Santos v. Clesceri
| Decision Date | 19 February 2021 |
| Docket Number | Case No. 3:20-cv-50349 |
| Parties | OSCAR GABRIEL LOPEZ SANTOS, Petitioner, v. MICHAEL CLESCERI, Chief of Corrections, McHenry County Jail, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Honorable Iain D. Johnston
The government must detain certain criminal noncitizens pending their removal proceedings under 8 U.S.C. § 1226(c). Oscar Gabriel Lopez Santos (Lopez Santos), who has been granted asylum twice by an immigration judge, was detained under that statute and has now been in custody of Immigration and Customs Enforcement (ICE) for eighteen months. He has petitioned this Court under 28 U.S.C. § 2241 for an immediate bond hearing pursuant to 8 U.S.C. § 1226(a) because his detention has become unreasonable and the February 10, 2021, decision of the Board of Immigration Appeals (BIA) remanding the case back to the immigration judge indicates that a final order of removal is not forthcoming in the near future. For the reasons stated below, this Court orders a bond hearing within thirty days, at which the government must justify Lopez Santos's continued detention by clear and convincing evidence.
Lopez Santos is a citizen of Honduras who entered the United States seeking asylum in December 2014. Dkt. 48, at 2.2 His mother came to the United States from Honduras when he was five years old, leaving him in the care of some relatives. Dkt. 48-2, at 9. He was subject to severe physical abuse by his relatives, and by age twelve Lopez Santos lived on the streets or with friends. Id. He was coerced into joining a gang and was left with no way out. Id. Upon his arrival in the United States at age fourteen, Lopez Santos was immediately placed in detention as an unaccompanied minor under the custody of the Office of Refugee Resettlement (ORR). Dkt. 48, at 2. In October 2016, while still in ORR detention, Lopez Santos filed a Form I-589 Application for Asylum and Withholding of Removal. Id. On April 17, 2017, United States Customs and Immigration Services approved his petition for Special Immigrant Juvenile Status, which could provide him with a basis to seek lawful permanent residency in the United States. Id. at 4. Also that year, in a separate proceeding, Lopez Santos filed a petition for a writ of habeas corpus in the Western District of Virginia. Id. at 2. On May 16, 2017, Immigration Judge Bryant found that Lopez Santos was persecuted based on his membership in a "cognizable particular social group" and granted him asylum; the Department of Homeland Security (DHS) immediately appealed this decision to the BIA. Id. And on June 1, 2017, the district court granted his writ of habeas corpus and released Lopez Santos, who was then seventeen years old, from ORR detention into his mother's care and custody. Id.; see also Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017). In May 2018, the BIA upheld Immigration Judge Bryant's findings, butremanded, ordering him to address whether Lopez Santos's turning eighteen years old affected his eligibility for asylum. Id.
While waiting for the decision on remand, Lopez Santos pled guilty to misdemeanor possession of marijuana on July 1, 2019. Id. During that same time, his girlfriend's mother took out a protective order against him. Dkt. 1, ¶ 23. Without fully understanding what it meant, he violated the protective order by visiting his ex-girlfriend and infant daughter, resulting in his being taken into criminal custody at the Boone County Jail in Burlington, Kentucky, on September 14, 2019. Id.; Dkt. 48, at 2. Lopez Santos served three days in jail for that violation. Id. Immediately following the completion of his three-day sentence, Lopez Santos was taken into ICE custody pursuant to 8 U.S.C. § 1226(c)(1)(A) because of his prior conviction for possession of marijuana, a controlled substance. Dkt. 48, at 3. According to Lopez Santos's testimony, he served no time incarcerated for the marijuana possession offense.
Since September 20, 2019, Lopez Santos has been in ICE custody in facilities in Kentucky and Illinois. Id. He is currently detained in McHenry County Jail in Woodstock, Illinois, in a unit with other detainees awaiting their civil immigration proceedings. Id. at 4. In addition to these ICE detainees, McHenry County Jail also houses pretrial criminal detainees and criminals serving sentences less than one year. Id.
Lopez Santos was granted asylum by an immigration judge for a second time on January 14, 2020. Id. This time, Immigration Judge Bryant granted asylum on two independent grounds: (1) asylum because of the persecution he suffered based on his membership in a particular social group and (2) humanitarian asylum. Id. DHS appealed this decision to the BIA, and while awaiting that decision, Lopez Santos filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 with this Court. Id.; see Dkt. 1. This Court set an evidentiary hearing on the matterfor February 12, 2021. On February 10, 2021, the BIA again remanded the decision to Immigration Judge Bryant for "supplemental factfinding." Id. at 3. Because of this remand, the parties jointly stipulated to the fact that "it could be many months or years before [Lopez Santos's] removal proceedings are resolved." Id.
On February 12, 2021, this Court heard testimony and arguments concerning Lopez Santos's as-applied Fifth Amendment due process challenge to his detention under § 1226(c). This Court recited a list of non-exhaustive factors it was considering, including duration of the detention, likelihood of continued confinement, reasons for delay, and conditions of confinement. See German Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020). Respondent argued that the Court would need to consider the safety of the community if the court was considering Lopez Santos's outright release. See Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. Lopez Santos clarified that he was only seeking an immediate bond hearing and not outright release at this time. Lopez Santos testified under oath to dates and events underlying his immigration proceedings, including details about the abuse and persecution he faced in Honduras before seeking asylum in the United States, as well as his mental health while in custody. For Respondent, McHenry County Sheriff's Office Administrative Lieutenant Dave Wienke testified to the procedures and circumstances at Petitioner's current detention facility, the McHenry County Jail, including safeguards in place to limit the spread of COVID-19.
Federal courts have jurisdiction to hear a civil detainee's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Preiser v. Rodriguez, 411 U.S. 475, 485 (1973) ().
The Due Process Clause of the Fifth Amendment provides that no citizen or noncitizen3 "shall . . . be deprived of life, liberty, or property . . . without due process of law." U.S. Const. amend. V; see also Mathews v. Diaz, 426 U.S. 67, 78 (1976). "[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings." Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538 (7th Cir. 2005) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)); Zadvydas, 533 U.S. at 693 (). And due process requires that these noncitizens have "a meaningful opportunity to be heard." Rodriguez Galicia, 422 F.3d at 583 (quoting Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999)).
The Immigration and Nationality Act is codified at 8 U.S.C. § 1101 et seq. The Act gives the government discretion to "issue a warrant for the arrest and detention of an alien 'pending a decision on whether the alien is to be removed from the United States.'" Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (citing 8 U.S.C. § 1226(a)). Further, the government except those detained pursuant to§ 1226(c). 8 U.S.C. § 1226(a)(2). Section 1226(c) states that the government "shall take into custody any alien who is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title . . . when the alien is released." 8 U.S.C. § 1226(c)(1)(A). The relevant triggering offenses include "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance." 8 U.S.C. § 1182(a)(2)(A)(1)(II).4 Although the Act permits release on bond under certain circumstances, a possession of a controlled substance conviction effectively removes the possibility of bond for a noncitizen in civil detention who is awaiting a final order of removal. Id. at § 1226(c)(2). This is a policy decision made by the other branches of government that the Court cannot question absent a constitutional infringement.
To be clear, "civil detention for any purpose constitutes a significant deprivation of liberty." Addington v. Texas, 441 U.S. 418, 425 (1979) (). This includes civil detention of noncitizens. See Reno v. Flores, 507 U.S. 292, 306 (1993). Because a "statute permitting indefinite detention of an alien would raise a significant constitutional...
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