Ibarra-Perez v. Howard

• Decision Date: 22 June 2020
• Docket Number: No. CV-20-00739-PHX-DWL,CV-20-00739-PHX-DWL
• Citation: 468 F.Supp.3d 1156
• Parties: Jorge IBARRA-PEREZ, Petitioner, v. Chris HOWARD, et al., Respondents.
• Court: U.S. District Court — District of Arizona

468 F.Supp.3d 1156

Jorge IBARRA-PEREZ, Petitioner,

v.Chris HOWARD, et al., Respondents.

No. CV-20-00739-PHX-DWL

United States District Court, D. Arizona.

Signed June 22, 2020

Filed June 23, 2020

Christopher David Thomas, Matthew Luis Rojas, Perkins Coie LLP, Phoenix, AZ, Laura Belous, Florence Immigration & Refugee Rights Project, Tucson, AZ, for Petitioner.

Katherine R. Branch, US Attorneys Office, Phoenix, AZ, for Respondents.

ORDER

Dominic W. Lanza, United States District Judge

Petitioner Jorge Ibarra-Perez (A# 213-351-070), who is detained in the CoreCivic La Palma Correctional Center in Eloy, Arizona, has filed, through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 ("Petition") (Doc. 1) and an Application for Temporary Restraining Order and Order to Show Cause ("TRO motion") (Doc. 14). The matter is fully briefed and nobody has requested oral argument. For the following reasons, the Petition and TRO motion will be denied and this action will be terminated.

BACKGROUND

Petitioner is a 48-year-old native and citizen of Cuba. (Doc. 1 ¶ 1.) In April 2019, believing his life to be in danger, Petitioner flew to Nicaragua and then traveled by car through Honduras, Guatemala, and Mexico. (Id. ¶ 25.) When he arrived in Mexico, he encountered officials from the Mexican Commission for Refugee Aid and was provided with a temporary Mexican humanitarian visa. (Id. ¶ 27.)

On September 14, 2019, Petitioner sought admission to the United States at the DeConcini Port of Entry in Nogales, Arizona, and expressed a fear of persecution or torture if returned to Cuba. (Id. ¶ 28; Doc. 2-3 at 2; Doc. 2-4 at 74; Doc. 14-2 at 69-77.) Petitioner was then taken into custody by the United States Department of Homeland Security ("DHS") and issued a Notice to Appear ("NTA") charging him as inadmissible and removable from the United States as an "arriving alien" not in possession of any valid entry documents. (Doc. 19-4 at 19-21.)

On January 10, 2020, an immigration judge ("IJ") ordered Petitioner removed to Cuba, denied his application for asylum,¹ and granted withholding of removal to Cuba. (Doc. 2-5 at 24-25.) No alternate country of removal was designated and both parties waived appeal of the IJ's decision. (Id. )

On January 15 or 16, 2020, notwithstanding the absence of any specified alternate country of removal, DHS removed Petitioner to Mexico. (Doc. 1 ¶ 31; Doc. 2-5 at 33; Doc. 14-2 at 71.) Petitioner's counsel immediately contacted DHS and was advised by email:

Mr. Ibarra was indeed granted withholding of removal to Cuba. However, he does have valid status in Mexico and was accepted by Mexican immigration authorities.

Also noted below, Mr. Ibarra did not raise any claims of fear of returning to Mexico during his immigration proceedings before [the IJ]. As such, there are/were no impediments to executing his lawful removal order by removing him to Mexico.

(Doc. 2-5 at 31.)

On January 17, 2020, Petitioner, accompanied by counsel, sought admission to the United States at the Mariposa Port of Entry in Nogales, Arizona and expressed a fear of persecution or torture if returned to Mexico. (Doc. 1 ¶ 36; Doc. 2-3 at 2-3; Doc. 14-2 at 71.) Petitioner was again taken into DHS custody, and on January 21, 2020, he was issued "a new Notice to Appear with the same charges as in previous proceedings." (Doc. 1 ¶ 37.)

In response, Petitioner filed "a Motion to Reopen [his] prior proceedings to supplement the record with further information as to his fear of return to Mexico and lack of permanent legal status in that country." (Doc. 2-5 at 33-34.) Although the motion was initially denied as moot, because DHS had issued a second NTA, the IJ subsequently issued an order granting Petitioner's request to terminate his new removal proceeding and reconsider the denial of his motion to reopen. (Doc. 2-5 at 33-34, 39.) The IJ explained:

Reopening is appropriate in light of the implicated due process concerns. See Aden v. Nielsen , 409 F. Supp.3d 998, 1007-10 (W.D. Wash. 2019) (the Department has the authority to designate a country of removal after proceedings have concluded pursuant to INA§ 241(b) and 8 C.F.R. § 1240.12(d) as well as an affirmative obligation to make a determination regarding an alien's claim of fear before deporting him to such country. The due process clause and the governing statute place the burden on the Department-regardless of whether the country of deportation is designated during or after removal proceedings to provide a meaningful opportunity to be heard on asylum and withholding claims regarding any potential country of removal) [¶] Termination of new proceedings related to the January 21, 2020 charging document is appropriate because reopening of the prior proceedings has been granted to adjudicate Respondent's claim of fear of return to Mexico.

