“It is well settled that bail may be denied under 25 many circumstances, including deportation cases, without violating any constitutional 26 rights.”
How later courts described this case
- “It is well settled that bail may be denied under 25 many circumstances, including deportation cases, without violating any constitutional 26 rights.”
- “[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to 22 consider habeas challenges to immigration detention that are sufficiently independent of 23 the merits of the removal order.”
- using an eight- 25 factor test to determine when detention becomes unconstitutional
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
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12 LEWIS ABDUL KALIM SIBOMANA, Case No.: 3:22-cv-933-LL-NLS
13 Plaintiff,
ORDER GRANTING IN PART AND
14 v. DENYING IN PART THE PETITION
FOR WRIT OF HABEAS CORPUS
15 CHRISTOPHER J. LAROSE
AND DENYING THE MOTION TO
16 Defendant. EXPEDITE
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[ECF Nos. 1, 13]
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20 On June 23, 2022, Petitioner Lewis Abdul Kalim Sibomana (“Petitioner”) (Alien
21 Registration No. A-200179618), a federal immigration detainee in the custody of the
22 Department of Homeland Security (“DHS”), Bureau of Immigration and Customs
23 Enforcement (“ICE”) at the Otay Mesa Detention Center in San Diego, California,
24 proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
25 ECF No. 1 (the “Petition”). On August 8, 2022, Respondent Christopher J. LaRose
26 (“Respondent”) filed a return in opposition, ECF No. 8 (the “Return”); he also filed an
27 amended return the next day, which clarified that Petitioner did not have a pending bond
28 appeal. ECF No. 10 (the “Amended Return”). Petitioner filed a reply petition on August
1 26, 2022. ECF No. 11 (the “Reply”). In addition, on November 7, 2022, Petitioner filed a
2 motion to expedite the adjudication of his habeas petition. ECF No. 13. (the “Motion to
3 Expedite”).
4 For the reasons set forth below, the Petition is GRANTED IN PART and DENIED
5 IN PART, and the Motion to Expedite is DENIED as MOOT.
6 I. BACKGROUND
7 Petitioner is a native and citizen of Rwanda. ECF No. 10-1 at 2. He was admitted to
8 the United States in September 2011 on a student visa. Id. In February 2012, he filed an
9 application for asylum. Id. at 9. The DHS did not consider the application and, instead,
10 served him with a Notice to Appear (“NTA”) for his removal proceedings. Id.
11 On July 5, 2018, Petitioner appeared with counsel before an immigration judge (“IJ”)
12 for his initial hearing. ECF No. 10-1 at 9. Petitioner conceded his removability and the
13 service of the NTA. Id. Petitioner then informed the IJ that he would seek asylum,
14 withholding of removal, and protection under the Convention Against Torture (“CAT”).
15 Id. at 10. The IJ set Petitioner’s case for a merits hearing. Id. But before the hearing took
16 place, Petitioner was convicted of a felony in California. ECF No. 10 at 2.
17 He was arrested in January 2020 and charged with three counts: (1) violation of
18 California Penal Code (“CPC”) section 286(f)(1), sodomy of an unconscious or asleep
19 victim; (2) violation of CPC section 287(f)(1), oral copulation of an unconscious or asleep
20 victim; and (3) violation of CPC section 243(e)(1), battery on a spouse, cohabitant, fiancé,
21 boyfriend, girlfriend, or child’s parent. ECF No. 10-1 at 60–62. After three alleged victims
22 testified in the preliminary hearing, the court changed the section 243(e)(1) count to a
23 section 243.4(e)(1) count, for sexual battery, and added a fourth count under CPC section
24 288(c)(1), sexual assault of a minor. Id. at 50. Petitioner entered into a plea bargain and
25 pled no contest to the section 286(f)(1) count; the government dropped the other three
26 counts. Id. at 54, 56. Petitioner was convicted and sentenced to three years imprisonment,
27 but also given time-served and good-time credits. Id. at 54–55.
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1 On August 8, 2021, he was released from state custody. ECF No. 1 ¶ 7. The
2 following month, ICE took him into federal custody pending his removal proceedings.
3 Id. ¶ 11. In March 2022, an IJ conducted a merits hearing and denied Petitioner’s claims
4 for asylum, withholding, and CAT protection. ECF No. 10-1 at 6. The IJ found that the
5 section 286(f)(1) conviction constituted an aggravated felony and a particularly serious
6 crime, that Petitioner did not testify credibly, and that Petitioner failed to establish his
7 eligibility for deferral of removal under the CAT. Id. at 13–14, 22, 24.
