Al-Sadeai v. U.S. Immigration & Customs Enforcement ("ICE")
| Decision Date | 18 May 2021 |
| Docket Number | CASE NO. 21-cv-00296-GPC-MDD |
| Citation | 540 F.Supp.3d 983 |
| Parties | Abdulkareem Taher Ahmed AL-SADEAI, Petitioner, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"); Tae D. Johnson, Acting Director for ICE; U.S. Department of Homeland Security ("DHS"); David Peter Pekoske, Acting Secretary of DHS; John D. Holliday, Counsel for DHS; U.S. Customs and Border Protection ("CBP"); Troy A. Miller, Acting Commissioner of CBP; Executive Office of Immigration Review ("EOIR"); Jean King, Acting Director of the EOIR; Federal Bureau of Investigations ("FBI"); Christopher A. Wray, Director for the FBI; Jason J. Beachy, Special Agent in Charge of the San Diego FBI Field Office; John Doe 1, FBI San Diego Agent; John Doe 2, FBI San Diego Agent; Respondents. |
| Court | U.S. District Court — Southern District of California |
Julie Goldberg, Goldberg & Associates, Bronx, NY, for Petitioner.
U.S. Attorney CV, U.S. Attorneys Office, Civil Division, San Diego, CA, for Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
[ECF No. 1.]
Petitioner Abdulkareem Taher Ahmed Al-Sadeai1 ("Petitioner"), a person detained at the Imperial Regional Detention Facility in the custody of the U.S. Department of Homeland Security, Immigration and Customs Enforcement, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Petition"2 ) arguing that his continued detention and bond redetermination hearing violates his rights under the Due Process Clause and Equal Protection component of the Fifth Amendment. On March 19, 2021, Respondent Immigration and Customs Enforcement ("ICE" or "the Government") filed a response to the petition. On May 12, 2021, Petitioner filed a reply. For the reasons that follow, the Petition is GRANTED .
Petitioner is a citizen of Yemen who is currently detained at the Imperial Regional Detention Facility in Calexico, California. ECF No. 1 ¶¶ 26, 52.3 In 2009, Petitioner began working for the Qatar Embassy in Yemen as a driver for the ambassador of Qatar. Id. ¶ 43. In December 2012, while driving the ambassador of Qatar, Petitioner accidentally hit a Houthi leader,4 causing the leader serious injury. Id. Petitioner later worked at the United States embassy in Yemen as a security guard for a contracted security company. Id. ¶ 45. On approximately June 1, 2015 and again multiple times thereafter, Petitioner was kidnapped and attacked by Houthis who had discovered he was the driver who had hit the Houthi leader and had worked for the Qatar and United States embassies. Id. ¶¶ 46. Fearing for his life, Petitioner attempted to move to southern Yemen, but discovered there was no safe place for him to live because individuals from northern Yemen are automatically taken to the police station and then turned over to the Houthis. Id. ¶ 47. On about November 23, 2019, Petitioner left Yemen with the intent to seek asylum in the United States. Id. ¶ 48.
On November 1, 2020 Petitioner attempted to enter the United States without inspection near Calexico, California. Id. ¶ 49; ECF No. 3-1 at 2. Petitioner was apprehended and placed in expedited removal proceedings. ECF No. 1 ¶¶ 50, 52; ECF No. 3-1 at 4. Petitioner was subsequently detained at the Imperial Regional Detention Facility. ECF No. 1 ¶ 52. During this time, Petitioner received a credible fear interview5 and the asylum officer determined that Petitioner had stated a credible fear of persecution or torture on the basis of political opinion. ECF No. 1-2 at 35–40, Exh. G. Petitioner was thereafter placed in removal proceedings under 8 U.S.C. § 1182. ECF No. 3-1 at 5.
On January 7, 2021, ICE rendered its custody determination and determined Petitioner would be detained pursuant to 8 U.S.C. § 1226(a) and simultaneously denied Petitioner parole. ECF No. 1-2 at 44–48, Exh. I. On January 21, 2021, Petitioner appeared for a bond redetermination hearing before an Immigration Judge ("IJ"). ECF No. 1 ¶ 60. Petitioner had previous bond hearings scheduled,6 but the Government had received a continuance to conduct further investigation, which included a Federal Bureau of Investigation ("FBI") interview of Petitioner in custody. Id. ¶¶ 56, 58. At the hearing, the Government submitted a memorandum from the FBI that stated that Petitioner claims to be from Sana'a Yemen, an area of Yemen that "has been known as a security concern due to multiple terrorist organizations fighting for control of the capital." ECF No. 1-4, Exh. K ("FBI Memo"). The memorandum also stated that from 2017 to 2019, Petitioner lived in Hadhramaut, Yemen, an "area of Yemen known as an al-Qa'ida in the Arabian Peninsula stronghold, which requires a higher level of suspicion and investigation of the people from the locale." Id. Additionally, the memorandum noted that the FBI required additional time to analyze information from Petitioner's email and cell phone and that several circumstances impacted the FBI's "ability to conduct a timely thorough assessment of [Petitioner] in the interest of national security." Id. The memorandum concluded by noting that the FBI supported continuing to detain Petitioner while it completes the assessment. Id. Petitioner presented evidence in support of his request for bond in the form of financial statements, documents supporting his family ties, and declarations from family members, and highlighted that Petitioner has no criminal history. ECF No. 1-2 at 49–92; ECF No. 1-3, Exh. J.
