Uranga v. Barr
| Decision Date | 27 July 2020 |
| Docket Number | CASE NO. 20-3162-JWL |
| Parties | ANDRES GARCIA URANGA, Petitioner, v. WILLIAM BARR, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is detained at the Chase County Jail in Cottonwood Falls, Kansas, under the authority of the Enforcement and Removal Office ("ERO"), Immigration and Customs Enforcement ("ICE"), a sub-agency of the U.S. Department of Homeland Security ("DHS"). Petitioner raises four grounds for relief: 1) his detention is not authorized by the Immigration and Naturalization Act ("INA") where he has been ordered released on bond by another federal court; 2) the INA does not authorize his continued detention; 3) his detention is unlawful given violation of his right to counsel under the Constitution and the Administrative Procedures Act (APA); and 4) his detention is in violation of his right to due process under the Fifth Amendment. Petitioner seeks an injunction prohibiting Respondents from transferring him out of the District of Kansas; immediate release; a declaration that Respondents violated Petitioner's Fifth Amendment rights; a declaration that any review conducted by Respondents under 8 U.S.C. § 1231 was arbitrary, capricious, and contrary to the evidence; a declaration that Petitioner's continued detention is improper as punitive; and costs and attorney fees. (Doc. 1, at 25-26.)
Petitioner is a native and citizen of Mexico. Declaration of Deportation Officer Jay Page, ¶ 8 (Doc. 4-1) (hereinafter "Page Decl."). Petitioner first entered the United States in 1999. (Doc. 1, at 5.) He did so without permission. Id. While in the United States, he married and had a child. In 2004, Petitioner returned to Mexico and attempted to reenter the United States, again without permission. He was apprehended during a routine traffic stop and allowed to voluntarily return to Mexico. Page Decl., ¶ 10. Petitioner attempted to obtain lawful permanent residence status in 2006 but was denied in 2009 because of his prior contact with immigration officials and his prior unlawful presence in the United States. (Doc. 1, at 5.) He was apprehended attempting to reenter the United States in January of 2009 and charged in the U.S. District Court for the District of New Mexico with Illegal Entry under 8 U.S.C. 1325(a)(1). Page Decl., ¶ 11. Mr. Garcia pled guilty and was sentenced to time served. (Doc. 1, at 5.) He was removed to Mexico on February 3, 2009, pursuant to an expedited removal order issued by the United States Border Patrol ("USBP") under 8 U.S.C. 1225(b)(1). Page Decl., ¶ 13. He then attempted to return to the United States a month later and was again apprehended by the USBP. Page Decl., ¶ 14. Petitioner was charged in the U.S. District Court for the Western District of Texas with Illegal Re-entry in violation of 8 U.S.C. 1326. He again pled guilty, was sentenced to 120 days, and was removed on July 8, 2009. Page Decl., ¶ 15. After another unsuccessful attempt, he reentered in October of 2009 and has remained in this country ever since with his wife and children, who are U.S. citizens. (Doc. 1, at 6, 11.)
In June of 2016, Mr. Garcia applied for a U Visa based on an attempted robbery which occurred in 2015. Petitioner was the victim and cooperated with law enforcement in the investigation of the crime. Petitioner's application remains pending. (Doc. 1, at 6-7.)
On February 12, 2020, Petitioner was arrested by the Kansas City, Missouri PoliceDepartment on suspicion of drug trafficking. Page Decl., ¶ 17. He was not ultimately charged with a crime but was transferred to ICE custody pursuant to a detainer. (Doc. 1, at 7); Page Decl., ¶ 18. ICE gave Petitioner a Notice of Intent to Reinstate his prior Order of Removal on February 14, 2020. (Doc. 1, at 7); Page Decl., ¶ 19.
Petitioner filed a complaint in the U.S. District Court of the District of Columbia on February 21, 2020 challenging the U.S. Citizenship and Immigration Service's delay in adjudicating his U Visa application. Andres Uranga Garcia v. USCIS, et al., Case No. 1:20-cv-521(ABI). On February 26, 2020, the judge entered a temporary restraining order preventing Mr. Garcia's removal until further order of that court. (Doc. 1-1, at 1.)
On May 27, 2020, Petitioner was indicted in the U.S. District Court for the Western District of Missouri on one count of Illegal Re-entry After a Felony Conviction in violation of 8 U.S.C. 1326(a) and (b)(1). (Doc. 1-3, at 1); Page Decl., ¶ 32. He was released to the custody of the U.S. Marshal's Service on June 5, 2020, subject to a detainer. Page Decl., ¶ 33. U.S. Magistrate Judge Sarah Hayes ordered him released on bond after a detention hearing on June 11, 2020. Page Decl., ¶ 34. Petitioner was returned to ICE custody pursuant to the detainer on June 14, 2020 and is being detained at the Chase County Jail in Cottonwood Falls, Kansas. Page Decl., ¶ 35.