8 In April 2022, Petitioner appealed the ruling to the Board of Immigration Appeals
9 (“BIA”). ECF No. 1 ¶ 11. He also filed a motion with the BIA to extend his briefing time
10 because his paid counsel was being replaced by a pro bono counsel. ECF No. 11 at 2. That
11 motion appears to be still pending. ECF No. 10 at 3.
12 In June 2022, an IJ denied Petitioner’s request for a bond hearing on the basis that
13 the immigration court lacked jurisdiction under § 236(c) of the Immigration and
14 Nationality Act (“INA”), 8 U.S.C. § 1226(c). ECF No. 10-1 at 66. Thereafter, Petitioner
15 filed the instant habeas petition challenging his detention and the denial of the bond
16 hearing. ECF No. 1.
17 Petitioner argues that a prolonged detention without a bond hearing violates the Due
18 Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth
19 Amendment. ECF No. 1 ¶ 13. As such, he requests that the Court issue a writ of habeas
20 corpus ordering his immediate release or, in the alternative, ordering release within seven
21 days unless Respondent schedules a bond hearing. Id. ¶ 15.
22 In opposition, Respondent argues that (1) this Court lacks jurisdiction to review the
23 IJ’s removal order as it was based on Petitioner’s conviction of an aggravated felony; (2)
24 the Court should refuse judicial review because Petitioner failed to administratively
25 exhaust the denial of his bond hearing; (3) the IJ correctly determined that Petitioner’s
26 conviction constituted an aggravated felony; (4) the month-long gap between Petitioner’s
27 state custody and federal custody does not preclude the application of 8 U.S.C. § 1226(c);
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1 and (5) Petitioner’s federal custody has not been unconstitutionally prolonged. ECF No. 10
2 at 3–6.
3 II. LEGAL STANDARD
4 “Section 1226(c) . . . carves out a class of aliens for whom detention is mandatory.
5 This includes individuals who have committed certain enumerated offenses or who have
6 been involved in drug trafficking or terrorist activities. ICE may only release a person
7 detained pursuant to this provision if necessary for witness protection purposes. . . .
8 [Section] 1226(c) on its face offers no opportunity for release on bond.” Rodriguez Diaz v.
9 Garland, 53 F.4th 1189, 1197 (9th Cir. 2022) (citing 8 U.S.C. § 1226(c)).
10 In Jennings v. Rodriguez, the Supreme Court held that a noncitizen detained under
11 § 1226(c) has no statutory right to a bond hearing. 138 S. Ct. 830, 848 (2018). But the
12 Court declined to determine whether a noncitizen would be entitled to bond hearings as a
13 constitutional matter and, thus, remanded the case to the Ninth Circuit “to consider [the]
14 constitutional arguments on their merits.” Id. at 851. The circuit court, in turn, remanded
15 the question to the district court, though it noted it had “grave doubts that any statute that
16 allows for arbitrary prolonged detention without any process is constitutional or that those
17 who founded our democracy precisely to protect against the arbitrary deprivation of liberty
18 would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 255–56 (9th Cir. 2018).
19 After Jennings, “it remains undetermined whether the Due Process Clause requires
20 additional bond procedures under any immigration detention statute.” Rodriguez Diaz,
21 53 F.4th at 1201 (emphasis in original); see also Avilez v. Garland, 48 F.4th 915, 927 (9th
22 Cir. 2022) (declining to determine whether due process required a bond hearing for a
23 noncitizen detained under § 1226(c) and remanding the question to the district court to
24 decide in the first instance).
25 In the absence of the Supreme Court’s or the Ninth Circuit’s clear position on this
26 issue, “district courts throughout this circuit have ordered immigration courts to conduct
27 bond hearings for noncitizens held for prolonged periods under § 1226(c). . . . According
28 to one such court order, the prolonged mandatory detention pending removal proceedings,
1 without a bond hearing, will—at some point—violate the right to due process.” Martinez
2 v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (internal quotation marks and citation
3 omitted); see also, e.g., Lopez v. Garland, 1:22-CV-0531-SAB-HC, 2022 WL 4586413,
4 at *1 (E.D. Cal. Sept. 29, 2022) (hearing ordered after one-year detention); Doe v. Garland,
5 3:22-CV-03759-JD, 2023 WL 1934509, at *1 (N.D. Cal. Jan. 10, 2023) (18 months);
6 Yagao v. Figueroa, 17-CV-2224-AJB-MDD, 2019 WL 1429582, at *1 (S.D. Cal. Mar. 29,
7 2019) (42 months).
