Leke v. Hott

• Decision Date: 23 February 2021
• Docket Number: No. 1:20-cv-1382,1:20-cv-1382
• Citation: 521 F.Supp.3d 597
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Douglas LEKE Petitioner, v. Russell HOTT, et al. Respondents.

521 F.Supp.3d 597

Douglas LEKE Petitioner,

v.Russell HOTT, et al. Respondents.

No. 1:20-cv-1382

United States District Court, E.D. Virginia, Alexandria Division.

Signed February 23, 2021

Irina Manelis, Manelis Law PLLC, Glen Allen, VA, Jennifer Kwon, Legal Aid Justice Center, Richmond, VA, Simon Yehuda Sandoval-Moshenberg, Simon Sandoval Moshenburg, Legal Aid Justice Center, Fall Church, VA, for Petitioner.

Hugham Chan, US Attorney's Office, Alexandria, VA, for Respondents Russell Hott, William P. Barr.

John Michael Erbach, Kasey Leigh Hoare, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.

MEMORANDUM OPINION

T. S. Ellis. III, United States District Judge

Petitioner, an arriving alien from Cameroon seeking asylum in the United States, has been detained at the Farmville Detention Center by Immigration Customs Enforcement ("ICE") for the past 24 months, without a bond hearing, pending the outcome of Petitioner's asylum application. At issue now is Petitioner's habeas petition, seeking chiefly:

(1) a declaration that Petitioner's prolonged detention of indefinite duration without a bond hearing violates the Fifth Amendment's Due Process Clause; and

(2) an Order directing Respondents to schedule a prompt bond hearing before an Immigration Judge, at which time the Immigration Judge will determine,

(i) whether Petitioner must continue to be detained pending the outcome of Petitioner's asylum application or his removal, if necessary, or

(ii) whether Petitioner may be released on conditions that would reasonably assure Petitioner's appearance at subsequent immigration proceedings and the safety of the community.

Respondents oppose the requested relief and seek dismissal of Petitioner's habeas petition, arguing that Petitioner, as an arriving alien without valid entry documents, has no Fifth Amendment Due Process right to a bond hearing, despite his already-prolonged detention and despite his indefinite future detention. The matter has been fully briefed and the issues raised by the Petition have been adequately addressed by the parties' briefing. Accordingly, oral argument is dispensed with and the matter is now ripe for disposition.

I.

The following pertinent facts are derived from the record in this case.

• Petitioner, approximately 30 years old, is a native and citizen of Cameroon.

• Petitioner is appropriately classified as an "arriving alien," as Petitioner is a foreigner without valid entry documents who has applied for admission to the United States.¹

• Respondents are (i) Russell Hott, ICE Field Office Director for the Washington D.C. area, (ii) Jeffrey Crawford, Superintendent of the Farmville Detention Center, and (iii) William Barr, the former Attorney General of the United States ("Respondents").

• On February 3, 2019, Petitioner arrived at the United States port of entry in San Ysidro, California, seeking initial admission to the United States. Petitioner was not permitted to enter the United States, as Petitioner did not possess valid entry documents.

• On February 7, 2019, at the San Ysidro port of entry, Petitioner spoke with an unidentified immigration officer regarding Petitioner's desire to enter the United States. During this interview, Petitioner expressed his intent to apply for asylum in the United States and his fear that he would be persecuted if he returned to Cameroon. Thus, pursuant to statute,² Petitioner was referred for an interview with an asylum officer, and was also sent to the Farmville Detention Center in Farmville, Virginia.

• On March 29, 2019, an asylum officer at the Farmville Detention Center interviewed Petitioner and determined that Petitioner has a credible fear of persecution in his native country of Cameroon.

• Petitioner's habeas petition provides an overview of Petitioner's asylum claim. Specifically, the Petition asserts that Petitioner is "[a] torture survivor in his native Cameroon" and was "arrested, beat[en], interrogated, and imprisoned" in Cameroon by unspecified Cameroonian government officials who falsely "believed that [Petitioner] was an Anglophone separatist." Pet. ¶¶ 8, 12 (Dkt. 1); Pet'r Decl. ¶¶ 2–4 (Dkt. 1-2). The Petition also asserts that unnamed Cameroonian government officials set fire to and destroyed Petitioner's home in Cameroon. See Pet. ¶ 12.

• On May 8, 2019, Petitioner appeared before an Immigration Judge by videoconference to adjudicate his asylum claim. This hearing was continued to allow Petitioner to retain legal counsel.

