Petgrave v. Aleman

Decision Date29 March 2021
Docket NumberCIVIL ACTION NO. 5:20-CV-34
Citation529 F.Supp.3d 665
Parties Adrian PETGRAVE, Petitioner, v. Javier ALEMAN, Respondent.
CourtU.S. District Court — Southern District of Texas

Adrian Petgrave, Pro Se.

Annalisa L. Cravens, Ariel Nicole Wiley, United States Attorney's Office, Houston, TX, for Respondent.


Diana Saldaña, United States District Judge

The Department of Homeland Security (DHS) detained Petitioner Adrian Petgrave ("Petitioner"), a Jamaican native who claimed asylum after unlawfully crossing the Rio Grande River as an arriving alien over nineteen months ago. Under the Immigration and Nationality Act ("INA"), arriving aliens seeking asylum are not entitled to bond hearings or are typically released from custody. But four months before Immigration and Customs Enforcement (ICE) processed Petitioner for detention, another district court entered a nationwide injunction requiring the Government to provide aliens like Petitioner a bond hearing before an immigration judge. See Padilla v. U.S. Immigr. & Customs Enf't , 387 F.Supp.3d 1219, 1232 (W.D. Wash. 2019), aff'd in relevant part , 953 F.3d 1134, 1141 (9th Cir. 2020), vacated ––– U.S. ––––, 141 S.Ct. 1041, 208 L.Ed.2d 513 (2021). Sixteen months and five Court orders for supplemental briefing later, Petitioner received a bond hearing as part of the Court's enforcement of the national Padilla injunction.

At that bond hearing, the Immigration Judge1 denied Petitioner bond. Twelve days later, the Supreme Court vacated the Ninth Circuit's order and lifted the national injunction with instructions to consider the Court's 2020 decision in Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S.Ct. 1959, 207 L.Ed.2d 427 (2020). Petitioner now complains that his bond hearing before the Immigration Judge was deficient and asks the Court to order his immediate release or hold a bond hearing itself.2 (See, e.g. , Dkt. 74 at 6.) In addition, Petitioner argues that the COVID-19 pandemic makes his continued confinement in immigration detention unconstitutional.

This case primarily concerns whether the Fifth Amendment's Due Process Clause entitles Petitioner, who is mandatorily detained under the INA, to immediate release or, in the alternative, a bond hearing in federal court. After carefully reviewing the applicable statutory structure, Thuraissigiam , binding Supreme Court precedent, and other relevant caselaw, the Court holds that Petitioner's detention, even without a bond hearing, comports with due process. Moreover, the Court concludes that Petitioner's conditions of confinement claim is not cognizable in habeas.

Factual & Procedural Background
A. Factual History

Petitioner is a forty-three-year-old Jamaican native who was born and raised in Negril, Jamaica. (Dkt. 1 at 20.) Petitioner attended some college in the United States under a valid student visa in 2004, and his wife and two children—all of whom reside in the United States—are U.S. citizens. (Id. ; Dkt. 25, Attach. 1 at 5.)3 However, Petitioner did not complete his college studies. On April 24, 2006, Petitioner was convicted of felony burglary and theft after stealing three projectors from a classroom. (Dkt. 25, Attach. 2 at 3; Id. , Attach. 8 at 5–7; Id. , Attach. 9 at 7.) Petitioner's student visa expired in 2009. (Id. , Attach. 3 at 2.) Though he was placed in removal proceedings, immigration authorities allowed him to voluntarily depart the country in 2011. (Id. , Attach. 2 at 3–4; Id. , Attach. 4 at 1–2.)

B. Apprehension at the Border & Initial Processing

Petitioner, who identifies as bisexual, fled Jamaica in late 2017 and embarked on a long journey to the United States after being the victim of homophobic attacks.4 (Dkt. 1 at 20–21.) Petitioner eventually made it to Mexico and crossed the Rio Grande River into the United States in June of 2019. (Id. at 20–22.) Soon after, a Border Patrol Agent apprehended him at approximately 5:10 a.m. near Brownsville, Texas—a town adjacent to Matamoros, Mexico. (Dkt. 25, Attach. 5 at 4.)