To obtain habeas corpus relief, a petitioner must demonstrate that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The federal district courts have habeas corpus jurisdiction to consider the statutory and constitutional grounds for immigration detention that are unrelated to a final order of removal. Demore v. Kim, 538 U.S. 510, 517-18 (2003).
Petitioner raises four grounds for relief. First, he argues that his detention is not authorized by the INA where he has been ordered released on bond by another federal court. Second, Petitioner argues that, in any event, the INA does not authorize his continued detention. Third, he claims his detention is unlawful given violation of his right to counsel under the Constitution and the Administrative Procedure Act (APA) at his 90-day post custody order review. Last, Petitioner asserts that his detention is in violation of due process under the Fifth Amendment.
Petitioner argues the order from the Western District of Missouri releasing him on bond in his prosecution for Illegal Re-entry should effectively trump Respondents' authority to detain him.
The Court recognizes that several district courts have agreed with Petitioner. See United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1179 (D. Or. 2012); see also, e.g., United States v. Rangel, 318 F. Supp. 3d 1212, 1217-19 (E.D. Wash. 2018); United States v. Boutin, 269 F. Supp. 3d 24, 26-29 (E.D.N.Y. 2017); United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228, *8 (S.D. Ala. Sept. 20, 2013). For instance, in Trujillo-Alvarez, the defendant was alleged to be a citizen of Mexico with no lawful right to be in the United States, but he had "longstanding ties" in the Portland area, a wife and three minor children who were U.S. citizens, and a history of stable employment. Trujillo-Alvarez, 900 F. Supp. 2d at 1170. He was charged with illegal reentry. A U.S. Magistrate Judge determined under the Bail Reform Act ("BRA"), 18 U.S.C. § 3141, et seq., that he did not present a risk of flight or a danger to the community and ordered the defendant released on bond. Id. at 1172. The government did not appeal that decision, but upon his release, ICE took him into custody under a detainer and transported him to Tacoma, Washington, out of the District of Oregon. Id. The defendant moved for an order to show causewhy ICE should not be found in contempt. Id. The court denied the defendant's motion but found that the Executive Branch must choose its priority between criminal prosecution and removal:
When the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with federal criminal prosecution, then all applicable laws governing such prosecutions must be followed, including the BRA. In such cases, if a judicial officer determines under the BRA that a particular defendant must be released pending trial because that defendant does not present a risk of either flight or harm, and the government has chosen not to appeal that determination, the Executive Branch may no longer keep that person in physical custody. To do so would be a violation of the BRA and the court's order of pretrial release.
Id. at 1170. The court based its decision in part on concerns that the defendant's detention was interfering with his right to counsel in the criminal case. Id. at 1180. In reaching its conclusion, the court rejected an argument by the Government that the existence of an ICE detainer constitutes a sufficient risk of nonappearance to deny release under the BRA. Id. at 1176. The court was concerned that the Government was attempting to circumvent the Magistrate's order to release the defendant on bond, stating, "What neither ICE nor any other part of the Executive Branch may do, however, is hold someone in detention for the purpose of securing his appearance at a criminal trial without satisfying the requirements of the BRA." Id. at 1179.
At the time Trujillo-Alvarez was decided, no appellate court had considered the issue. In the meantime, however, six Circuit Courts have addressed the interplay of the INA and the BRA, and "[n]o court of appeals . . . has concluded that pretrial release precludes pre-removal detention." United States v. Soriano Nunez, 928 F.3d 240, 245 (3d Cir.), cert. denied, 140 S. Ct. 526, 205 L. Ed. 2d 347 (2019). See also United States v. Vasquez-Benitez, 919 F.3d 546, 552 (D.C. Cir. 2019); United States v. Pacheco-Poo, 952 F.3d 950, 952 (8th Cir. 2020); United States v. Lett, 944 F.3d 467, 470 (2d Cir. 2019); United States v. Soriano Nunez, 928 F.3d 240, 246-47 (3d Cir. 2019); and United States v. Veloz-Alonso, 910 F.3d 266, 270 (6th Cir. 2018). "Detention of a criminal defendant pending trial pursuant to the BRA and detention of a removable alien pursuant to theINA are separate functions that serve separate purposes...
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