The IJ denied Petitioner's request for bond. ECF No. 1-4 at 7–9, Exh. L ("IJ Ord."). The IJ explained his reasoning in a short order, explaining that:
National security concerns raised by the Government and investigation is ongoing. Court cites Carlson v. Landon 342 U.S. 524 [72 S.Ct. 525, 96 L.Ed. 547 (1952)] and Matter of Patel, 15 I&M 666. Respondent has not carried his burden to show not a danger to community or threat to national security.
Id. On January 28, 2021, Petitioner appealed the bond redetermination decision to the Board of Immigration Appeals ("BIA"). ECF No. 3-1 at 20–23; ECF No. 4-2 at 7 n.9. After Petitioner appealed, the IJ more fully set forth his reasoning for the denial of bond in a bond memorandum issued February 1, 2021. ECF No. 3-1 ("IJ Bond Memo") at 16–19. In the bond memorandum, the IJ reiterated that "[a] respondent in a custody hearing under section 236(a) of the Immigration and Nationality Act must establish to the satisfaction of the immigration judge that he does not present a danger to persons or property, is not a threat to national security and does not pose a risk of flight." Id. at 16. The IJ applied Matter of Guerra , 24 I&N Dec. 37 (BIA 2006), and determined that Petitioner poses a national security concern and alternatively is "an extreme flight risk." Id. at 16–17. The IJ considered the FBI memorandum as well as Petitioner's lack of fixed address, length of residence, and employment history in the United States. Id. at 17. The IJ also noted that Petitioner's lawful permanent resident and U.S. citizen relatives would be unable to extend immigration benefits to him, that Petitioner had not presented a sponsor with sufficient income or with whom he had sufficiently strong ties, and that Petitioner had entered the United States illegally after making intricate travel arrangements despite having a clear understanding of legal immigration procedures. Id. at 17–18.
The BIA has not yet rendered a decision on Petitioner's appeal of the IJ decision and Petitioner remains detained. ECF No. 1 ¶ 62; ECF No. 4-2 at 2.
Under 28 U.S.C. § 2241, federal courts have jurisdiction to hear habeas corpus petitions from noncitizens claiming they are held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 28 U.S.C. § 2241(c)(3) ). District courts do not have jurisdiction to review final orders of removal or discretionary decisions made by the Attorney General, but do have jurisdiction to decide statutory or constitutional challenges to their civil immigration detention and review bond hearings for legal or constitutional error. See id. at 687–88, 121 S.Ct. 2491 ; Puri v. Gonzales , 464 F.3d 1038, 1041–42 (9th Cir. 2006) ; Singh v. Holder , 638 F.3d 1196, 1202 (9th Cir. 2011).
As Petitioner's appeal of the IJ's bond redetermination decision is pending at the BIA, the Government argues that this Court should dismiss or stay Petitioner's habeas challenge on prudential grounds. ECF No. 3 at 9. Petitioner asserts that he need not exhaust administrative remedies in these circumstances. ECF No. 4-2 at 7–8.
"When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused." Leonardo v. Crawford , 646 F.3d 1157, 1160 (9th Cir. 2011). However, administrative exhaustion by those seeking relief under § 2241 is a prudential, not jurisdictional, prerequisite in the Ninth Circuit, and can thus be waived. Hernandez v. Sessions , 872 F.3d 976, 988 (9th Cir. 2017). Futility is one of the grounds for waiver. Laing v. Ashcroft , 370 F.3d 994, 1000 (9th Cir. 2004). An action is futile if the BIA's view is "already set" or the outcome is "very likely." El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review , 959 F.2d 742, 74748 (9th Cir. 1991) ().
Here, Petitioner's appeal of his denial of bond is pending before the BIA. However, it is "very likely" that the BIA will affirm the IJ decision as to at least some of the grounds raised in the Petition, rendering Petitioner's administrative appeal of those issues futile....
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