8 III. DISCUSSION
9 A. Habeas Jurisdiction
10 As an initial matter, this Court disagrees with Respondent that “the crux” of
11 Petitioner’s habeas challenge is the IJ’s aggravated felony ruling. See ECF No. 10 at 3.
12 Instead, Petitioner claims that “[p]rolonged detention without a hearing on danger or flight
13 risks violates the [D]ue [P]rocess [C]lause of the [F]ifth [A]mendment and the [E]ight[h]
14 [A]mendment[‘s] [E]xcessive [B]ail [C]lause.” ECF No. 1 ¶ 13. Thus, the habeas petition
15 seeks not to challenge the merits of the IJ’s removal order, but rather the constitutionality
16 of the pre-removal detention.
17 “[T]he general rule is that even post-REAL ID Act, aliens may continue to bring
18 collateral legal challenges to the Attorney General's detention authority through a petition
19 for habeas corpus.” Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) (internal
20 alterations, quotation marks, and citation omitted); see also Lopez-Marroquin v. Barr, 955
21 F.3d 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to
22 consider habeas challenges to immigration detention that are sufficiently independent of
23 the merits of the removal order.”). Petitioner’s challenge to confinement does not involve
24 a final order of removal. Accordingly, this Court has jurisdiction under 28 U.S.C. § 2241.
25 B. Administrative Exhaustion
26 Respondent also argues that the Court should deny the Petition on prudential grounds
27 because Petitioner has not pursued an administrative appeal of the IJ’s denial of the bond
28 hearing. ECF No. 10 at 4. “[U]nder § 2241, exhaustion is a prudential rather than
1 jurisdictional requirement.” Singh, 638 F.3d at 1203 n.3. Nonetheless, “[w]hen a petitioner
2 does not exhaust administrative remedies, a district court ordinarily should either dismiss
3 the petition without prejudice or stay the proceedings until the petitioner has exhausted
4 remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th
5 Cir. 2011). For instance, exhaustion may be excused where the “pursuit of administrative
6 remedies would be a futile gesture.” Laing v. Ashcroft, 370 F.3d 994, 1001 (9th Cir. 2004).
7 Here, the Court finds any administrative appeal would be futile given the BIA’s
8 previous decisions that an IJ has no jurisdiction to grant a bond hearing for aliens detained
9 under INA § 236(c). See Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007); In Re: Armando
10 Andres Velazquez Mendoza, AXXX XX3 331 – HOU, 2018 WL 2761443, at *1 (BIA
11 Mar. 23, 2018) (“Where an alien is subject to mandatory detention under section 236(c) of
12 the Act, an Immigration Judge does not have jurisdiction to set a bond.”). There is no reason
13 to believe that the result would change if Petitioner were to present his challenge to the
14 BIA first, meanwhile months could be lost in the process. As such, the Court concludes
15 that exhaustion has been excused.
16 C. Due Process Clause
17 In the Ninth Circuit, district courts have taken various approaches to determine
18 whether due process requires a bond hearing in any particular § 1226(c) detention case.
19 See, e.g., Rodriguez v. Nielsen, 18-CV-04187-TSH, 2019 WL 7491555, at *6 (N.D. Cal.
20 Jan. 7, 2019) (applying a bright-line rule that “detention becomes prolonged after six
21 months and entitles [a detainee] to a bond hearing”); Henriquez v. Garland, 5:22-CV-
22 00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (eschewing a bright-line
23 rule and applying instead the factors from Mathews v. Eldridge, 424 U.S. 319 (1976));
24 Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (using an eight-
25 factor test to determine when detention becomes unconstitutional); Lopez, 2022 WL
26 4586413, at *6 (creating a new three-factor test).
27 Recently, one court in the Southern District of California has applied the Lopez
28 three-factor test in making this determination. See Sanchez-Rivera v. Matuszewski, 22-CV-
1 1357-MMA (JLB), 2023 WL 139801, at *6 (S.D. Cal. Jan. 9, 2023). This Court agrees
2 with Judge Anello’s analysis in Sanchez-Rivera that the Lopez test is the most applicable
3 to habeas petitions of noncitizens detained under § 1226(c) seeking an initial bond hearing.1
4 Accordingly, the Court will consider (1) the total length of Petitioner’s detention to date;
5 (2) the likely duration of future detention; and (3) delays in the removal proceedings caused
6 by Petitioner and the government. See Lopez, 2022 WL 4586413, at *6.
7 First, Petitioner has been in immigration detention since September 2021: over
8 nineteen months ago. “In general, as detention continues past a year, courts become
9 extremely wary of permitting continued custody absent a bond hearing.” Gonzalez v.
10 Bonnar, 18-CV-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019) (internal
11 alteration, quotation marks, and citation omitted). As Petitioner’s detention has continued
12 for well over a year, the Court finds this factor weighs in Petitioner’s favor.
