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Cousins v. Duke

United States District Court, W.D. Washington, Seattle

February 16, 2018

RICHARD COUSINS, Petitioner,
v.
ELAINE DUKE, et al., Respondents.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Richard Cousins' 28 U.S.C. § 2241 Habeas Corpus Petition (Dkt. No. 1); Respondents' Motion to Dismiss (Dkt. No. 6); the Report and Recommendation (“R&R”) of the Honorable Brian A. Tsuchida, United States Magistrate Judge (Dkt. No. 15); and the parties' objections thereto (Dkt. Nos. 16, 18, 19). For the reasons described herein, the Court DECLINES to adopt the R&R and GRANTS Respondents' Motion to Dismiss (Dkt. No. 6).

         I. BACKGROUND

         Cousins, a Jamaican citizen, petitions this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 seeking release from detention by the U.S. Department of Homeland Security (“DHS”) pending completion of his removal proceedings. (Dkt. No. 1.) Since filing his petition, Cousins has been ordered removed by an Immigration Judge (“IJ”). (Dkt. No. 17-1 at 2.) Cousins' removal is currently stayed pending a Board of Immigration Appeals (“BIA”) appeal of the IJ's removal decision. (See Dkt. No. 17-2 at 2-4.) Cousins has been detained since October 1, 2015, pending removal. (Dkt. No. 15 at 3.) His lengthy detention results from multiple continuances Cousins requested in his removal proceeding. (Id. at 3-4.) During this time, Cousins received four detention hearings before an IJ. (See Dkt. Nos. 1-1, 1-3, 1-5, 1-7, 15 at 10.) The IJ denied bond in each instance, after finding that no amount of bond and/or alternative conditions could ensure his appearance. (Id.)

         Following unsuccessful appeals to BIA of all but his last detention hearing, Cousins filed a petition for a Writ of Habeas Corpus with this Court. (Dkt. No. 1.) Judge Tsuchida recommends this Court deny DHS's motion to dismiss Cousins' petition and direct the IJ to order Cousins released on reasonable bond and/or alternative conditions pending completion of his removal proceeding. (Dkt. No. 15) Cousins and DHS both filed objections to Judge Tsuchida's R&R. (Dkt. Nos. 16, 18.) Judge's Tsuchida's recommendation was made before Cousins was ordered removed. (Dkt. No. 17-1 at 2.)

         II. DISCUSSION

         A. Legal Standard

         Section 236(a) of the Immigration and Nationality Act provides DHS with discretionary authority to detain aliens pending removal. 8 U.S.C. § 1226(a). After DHS makes an initial detention determination, a detainee may request a detention redetermination hearing before an IJ. 8 C.F.R. §§ 236.1(d), 1236.1(c)(8). At that hearing, the detainee must demonstrate by clear and convincing evidence why release is warranted. Id. Release is warranted if the detainee is not a “threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). At issue in this case is whether Cousins is likely to abscond.[1] An IJ may look to a number of factors in determining that an individual pending removal proceedings is likely to abscond, including the person's “record of appearance in court” and his “criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.” Guerra, 241 I. & N. at 40.

         Additional detention hearings are required for every six months of continued detention. Rodriguez v. Robbins, 804 F.3d 1060, 1071 (9th Cir. 2015) (“Rodriguez III”). Similar factors apply in a Rodriguez hearing, except that the IJ must also consider the length of detention, and the burden shifts to DHS to demonstrate that continued detention is justified by clear and convincing evidence. Id. at 1089; Singh v. Holder, 638 F.3d 1196, 1203-09 (9th Cir. 2011). A detainee may appeal the IJ's determination to BIA. Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). If the detainee is dissatisfied with BIA's review, the detainee may then file a habeas petition with the district court, but the court's jurisdiction is limited to constitutional claims and legal error. 8 U.S.C. § 1226(e); Singh, 638 F.3d at 1200.[2]

         B. Cousins' Habeas Petition

         Cousins' habeas petition alleges the following: (1) As a matter of law, DHS failed to present clear and convincing evidence to justify Cousins' continued detention, (2) the IJ erred in failing to make an individualized determination as to an appropriate bond amount or alternative conditions to ensure Cousins' appearance, (3) the IJ failed to consider the growing length of Cousins' detention, and (4) the IJ erred in how he weighed the evidence put before him. (Dkt. No. 1 at 15-17.)

         Judge Tsuchida recommends that this Court find, as a matter of law, that denial of bond in Cousins' case is not supported by clear and convincing evidence. (Dkt. No. 15 at 18-20.) Judge Tsuchida further recommends this Court dismiss Cousins' remaining claims, noting that the final claim goes beyond the jurisdiction of this Court, and the remaining claims are meritless. (Id. at 17-18, 20-22.) This Court must conduct a de novo review of the portions of Judge Tsuchida's R&R to which a party properly objects. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). A party properly objects when he or she files “specific written objections” to the magistrate judge's report as required under Federal Rule of Civil Procedure 72(b)(2). Here, both parties filed written objections. DHS objects to Judge Tsuchida's recommendation that, as a matter of law, it failed to present clear and convincing evidence justifying continued detention. (Dkt. No. 16 at 3-9.) Cousins also objects, alleging Judge Tsuchida erred in finding his remaining claims to be meritless. (Dkt. No. 18 at 2-8.) As described below, this Court finds DHS's objection meritorious and Cousins's objections without merit.

         1. Cousins' Detention is Permissible as a Matter of Law

         Throughout Cousins' detention hearings, DHS primarily relied on the following evidence to support its position that Cousins is a sufficient flight risk to allow for continued detention: Cousins' extensive criminal history and the nature of some of his crimes, his failure to appear in a 1991 criminal matter, and his risk of flight due to his limited forms of relief from removal. (Dkt. Nos. 1-1 at 2-3; 1-3 at 2-4; 1-5 at 5-7; 1-7 at 7-8; 15 at 10.) Based on the totality of evidence presented, the IJ found that Cousins represented a ...


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