• On June 6, 2019, Petitioner appeared before an Immigration Judge by videoconference, this time represented by counsel. At this hearing, Petitioner sought (i) asylum in the United States, (ii) withholding of removal from the United States, and (iii) protection under federal regulations implementing the Convention Against Torture.

• In July 2019, Petitioner provided testimony to the Immigration Judge in support of Petitioner's asylum claim.

• On August 22, 2019, the Immigration Judge denied Petitioner's asylum claim and entered a removal order.

• On September 19, 2019, Petitioner appealed the Immigration Judge's decision and removal order to the Board of Immigration Appeals ("BIA").

• On March 9, 2020, the BIA dismissed Petitioner's appeal. Thereafter, on April 6, 2020, Petitioner filed a petition for review of the Board's dismissal with the U.S. Court of Appeals for the Fourth Circuit. SeeLeke v. Wilkinson , No. 20-1393 (4th Cir. 2020).

• On May 28, 2020, Petitioner filed a motion with the Fourth Circuit to stay the Immigration Judge's removal order pending the Fourth Circuit's decision in Petitioner's case.

• On June 10, 2020, a Fourth Circuit panel denied Petitioner's motion to stay in a one-sentence Order without elaboration.

• On October 6, 2020, Petitioner filed a second motion to stay the Immigration Judge's removal order with the Fourth Circuit. This time, a different Fourth Circuit panel reviewed Petitioner's motion to stay, and on October 8, 2020, the motion was granted.³ Thus, execution of Petitioner's August 22, 2019 removal order is currently stayed, and Petitioner remains detained at the Farmville Detention Center.⁴

• The Fourth Circuit has not yet issued a merits decision in Petitioner's case. Oral argument in that matter is scheduled for March 11, 2021.

• On November 11, 2020, Petitioner filed the instant habeas petition before this Court.

II.

The question presented by the Petition is whether Petitioner, an arriving alien already detained for 24 months pending review of an asylum application, has a Fifth Amendment Due Process right to a bond hearing given that his already-extended 24-month detention has no certain end in sight. As a preliminary matter, it is worth noting that the parties disagree on the proper statutory basis for Petitioner's detention as an arriving alien without valid entry documents under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq. This dispute is easily resolved, and in any event is not central to the Fifth Amendment claim presented by the Petition. Simply put, Petitioner, an arriving alien, is currently detained under 8 U.S.C. § 1225(b), applicable to arriving aliens, as Petitioner arrived at a port of entry in February 2019 and did not receive permission to enter the general United States population. The Supreme Court in these circumstances has made clear that § 1225(b) applies to arriving aliens, and that this provision both authorizes and governs detention of arriving aliens "throughout the completion of applicable [removal] proceedings." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 845, 200 L.Ed.2d 122 (2018). Here, there can be no dispute that Petitioner is an arriving alien and that Petitioner's removal proceedings have not yet concluded in light of (i) the Fourth Circuit's pending review of Petitioner's asylum claim and (ii) the Fourth Circuit's Order staying the Immigration Judge's removal order. See, e.g., Djelassi v. ICE Field Office Dir. , 434 F. Supp. 3d 917, 928–29 (W.D. Wash. 2020) (applying Jennings to conclude that § 1225(b) governs detention of arriving aliens until "both administrative and judicial proceedings are finalized"). Ultimately, the conclusion that Petitioner is detained as an arriving alien under § 1225(b)⁵ is not central to the constitutional question presented here: namely, whether an arriving alien already detained for 24 months pending review of an asylum application has a Fifth Amendment Due Process right to a bond hearing or some other process given that his already-extended 24-month detention has no certain end in sight.

Analysis of Petitioner's Fifth Amendment Due Process claim properly begins with the recognition that the Fifth Amendment, by its terms, applies here. This conclusion follows from the terms of the Fifth Amendment that state that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Because an alien is a "person," Wong v. United States , 163 U.S. 228, 237–38, 16 S.Ct. 977, 41 L.Ed. 140 (1896) and because detention of a person without any sort of process is a deprivation of that person's bodily "liberty," an arriving alien subject to prolonged and indefinite detention is detained in violation of the Fifth Amendment.⁶

Although neither party has cited controlling Supreme Court or circuit authority, only a moment's reflection is needed to confirm that the Fifth Amendment applies to arriving aliens in this respect. Consider that, if the Fifth Amendment did not apply to protect against prolonged and indefinite detention, then an arriving alien could thus be held without a bond hearing for 5 years, 10 years, or even life. Surely, no one would argue that prolonged and indefinite detention of this sort is constitutionally appropriate.

The parties' citations to Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) and Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), two foundational cases on alien detention,...