Arizmendi v. Kelly

          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, ...