(Doc. 2-5 at 36-39.) Petitioner's 2019 removal proceeding was thereby reopened, and his 2020 removal proceeding was terminated. (Id. ) In the interim, Petitioner was detained under 8 U.S.C § 1225(b) and placed in the CoreCivic La Palma Correctional Center ("LPCC") in Eloy, Arizona. (Doc. 1 ¶¶ 38-39.)

On February 26, 2020, Petitioner submitted a request to DHS for his release from custody on humanitarian parole; he has yet to receive a response. (Doc. 1 ¶ 38; Doc. 2-3 at 2-5; Doc. 2-5 at 33.) Petitioner then moved for a redetermination of his custody status. Following a hearing on March 23, 2020, an IJ denied Petitioner's request for release on bond, explaining: "No jurisdiction: [Petitioner] is arriving alien." (Doc. 2-6 at 9-10.) The IJ later issued a memorandum of decision that elaborated:

The Court finds that it lacks jurisdiction to entertain the respondent's request for a change in custody status. [DHS] has classified the respondent as an arriving alien, and the respondent does not contest that classification. The current regulations governing the detention and release of aliens preclude the Court from determining the custody status of arriving aliens in removal proceedings.... Insofar as the respondent's request for a custody hearing is based on a constitutional claim regarding the length of his detention, the Court finds that it does not have jurisdiction over such a claim. In Jennings v. Rodriguez , the United States Supreme Court held that aliens detained pursuant to INA § 235(b)(1)—such as the respondent—are not entitled to periodic bond hearings before an Immigration Judge. In light of this, and considering that the Court's jurisdiction over this matter is not otherwise conferred by the INA or its implementing regulations, the Court is without jurisdiction over the respondent's instant request. As such, the Court will deny the respondent's request for a change in custody status.

(Doc. 14-2 at 79-81 [citations omitted].)

PETITION

In his Petition, Petitioner names LPCC Warden Chris Howard, Acting United States Immigration and Customs Enforcement ("ICE") Phoenix Field Office Director Albert Carter, ICE Phoenix Field Office Assistant Director Cesar Topete, ICE Phoenix Field Office Assistant Director Jason Ciliberti, Acting DHS Secretary Chad Wolf, and United States Attorney General William Barr as Respondents. (Doc. 1 ¶¶ 11-16.) Petitioner asserts five grounds for relief.

In Ground One (which is labeled "Wrongful Detention"), Petitioner contends that his detention violates the Due Process Clause of the Fifth Amendment because he has been awarded withholding of removal to Cuba, his final order of removal did not designate an alternate country of removal, and any further review of his grant of withholding of removal is barred by res judicata. (Id. ¶¶ 114-17.)

In Ground Two ("State-Created Danger"), Petitioner contends that his continued detention violates the Due Process Clause of the Fifth Amendment because Respondents have affirmatively placed him in danger by detaining him in conditions that expose him COVID-19 and have acted with deliberate indifference to that known and obvious danger. (Id. ¶¶ 118-24.)

In Ground Three ("Special Relationship"), Petitioner contends that his continued detention violates the Due Process Clause of the Fifth Amendment because Respondents, who have a "special relationship" with him that requires them to provide reasonable medical care, have detained him in conditions that place him at a substantial risk of exposure to COVID-19. (Id. ¶¶ 125-35.)

In Ground Four ("Punitive Detention"), Petitioner contends that his continued detention violates the Due Process Clause of the Fifth Amendment because the conditions under which he is detained are worse than the conditions under which criminal detainees are held. (Id. ¶¶ 136-41.)

In Ground Five ("Prolonged Detention"), Petitioner contends that his prolonged detention without a custody redetermination hearing violates the Due Process Clause of the Fifth Amendment. (Id. ¶¶ 142-46.)

As for relief, Petitioner asks the Court to: (1) issue a writ of habeas corpus ordering his immediate release from detention or, in the alternative, issue an injunctive order enjoining Respondents from detaining him; (2) order his release from DHS custody unless Respondents schedule a hearing before an immigration judge where, to continue his detention, the government must establish by clear and convincing evidence that Petitioner presents a risk of flight or danger, taking into account available alternatives to detention; (3) declare that his continued detention violates the Due Process Clause; (4) award reasonable costs and attorney's fees pursuant to the Equal Access to Justice Act; and (5) grant any other relief the Court deems proper.

DISCUSSION

I. COVID-19 Claims (Grounds Two, Three, And Four)

A. Factual Background

1. COVID-19

COVID-19, a disease caused by a novel strain of coronavirus (SARS-CoV-2), was declared by the World Health Organization as a global pandemic on March 11, 2020. As of June 22, 2020, nearly 2.3 million individuals had been confirmed positive for COVID-19 in the United States.²

The United States Department...