13 Second, Petitioner’s motion for an extension of time to file his opening brief with
14 the BIA has been pending since June 2022. There is currently no indication as to when the
15 BIA will rule on the motion, and if it is granted, how long it will take for the BIA to rule
16 on the appeal. Moreover, Petitioner has stated that even if his appeal is dismissed, he will
17 seek judicial review with the Ninth Circuit. ECF No. 11 at 6. As such, detention may
18 continue for months, if not years, into the future. The Court finds that the pending
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22 1 The Court agrees that “[w]hile the Mathews factors may be well-suited to determining
23 whether due process requires a second bond hearing, they are not particularly dispositive
of whether prolonged mandatory detention has become unreasonable in a particular case.”
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Djelassi v. ICE Field Office Dir., 434 F.Supp.3d 917, 920 (W.D. Wash. 2020). As for the
25 eight-factor test, “the conditions of detention, the likelihood that the removal proceedings
will result in a final order of removal, whether the detention will exceed the time the
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petitioner spent in prison for the crime that made him removable, and the nature of the
27 crimes the petitioner committed are not particularly suited to assisting the Court in
determining whether detention has become unreasonable and due process requires a bond
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1 administrative appeal and the potential judicial review process will be sufficiently lengthy
2 such that this factor weighs in Petitioner’s favor.
3 Third, notwithstanding Respondent’s argument that “considerable delay is
4 attributable to Petitioner, who has failed to meet the deadline for filing his appellate brief
5 before the BIA,” the Court finds that the delay is partly attributable to the prolonged period
6 in which Petitioner’s request for a briefing extension has been before the BIA. In May
7 2022, Petitioner’s former attorney filed a motion to withdraw and a motion for extension
8 of time to file an opening brief. ECF No. 10-1 at 68. It appears that the BIA granted the
9 former in June 2022 but has not ruled on the latter. Accordingly, the Court finds that this
10 factor is neutral.
11 Overall, both the length of detention to date, “which is the most important factor,”
12 Banda, 385 F. Supp. 3d at 1118, and the likely duration of future detention weigh in
13 Petitioner’s favor. The delay factor is neutral. Therefore, the Court finds that Petitioner's
14 continued detention has become unreasonable and, thus, due process requires that he
15 receives an initial bond hearing.
16 D. Excessive Bail Clause
17 Petitioner also claims that his continued detention without a bond hearing violates
18 the Eighth Amendment's Excessive Bail Clause. ECF No. 1 ¶ 13. Neither Petitioner nor
19 Respondent addresses this claim in their briefing. See generally ECF Nos. 1, 10.
20 The Eighth Amendment states, “Excessive bail shall not be required . . . .” U.S.
21 Const. Amend. VIII. The Excessive Bail Clause does not “accord a right to bail in all cases,
22 but merely [provides] that bail shall not be excessive in those cases where it is proper to
23 grant bail.” Carlson v. Landon, 342 U.S. 524, 545 (1952); see also Leader v. Blackman,
24 744 F. Supp. 500, 509 (S.D.N.Y. 1990) (“It is well settled that bail may be denied under
25 many circumstances, including deportation cases, without violating any constitutional
26 rights.”). Petitioner cites no authority establishing that bail must be granted to him under
27 the Eighth Amendment. Accordingly, his Eighth Amendment claim fails.
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E. Remedy
2 As noted above, Petitioner requests an order securing his immediate release, or in
3 alternative, release within seven days unless Respondent schedules a bond hearing.
4 ||ECF No. 1 § 15. Petitioner provides no authority to support his claim that he is entitled to
5 ||an order of release. Therefore, the Court finds, consistent with other post-Jennings cases,
6 || that the appropriate remedy is an initial bond hearing before an immigration judge. See,
7 \|e.g., Sanchez-Rivera, 2023 WL 139801, at *7; Lopez, 2022 WL 4586413, at *9; cf.
8 || Martinez, 36 F.4th at 1224 (affirming a district court’s order to the IJ to provide a
9 || noncitizen detained under § 1226(c) an initial bond hearing).
10 Additionally, at the bond hearing, the government shall bear the burden to prove by
11 |/clear and convincing evidence that Petitioner presents a flight risk or a danger to the
12 ||}community. See Martinez, 36 F.4th at 1230-31.
13 IV. CONCLUSION
14 The Petition is GRANTED IN PART and DENIED IN PART. The Petition is
15 |}GRANTED as to Petitioner's due process claim and request for a bond hearing.
16 || Accordingly, within thirty (30) days of the date of service of this order, Respondent shall
17 || provide Petitioner with an individualized bond hearing before an immigration judge. The
18 || Petition is DENIED in all other respects.
19 In light of the ruling above, the Motion to Expedite is DENIED as MOOT.
20 IT IS SO ORDERED.
21 Dated: April 20, 2023 NO
22 QF |
3 Honorable Linda Lopez
54 United States District Judge
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