. However, the Immigration Judge ("IJ") found that, pursuant to 8 C.F.R. § 1003.19(2)(ii),³ he lacked jurisdiction to determine whether Garza was properly designated an "arriving alien," and because Garza was so designated he had no authority to re-determine Garza's bond.⁴ Thereafter, Garza posted the $5,000 bond, was released, and was given a copy of his Warrant for Arrest of Alien, form 1-200, marked "for identification purposes only" and stamped "bond posted."⁵ Garza remained out on bond until May 21, 2007, when he appeared before Immigration Judge Peterson for a scheduled hearing on the merits of the initial charge of removability.⁶ At the beginning of the hearing, Garza was served with an Additional Charge of Inadmissability/Deportability, form 1-261, alleging that he was removable as a criminal alien for having committed a crime of moral turpitude under Section 212(a)(2)(A)(i)(I) of the INA (8 U.S.C. § 1227(a)(2)(A)(i)(I)). See Pet's Writ for Habeas Corpus, Exhibit A, at 12-13. Garza's lawyer requested time to address the new charge, and the case was adjourned.

The new charge made Mr. Garza subject to mandatory detention as a criminal alien pursuant to 8 U.S.C. § 1226(c), and ICE agents arrested him and sent him to the Port Isabel Detention Center where he remains currently without bond. On June 29, 2007, Immigration Judge Peterson ruled on the merits in Garza's removal proceedings. Judge Peterson found for Garza on both charges of removability, finding that AWOL was not a crime of moral turpitude and that Garza had not departed the U.S. to avoid training or service in the military, and therefore terminated the removal proceedings. See Pet's Writ of Habeas Corpus, Exhibit F. (Doc. 15). However, on July 18, 2007, DHS filed an appeal of the IJ's decision to the Board of Immigration Appeals ("BIA"), legally rendering the IJ's order not final and preventing Garza's release. See Pet's Writ of Habeas Corpus, Amended Exhibit G. (Doc. 16). In its Notice of Appeal, form EOIR-26, DHS asserted the IJ's decision on the merits of both issues was erroneous, argued for the BIA to overturn or distinguish a prior decision holding that desertion during a time of war was not a crime of moral turpitude, and requested that a three-member panel hear the appeal. Id.

On August 6, 2007, Petitioner Garza filed another motion for a bond re-determination hearing with the Immigration Court. The Immigration Judge again denied his request for change in custody status based on Garza's designation on the original NTA as an "arriving alien." See Pet's Writ of Habeas Corpus, Exhibit H. Petitioner has since filed a Motion for Summary Judgment with this court, the government has filed a Response, and Petitioner has filed a Reply to the government's Response.⁷ This Court held a hearing on the matter on October 2, 2007, where it stated that it was strongly leaning towards granting the relief requested by Garza. On October 16, 2007 this Court received notice from Garza's counsel that the BIA had issued an opinion dismissing DHS's appeal and affirming the Immigration Judge's ruling. See Pet's Writ for Habeas Corpus, Ex. J. (Doc. 25). Counsel for the Petitioner informed the Court through a Declaration Under Penalty of Perjury that Garza was still detained and that an officer at the detention center informed Counsel that a decision had been made to continue detaining Mr. Garza-Garcia because it anticipated a motion to reconsider the decision of the BIA would be filed. See Petr.'s Writ for Habeas Corpus, Ex. J. (Doc. 26). As of today, more than two weeks after the BIA decision, Petitioner remains in custody.

ALLEGATIONS

Petitioner alleges that 8 C.F.R. § 1003.19(2)(ii), which allows for his mandatory detention without the right to a hearing to challenge whether he is properly within the category of alien that subjects him to mandatory detention, is in consistent with the statutory scheme. Petitioner argues that the regulation must be interpreted to allow a hearing to contest a designation that subjects one to mandatory detention, or in the alternative, that the regulation must be over turned as inconsistent with Section 1226 and/or a violation of both substantive and procedural due process. We address both arguments in turn.

JURISDICTION

This court has proper habeas jurisdiction over this matter under Section 2241, because it involves a question of the Attorney General's statutory authority and the legality of an administrative agency's regulatory framework. Section 1226(e) strips a federal court of jurisdiction to review discretionary judgments of the Attorney General, however it does not remove jurisdiction to determine questions of law regarding the AG's statutory authority or the regulatory framework. See 8 U.S.C. § 1226(e) (2007); see also, e.g., Oyekunmi v. Chertoff, 125 Fed.Appx. 543 (5th Cir.2005); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

Garza's continued detention clearly does not involve a discretionary decision of the Attorney General. Two different immigration judges have held they lack the authority to exercise their discretion on Garza's behalf based on the regulation at hand, and numerous other immigration judges have reached the same conclusion in other cases based on this regulation.⁸ This Court retains jurisdiction to review Garza's detention "insofar as that, detention presents constitutional issue, such as those raised in a habeas petition." Oyelude, 125 Fed.Appx. at 546, (citing Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)).

As another threshold matter, this Court must also address the government's contention that this action is premature because Petitioner has not yet exhausted his administrative remedies. Since making this argument the Board of Immigration Appeals has ruled on Petitioner's behalf. The Court has been informed that the government plans to file a motion to reconsider the decision, and if such a motion were filed the IJ's order would continue to lack finality and administrative exhaustion would not be complete. To the extent that the Government's argument that the administrative process should conclude before a federal court hears the habeas petition is not moot, the Court notes that administrative exhaustion is inappropriate here. See Defs.' Resp. to Petr.'s Mot. for Summ. J. at 3 (Doc. 22); Resp.'s Br. on Administrative Remedies (Doc. 13).

It is well settled that federal law generally requires exhaustion of administrative remedies before a petitioner may seek habeas relief. See, e.g., Dilworth v. Johnson, 215...