United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION TO DENY PETITIONER'S PETITION FOR
A WRIT OF HABEAS CORPUS
STEPHAN M. VIDMAR United States Magistrate Judge.
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.
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. [Doc. 24-1] at 2. In August of 2017,
Petitioner was arrested in Louisiana and charged with
prostitution and crimes against nature. 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.
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”)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).
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.
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
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)).
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.
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.
I recommend finding that Respondents prevail on their first
argument, I will not reach the remaining arguments.
The Statutory Structure Applicable to Petitioner
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).
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)).
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).
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).
The Applicability of the Fifth Amendment Due Process Clause
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).
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 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.”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 ...