Perez v. McAleenan

• Decision Date: 23 January 2020
• Docket Number: Case No. 5:19-cv-05191-EJD
• Court: U.S. District Court — Northern District of California
• Parties: Mario Alexander IXCHOP PEREZ, Petitioner, v. Kevin MCALEENAN, et al., Respondents.

435 F.Supp.3d 1055

Mario Alexander IXCHOP PEREZ, Petitioner,

v.Kevin MCALEENAN, et al., Respondents.

Case No. 5:19-cv-05191-EJD

United States District Court, N.D. California, San Jose Division.

Signed January 23, 2020

Jennifer Taylor Friedman, San Francisco Public Defenders Office, San Francisco, CA, for Petitioner.

Pamela T. Johann, United States Attorney's Office, San Francisco, CA, for Respondents.

Re: Dkt. No. 1

ORDER GRANTING WRIT OF HABEAS CORPUS

EDWARD J. DAVILA, United States District Judge

Mario Alexander Ixchop Perez, a noncitizen, has been detained by the U.S. Government pursuant to 8 U.S.C. § 1226(a) since January 23, 2018. During his detention, his applications for relief from removal and his subsequent appeals have moved through the legal system. Here, he petitions the court for the writ of habeas corpus on the grounds that the Immigration Judge who denied him bond violated both section 1226(a) and Due Process. This court finds that the Immigration Judge's order was contrary to Ninth Circuit precedent. The court will issue the writ and will order the Government to provide Mr. Ixchop with another bond hearing within 21 days of the date of this order. At this hearing, the Government shall bear the burden of showing by clear and convincing evidence that Mr. Ixchop is either a flight risk or that he poses a danger to the community.

I. Background

Mr. Ixchop is a 38-year old citizen of Guatemala. Declaration of Nino Gagelonia ("Gagelonia Decl.") ¶ 4. He entered the United States without being inspected, admitted, or paroled. Id. He has primarily lived in San Francisco since 1996. See id. ; Ex. G at 6. He attended Mission High School for three years. Ex. G at 6.¹ He married a U.S. citizen in 2014, and they have three young children who are U.S. citizens. Id.

Mr. Ixchop has a criminal record stemming from alcohol abuse, though he represents that he is in recovery. Between 2009 and 2015, he was arrested and convicted of DUI five times. Ex. G at 7-8; Gagelonia Decl. ¶¶ 5-7, 9-10; Ex. 1 at 3-6. He served time in jail for all of the convictions. Gagelonia Decl. ¶¶ 5-7, 9-10; Ex. 1 at 3-6. His final arrest for DUI came on October 18, 2015. Ex. G at 8; Ex. 1 at 6. His first four convictions were for misdemeanors; his final was a felony conviction. Ex. g at 7-8; Ex. 1 at 3-6. He represented to the Immigration Judge at his bond hearing—and represents to this court—that he has been sober since the 2015 arrest. Ex. G at 8-11; Pet. ¶¶ 33-34. After being released from custody for the 2015 arrest, he enrolled in the Dry Zone DUI Program at the Mission Council on Alcohol Abuse. Ex. G at 51. The director of the program represented in a letter dated February 20, 2018, that his progress and prognosis were both "good," and that he had a tentative discharge date of January 23, 2019. Id. While in detention, he has graduated from Phases I and II of the Deciding, Educating, Understanding, Counseling, and Evaluation substance abuse program. Id. at 55-56. He also participated in the Men and Woman of Purpose self-help rehabilitation service. Id. at 58-59. At his bond hearing, he introduced a psychological evaluation conducted by Dr. Caroline Salvador-Moses. Id. at 2, 32-46. She concluded that he presented a "low" risk of reoffending. Id. at 42, 46. He represented to the Immigration Judge that, if released, he would enroll in an ankle bracelet alcohol monitoring program. Id. at 11, 63-72.

In April 2014, Immigrations and Customs Enforcement officers arrested Mr. Ixchop, and he was placed in removal proceedings. Gagelonia Decl. ¶ 8. He was released the same day on $1,500 bond. Id. ¶ 11. On January 23, 2018, ICE officers arrested him while he was reporting for an interview with immigration officials. Gagelonia Decl. ¶ 11. They determined that he had violated the conditions of his release on bond and that he posed a danger to the public. Id. They detained him under 8 U.S.C. section 1226(a).² Id. ¶ 13. On June 29, 2018, he appeared for a bond hearing. Ex. A at 1. The Immigration Judge issued an order holding, in relevant part, that "the respondent carries the burden of demonstrating: (1) he is not a danger to the community; and (2) he is not a flight risk." Id. The Immigration Judge then found that Mr. Ixchop "currently presents a danger to the community as he presents a very clear danger to other people. Respondent has fairly recent and multiple convictions for driving under the influence of alcohol." Id. at 2. The Immigration Judge did not find him to be a flight risk. See id. The Immigration Judge ordered Mr. Ixchop to be detained without bond. Id. at 2. Mr. Ixcop appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. Ex. B.