At some point, Petitioner admitted to the agent that he swam across the Rio Grande and lacked any valid immigration documents allowing him to legally be or remain in the United States. (Id. ) Because he crossed into the country at "a place not designated as a port of entry" and lacked valid entry documents, DHS determined that Petitioner was an "inadmissible" noncitizen under the INA. (Id. at 5.) As a result, DHS concluded that Petitioner was "subject to removal" and processed him for expedited removal under § 1225(b)(1) of the INA. (See id. ) That section empowers immigration officers to expeditiously remove inadmissible noncitizens "without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution."5 8 U.S.C. § 1225(b)(1)(A)(i). However, while inadmissible noncitizens are generally not entitled to heightened administrative review due to their imminent removal, those who express a fear of persecution or torture receive administrative review of their claims—in the form of a credible fear interview with an asylum officer—before they can be removed. 8 U.S.C. § 1225(b)(1)(A)(ii) ; 8 C.F.R. § 235.3(b)(4).

C. Credible Fear Interview

Because Petitioner expressed a fear of persecution, the immigration officer referred him for an interview with an asylum officer. (See Dkt. 25, Attach. 5 at 5.) During the interview, the asylum officer found that Petitioner demonstrated a credible fear of persecution. (Dkt. 1 at 17–18.) Under the INA, a positive credible fear finding shifts the noncitizen into more formal removal proceedings. See 8 U.S.C. § 1225(b)(1)(B)(ii) ; 8 C.F.R. §§ 208.30(f), 235.6(a)(1).

After Petitioner's credible fear finding, DHS issued him a Notice to Appear for removal proceedings. (Dkt. 25, Attach. 6 at 2.) The notice stated that Petitioner was "an alien present in the United States who ha[d] not been admitted or paroled." (Id. ) The notice further stated:

[I]t is charged that you are subject to removal from the United States pursuant to the following provisions of law:
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border cross card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.
Section 212(a)(6)(A)(i) of the Act, as amended, as an alien present in the United States without being admitted or paroled , or who has arrived in the United States at any time or place other than as designated by the Attorney General.

(Id. (emphasis added).) See also 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (a)(6)(A)(i).

D. Asylum Hearing

On November 19, 2019, Petitioner filed his I-589 Application for Asylum and for Withholding of Removal form. (Dkt. 25, Attach. 7 at 10.) Due to the positive credible fear screening and his pending asylum claim, DHS could not remove Petitioner until an immigration court granted him asylum relief or issued a final order of removal. See 8 U.S.C. § 1231(a)(1)(B)(i).

On January 23, 2020, the Immigration Judge held a hearing on the merits of Petitioner's asylum claim. (Dkt. 25, Attach. 9 at 2.) The Immigration Judge found that Petitioner's college-era criminal convictions for felony theft and burglary statutorily barred him from receiving asylum and a withholding of removal under both the INA and the Convention Against Torture. (Id. at 6–7.) Despite finding Petitioner "generally credible," the Immigration Judge further determined that he had "not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground." (Id. at 7.) For these reasons, the Immigration Judge "sustained" the charges of removability "lodged in the Notice to Appear"—that is, that Petitioner was removable on account of being an inadmissible noncitizen. (See id. at 11–12.) Petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA) on February 21, 2020. (Dkt. 1 at 4–5.) His appeal remains pending, and he has been detained continuously since entering DHS custody.6

E. Commencement of Habeas Action

On March 5, 2020, Petitioner filed his first Petition for a Writ of Habeas Corpus (Dkt. 1),7 which he later amended, challenging (1) the constitutionality of his continued detention without a bond hearing pending the outcome of his asylum case under the Fifth Amendment's Due Process Clause; and (2) the conditions of his confinement brought about by the COVID-19 pandemic.8 (Dkt. 1.) In its motion to dismiss (Dkt. 24), the Government raised the statutory basis for Petitioner's detention. (Id. at 17.) Citing Petitioner's prior convictions, the Government asserted that DHS was mandatorily detaining Petitioner pursuant to 8 U.S.C. § 1226(c) —an assertion it would repeat in subsequent filings. (Id. ; see also Dkt. 30 at 7.)

Petitioner contested the Government's classification of his detention under § 1226(c) and further argued that even aliens held pursuant to § 1226(c) were nevertheless constitutionally entitled to a bond hearing. (Dkt. 39 at 1–2.) The Government submitted a second motion to dismiss and once again argued that Petitioner was not statutorily entitled to a bond hearing because he was mandatorily detained pursuant to § 1226(c) due to his past criminal convictions. (Dkt. 41 at 5–6.) The Government further argued that Petitioner was not entitled to release under Zadvydas v. Davis , 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), a Supreme Court decision holding that aliens subject to an administratively final order of removal could not be detained indefinitely.9 (Id. at 4–5.)

F. Petitioner's Class Membership and the Pre-existing National Injunction

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