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Aguilar v. McAleenan

United States District Court, D. New Mexico

November 8, 2019



          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before me on Petitioner's Petition for a Writ of Habeas Corpus [Doc. 1], filed on May 3, 2019. Respondents responded on June 22, 2019. [Doc. 24]. Petitioner replied on July 8, 2019. [Doc. 26]. The Honorable William P. Johnson, Chief United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 3]. I have considered the briefing, the relevant portions of the record, and the relevant law. Being otherwise fully advised in the premises, I recommend that the Petition be DENIED.

         I. BACKGROUND

         Petitioner is a 22-year-old transgender woman from Honduras. [Doc. 1] at 2, 5-6. She fled Honduras at age 12 after suffering abuse due to her gender identity. Id. at 5-6. She travelled to Mexico where she “[was] held captive in a Mexican bar, [and] forced to engage in sex work . . . for about five years.” Id. at 6. When she was 17, Petitioner presented herself to immigration officials at the U.S.-Mexico border and requested asylum. Id. She had no valid entry documents. [Doc. 24-1] at 2. She was detained and sent to the San Diego Juvenile Coordinator. Id. On July 9, 2014, Petitioner was released from custody on an Order of Release on Recognizance.[4] [Doc. 24-1] at 2. In August of 2017, Petitioner was arrested in Louisiana and charged with prostitution and crimes against nature.[5] Id. Louisiana authorities transferred her to Immigration and Customs Enforcement (“ICE”) custody. Id. at 3. ICE revoked her Order of Release on Recognizance and detained her under 8 U.S.C. § 1225(b)(2)(A) as an alien seeking admission into the United States. Id.

         Petitioner has remained in custody since 2017. She is detained at the Cibola County Correctional Center in Milan, New Mexico. Id. The Department of Homeland Security (“DHS”)[6]has repeatedly denied her requests for parole or to be released on her own recognizance. [Doc. 1] at 8-9. In May of 2018 an immigration judge denied her asylum claim and ordered her removed from the United States to Honduras. [Doc. 24-1] at 3. She appealed that decision. The Board of Immigration Appeals dismissed her appeal and affirmed her order of removal. Id. Petitioner appealed that decision to the United States Court of Appeals for the Tenth Circuit and filed an emergency motion to stay her removal pending judicial review. See Gonzalez Aguilar v. Barr, No. 18-9570 (10th Cir. filed Nov. 18, 2018).

         The Tenth Circuit granted Petitioner's motion to stay her removal, finding that she had “made a strong showing that [s]he is likely to succeed on the merits.” Gonzalez Aguilar, No. 18-9570 [Doc. 010110098599] at 1 (10th Cir. Dec. 17, 2018) (alteration in original) (quoting Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013)). Her removal is stayed pending the Tenth Circuit's decision on her appeal. Id.

         Petitioner filed the instant Petition for a Writ of Habeas Corpus on May 3, 2019. [Doc. 1]. She brings her Petition under 28 U.S.C. § 2241. Id. at 2. She argues that her continued detention violates the Due Process Clause of the Fifth Amendment. Id.


         A habeas petition under 28 U.S.C. § 2241 “challenges ‘the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement.'” Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017) (quoting McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997)). “Habeas corpus is a civil proceeding and the burden is upon the petitioner to show by a preponderance of the evidence that [she] is entitled to relief.” Sa'Ra v. Raemisch, 536 Fed.Appx. 783, 788 (10th Cir. 2013) (quoting Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964) (per curiam)).

         III. ANALYSIS

         Petitioner asserts that the Court should order Respondents to release her from DHS custody because her prolonged and potentially indefinite detention violates the Fifth Amendment Due Process Clause. [Doc. 1] at 2. Alternatively, Petitioner requests that the Court order Respondents to release her within 30 days unless Respondents schedule a bond hearing before an immigration judge and establish that she presents a flight risk or danger to the community. Id.

         Respondents raise a number of arguments against the Petition. First, they argue that because Petitioner is an arriving alien who has not yet been admitted to the United States, she has no statutory or Fifth Amendment right to a bond hearing or immediate release. [Doc. 24] at 4-7. Second, they contend that even if the Fifth Amendment protects her from indefinite detention, that right is not implicated because her detention will not continue indefinitely. Id. at 7-9. Third, Respondents argue that Congress has plenary power of immigration regulation, and Petitioner has received all the process that Congress has provided her. Id. at 7-8. Fourth, Respondents argue that if the Court were inclined to require a bond hearing, the government should not bear the burden of proving that Petitioner is a flight risk or a danger to the community. Id. at 10-12. Finally, Respondents contend that only Warden Chad Miller-the person with custody of Petitioner-is a proper Respondent. Id. at 12.

         Because I recommend finding that Respondents prevail on their first argument, I will not reach the remaining arguments.