On October 5, 2018, Mr. Ixchop appeared by video teleconference at an individual merits hearing on his applications for relief from removal. Gagelonia Decl. ¶ 18. The Immigration Judge denied his applications and ordered him removed to Guatemala. Ex. K. He appealed to the Board of Immigration Appeals ("BIA"). Ex. L. The BIA dismissed his appeal on May 6, 2019. Id. He then filed a petition for review and motion for stay of removal with the Ninth Circuit. Ex. M. Those applications remain pending. Pet. ¶ 40. On August 8, 2019, he filed a motion for a custody re-determination hearing under Casas-Castrillon v. Dep't of Homeland Sec. , 535 F.3d 942 (9th Cir. 2008), arguing that he faced prolonged detention. Ex. Q. The Immigration Judge denied the motion. Ex. R. While Mr. Ixchop was initially detained at the West Contra Costa County Jail in Richmond, California, in August 2018 the Government transferred him to Denver Contract Detention Facility in Aurora, Colorado in August 2018. Ex. E.

Mr. Ixchop remains in detention under section 1226(a). He filed this petition on August 20, 2019. The parties stipulated to a briefing schedule, the Government filed a return to the petition, and Mr. Ixchop filed a traverse. The court finds this matter suitable for resolution without oral argument.

II. Jurisdiction

Under federal statute, a district court is authorized to grant a writ of habeas corpus when petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). With respect to noncitizens though, the REAL ID Act of 2005 ("RIDA") provides that "all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226 ] shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1251(b)(9). In other words, noncitizens may not petition district courts for the writ of habeas corpus to challenge issues "arising" from their removal proceedings. Alvarez v. Sessions , 338 F. Supp. 3d 1042, 1047 (N.D. Cal. 2018) (Davila, J.). With respect to bond determinations, federal law provides that "[n]o court may set aside any action or decision by the Attorney General ... regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." 8 U.S.C. § 1226(e). RIDA though does not strip district courts of jurisdiction to hear habeas petitions concerning issues collateral or ancillary to removal proceedings. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 840-41, 200 L.Ed.2d 122 (2018) ; see also Casas-Castrillon , 535 F.3d at 946 ("Even post-RIDA, aliens may continue to bring collateral legal challenges to the Attorney General's detention authority ... through a petition for habeas corpus."). Section 1226(e) "precludes an alien from challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release. But § 1226(e) "does not preclude challenges to the statutory framework that permits the alien's detention without bail." Jennings , 138 S. Ct. at 841 (quotations, citation, and alteration omitted). Because Mr. Ixchop brings his petition to challenge the statutory and constitutional validity of his bond hearing, the court finds that it has jurisdiction to consider it.

While Mr. Ixchop is physically detained in Colorado, his proceedings continue before the Immigration Court in San Francisco, California. Ex. F. Neither party objects to this venue. The court finds that venue is appropriate in the Northern District of California.

III. Administrative Exhaustion

The government argues that if Mr. Ixchop's circumstances have changed to warrant a new bond hearing, then the court should dismiss the petition for his failure to exhaust his administrative remedies. It contends that he should have moved for a second custody redetermination hearing based on changed circumstances under 8 C.F.R. § 1003.19(e). The court disagrees because his petition is not based on a theory of changed circumstances, but rather on the theory that the Immigration Judge misapplied the burden of proof. He has already appealed the Immigration Judge's denial of bond to the BIA. Mr. Ixchop has sufficiently exhausted his administrative remedies.

IV. Discussion

Mr. Ixchop makes two arguments in support of his petition. First, he argues that his initial bond hearing violated section 1226(a) and/or the Due Process Clause of the Constitution. Second, he contends that his detention has been so prolonged that Due Process entitles him to a new bond hearing. The court finds that his bond hearing was constitutionally deficient, so the court does not address his second argument.

a. Section 1226(a)

Although section 1226(a) does not address the allocation of the burden of proof in bond proceedings, Mr. Ixchop contends that the statutory context and legislative intent demonstrate that the Government, not the noncitizen, should bear the burden of showing that the noncitizen is either a flight risk or a danger to the community. Section 1226(a) provides in full:

(a) Arrest, detention, and

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