United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
TO
THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
Petitioner
Jose Alberto Espindola Arizmendi (“Petitioner”)
has filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. (Doc. 1) Petitioner contends his
continued detention violates his substantive and procedural
due process rights under the Fifth Amendment. (Id.
at 9-10) Respondents filed a response. (Doc. 8) The
undersigned ordered the parties to submit two rounds of
supplemental briefing subsequent to the U.S. Supreme
Court's decision and opinion in Jennings v.
Rodriguez, ___U.S.___, 138 S.Ct. 830 (2018), which now have
been filed. (Docs. 10-11, 13-14) For the reasons set forth
below, the undersigned recommends the Petition be denied and
dismissed with prejudice.
I.
BACKGROUND
Petitioner
is a native and citizen of Mexico. (Doc. 8-1 at 3) In
December 2012, Petitioner was approved for the Deferred
Action for Childhood Arrivals (“DACA”) program.
(Id. at 7) His renewal application for DACA status
was approved in October 2014, which was valid until October
24, 2016. (Id. at 12) On October 10, 2016, U.S.
Immigration and Customs Enforcement (“ICE”)
agents interviewed Petitioner at the Maricopa County
Sheriff's Office jail after he was arrested by the Mesa
Police Department on drug charges. (Id. at 15-18)
ICE agents took Petitioner into custody on October 11, 2016,
and detained him at the Eloy Detention Center. (Doc. 8 at 2)
ICE issued a Notice to Appear, charging Petitioner as subject
to removal pursuant to 8 U.S.C. §
1182(a)(6)(A)(i)[1] as “an alien present in the United
States without being admitted or paroled, or who arrived in
the United States at any time or place other than as
designated by the Attorney General.” (Doc. 8-1 at 20)
On
November 8, 2016, an Immigration Judge conducted a change in
custody/bond hearing, and denied bond, finding that
Petitioner “is a danger.” (Id. at 22)
Petitioner reserved appeal. (Id.) ICE transferred
custody of Petitioner to the Maricopa County Sheriff's
Office on February 1, 2017, pursuant to his pending drug
charges. (Id. at 24) On May 19, 2017, ICE again took
custody of Petitioner when he was “booked out” of
the Maricopa County Jail, and returned him to the Eloy
Detention Center. (Id. at 29) Petitioner was
provided a change in custody/bond hearing at which the
Immigration Judge took “no action.” (Id.
at 34) Respondents say this hearing occurred on May 23, 2017.
(Doc. 8 at 3) On June 5, 2017, Petitioner was afforded
another change in custody/bond hearing at which the
Immigration Judge indicated that the Department of Homeland
Security (“DHS”) had “shown that Respondent
remains a danger.” (Doc. 8-1 at 36) Petitioner
appealed, and the Board of Immigration Appeals dismissed his
appeal in an order dated January 19, 2018. (Id. at
50-52)
Respondents
aver that Petitioner was again turned over to the Maricopa
County Sheriff's office in July 2017, on his drug related
charges. (Doc. 8 at 3) Petitioner entered a plea agreement
and pleaded to a count of solicitation of possession of
marijuana for sale, a Class 6 undesignated felony. (Doc. 8-1
at 55) ICE retook custody of Petitioner from the county
sheriff on November 1, 2017. (Id. at 39) On January
25, 2018, an IJ conducted a change in custody/bond
hearing.[2] (Id. at 59) The Immigration Judge
denied Petitioner's request for change in custody status,
finding that Petitioner had not been “in DHS custody
for 180 days.” (Id.)
The
parties appear to agree that Petitioner has been detained in
DHS custody since November 1, 2017. (Doc. 8 at 1, Doc. 10 at
2) They also appear to agree that Petitioner has been
detained since November 1, 2017 pursuant to 8 U.S.C. §
1226(c).[3] (Doc. 11 at 2, Doc. 13 at 8) Respondents
indicate that Petitioner is scheduled for a master calendar
hearing on July 31, 2018. (Doc. 14 at 5)
II.
DISCUSSION
A.
8 U.S.C. § 1226(c)
Title 8
U.S.C. section 1226 governs the apprehension and detention of
aliens. 8 U.S.C. § 1226. Subsection (c) addresses the
detention of criminal aliens. Petitioner's detention is
authorized under section 1226(c)(B), which provides that the:
Attorney General shall take into custody any alien who ... is
deportable by reason of having committed any offense covered
in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of
this title ... when the alien is released, without regard to
whether the alien is released on parole, supervised release,
or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(B). Significantly, § 1226(c)(2)
requires that “the Attorney General ‘may
release' one of those aliens ‘only if the
Attorney General decides' both that doing so is necessary
for witness-protection purposes and that the alien will not
pose a danger or flight risk. § 1226(c)(2) (emphasis
added).” Jennings, 138 S.Ct. at 846.
The
offense Petitioner pleaded to, solicitation of possession of
marijuana for sale, falls within the ambit of 8 U.S.C. §
1227(a)(2)(B)(i), which provides that “any alien who at
any time after admission has been convicted of a violation of
(or conspiracy or attempt to violate) any law or regulation
of a State, the United States, or a foreign country relating
to a controlled substance (as defined in section 802 of Title
21) ... is deportable.” 8 U.S.C. §
1227(a)(2)(B)(i). Title 21 U.S.C. § 802 defines terms
for the purposes of drug abuse prevention and control.
Section 802(6) defines the term “controlled
substance” as “a drug or other substance, or
immediate precursor, included in schedule I, II, III, ...