         A. The Statutory Structure Applicable to Petitioner

         The Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), provides the framework for the detention of aliens in or attempting to enter the United States. Before passage of IIRIRA, the INA referred to aliens ineligible for entry into the United States as “excludable” aliens. Chi Thon Ngo v. INS, 192 F.3d 390, 295 n.4 (3d Cir. 1999); see also 8 U.S.C. § 1182(a) (1994). IIRIRA changed this statutory structure. The statute now refers to “inadmissible” aliens, rather than excludable aliens. 8 U.S.C. § 1182(a) (2018). An inadmissible alien is one who has not legally entered the United States. See Id. § 1101(a)(13)(A). “‘Inadmissible' aliens, therefore, include aliens who have not entered the United States . . . and those who entered illegally . . . .” Rosales-Garcia v. Holland, 322 F.3d 386, 391 n.1 (6th Cir. 2003).

         U.S. immigration law authorizes the government to detain aliens seeking admission into the country. See § 1225(b). These aliens are also known as “arriving alien[s], ” see 8 C.F.R. § 1.2 (2019), and may be detained under one of two subsections of § 1225(b). Section 1225(b)(1) “applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. [It] also applies to certain other aliens designated by the Attorney General in his discretion.” Jennings v. Rodriguez, 138 S.Ct. 830, 837 (2018) (citation omitted). “Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1), ” subject to certain exceptions. Id. Aliens detained under § 1225(b)(2) “‘shall be detained for a [removal] proceeding' if an immigration officer ‘determines that [they are] not clearly and beyond a doubt entitled to be admitted' into the country.” Id. (alterations in original) (quoting § 1225(b)(2)(A)).

         Under certain circumstances, IIRIRA also permits detained arriving aliens to be allowed within U.S. borders. See, e.g., § 1182(d)(5)(A) (allowing the Attorney General to temporarily parole an inadmissible alien into the United States for “urgent humanitarian reasons or significant public benefit”). Yet, “[a]lthough aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country.” Gisbert v. U.S. Att'y Gen., 988 F.2d 1437, 1440 (5th Cir. 1993). Courts commonly refer to this situation as the entry fiction, see id., and it “runs throughout immigration law, ” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

         In this case, the DHS is currently detaining Petitioner under § 1225(b)(2)(A) after her arrest in the United States for prostitution. [Doc. 24-1] at 3. Though she requests to be released, the text of § 1225(b)(2) mandates her continued detention. § 1225(b)(2)(A) (“[T]he alien shall be detained . . . .” (emphasis added)); Jennings, 138 S.Ct. at 845. Neither does the text of § 1225(b) require a bond hearing. Jennings, 138 S.Ct. at 842-46. Plaintiff does not argue that any other statute authorizes her release. Petitioner's case therefore turns on whether the Fifth Amendment permits her continued detention under § 1225(b)(2)(A).

         B. The Applicability of the Fifth Amendment Due Process Clause to Aliens

         The Constitution does not apply equally to citizens and aliens within U.S. borders. Rather, an alien has traditionally “been accorded a generous and ascending scale of rights as [s]he increases [her] identity with our society.” Johnson v. Eisentrager, 339 U.S. 763, 770 (1950). The Fifth Amendment provides that no “person” shall be “deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. An alien is undoubtedly a “person” and enjoys at least some due-process rights. See Zadvydas, 533 U.S. at 690. Nonetheless, “[t]he fact that aliens within the territorial jurisdiction of the United States are protected by the Due Process Clause . . . does not lead to the conclusion that all aliens are entitled to the same rights as citizens or to the conclusion that all aliens must be treated alike.” M.S.P.C. v. U.S. Customs & Border Prot., 60 F.Supp.3d 1156, 1167 (D.N.M. 2014), vacated as moot, No. 14-cv-0769 JCH/CG, 2015 WL 7454248 (D.N.M. Sept. 23, 2015). Indeed, the Supreme Court “has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 522 (2003).

         The scope of an alien's constitutional rights often depends on her immigration status. Arriving aliens do not enjoy the same panoply of constitutional rights as non-arriving aliens[7] or U.S. citizens. Although the Fifth Amendment Due Process Clause protects aliens from certain substantive and procedural abuses, “the nature of that protection may vary depending on [immigration] status and circumstance.” Zadvydas, 533 U.S. at 694.

The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country [s]he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and Fifth Amendments . . . .

Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring)); see Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence [her] constitutional status changes accordingly.”). To that end, permanent resident aliens who have lawfully entered the country “enjoy the same constitutional rights to due[-]process protection as do U.S. citizens.”[8]Ferreras v. Ashcroft, 160 F.Supp.2d 617, 629 (S.D.N.Y. 2001). Finally, U.S. citizens stand atop this sliding scale of constitutional rights, enjoying some rights that no other persons may claim. See United States v. Huitron-Guizar, 678 F.3d 1164, 1167 (10th Cir. 2012) (stating that only natural-born ...

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