United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE.
Castellanos-Luna, who is proceeding through counsel, seeks
release from immigration detention in this 28 U.S.C. §
2241 habeas action. He maintains he is entitled to release
because there is no significant likelihood that he will be
removed in the reasonably foreseeable future, and therefore
his continued detention violates his due process rights. Dkt.
1 at 19-22. Mr. Castellanos-Luna also argues that the
immigration judge (“IJ”) erred in denying bond.
Id. at 23-30.
Government has moved to dismiss, arguing that Mr.
Castellanos-Luna is lawfully detained and that his bond
hearings comported with the requirements of due process. Dkt.
4. Mr. Castellanos-Luna opposes dismissal. Dkt. 8. As
discussed below, the Court recommends that both the
Government's motion to dismiss and Mr.
Castellanos-Luna's habeas petition be
GRANTED in part and DENIED
in part. Specifically, Mr. Castellanos-Luna is not entitled
to immediate release but should be afforded a new bond
Castellanos-Luna is a native and citizen of Mexico who first
came to the United States in 1991. Dkt. 1 at 1; Dkt. 8-1 at
13. In late 2010, he returned to Mexico to visit his dying
mother. Dkt. 1 at 1-2, 10; Dkt. 8-1 at 13. On January 11,
2011, he applied for admission to the United States but was
issued a Notice and Order of Expedited Removal based on
misrepresentations he made to U.S. Customs and Boarder
Protection (“CBP”) officers. Dkt. 6 at ¶ 4;
Dkt. 7-2 at 5-6. He was removed the following day. Dkt. 7-2
at 5. On January 17, 2011, he again attempted to return to
the United States but was arrested and subsequently removed
pursuant to a second Notice and Order of Expedited Removal.
Dkt. 6 at ¶ 4; Dkt. 7-2 at 4. In February 2011, the Gulf
Cartel kidnapped Mr. Castellanos-Luna and held him for over
two weeks, during which time he was tortured and starved.
Dkt. 8-1 at 13. He was released after his partner paid ransom
requests. Id. On March 3, 2011, Mr. Castellanos-Luna
attempted to return to the United States a third time and was
arrested, his earlier removal order was reinstated, and he
was promptly removed. Dkt. 6 at ¶ 4; Dkt. 7-2 at 3.
During his short detention, he told the CBP officers about
his kidnapping and torture, but they did not refer him for a
reasonable fear interview. Dkt. 8-3 at 17. In June 2011, Mr.
Castellanos-Luna was able to make his way back into the
United States. Dkt. 8-1 at 13. During his absence, his
partner had given birth to their son, who has had significant
health challenges over the years. See id.; Dkt. 8-2
at 32, 35-240.
Current immigration proceedings
February 14, 2018, U.S. Immigration and Customs Enforcement
(“ICE”) officers arrested Mr. Castellanos-Luna at
his home in Mountlake Terrace, Washington, and transferred
him to the Northwest Detention Center. Dkt. 6 at ¶ 6;
Dkt. 7-1. ICE issued a Notice of Intent/Decision to Reinstate
Prior Order. Dkt. 7-2 at 2. Mr. Castellanos-Luna expressed a
fear of return to Mexico, and an asylum officer determined
that his fear of torture was reasonable. Dkt. 6 at ¶ 7.
On February 28, 2018, Mr. Castellanos-Luna was placed in
withholding only proceedings. Id. at ¶ 8. On
July 25, 2018, an IJ held a hearing on Mr.
Castellanos-Luna's application for withholding of
removal, denied his applications for relief from removal, and
reinstated his removal order to Mexico. Id. at
¶ 9; Dkt. 7-3. The Board of Immigration Appeals
(“BIA”) dismissed Mr. Castellanos-Luna's
appeal. Dkt. 6 at ¶ 13. Mr. Castellanos-Luna filed a
motion for reconsideration with the BIA and a petition for
review with the Ninth Circuit. Id. at ¶ 15;
Dkt. 1 at 2. The Ninth Circuit temporarily stayed his
removal, and his petition for review remains pending. Dkt. 6
at ¶ 15.
Mr. Castellanos-Luna's February 14, 2018 arrest, he has
received two bond hearings pursuant to
Martinez-Baños v. Asher, No. 16-1454, 2018 WL
1617706, at *1 - *2 (W.D. Wash. Apr. 4, 2018), adopting R
& R, 2018 WL 3244988 (Jan. 23, 2018) (holding that
detained noncitizens who are subject to reinstated removal
orders and are in withholding only proceedings are entitled
to bond hearings every 180 days). Following the first hearing
on August 21, 2018, the IJ denied bond based on the finding
that Mr. Castellanos-Luna presents a flight risk. Dkt. 6 at
¶ 11; Dkts. 7-7, 7-8. In her written decision, the IJ
stated that the bond hearing was held pursuant to
Martinez-Baños and that the U.S. Department
of Homeland Security (“DHS”) had the burden to
demonstrate that continued detention was warranted. Dkt. 7-8
at 2. The IJ set forth the discretionary factors from In
re Guerra, 24 I & N Dec. 37, 40 (BIA 2006), which
are relevant to determining whether to release a noncitizen
on bond. Dkt. 7-8 at 2. The IJ then summarized DHS's
evidence, including Mr. Castellanos-Luna's
“significant immigration history, ” the denial of
his application for withholding of removal, and an October
2000 arrest for Fail to Comply/Theft, which was later
dismissed. Id. at 3-4. The IJ also summarized Mr.
Castellanos-Luna's evidence, noting that he has lived in
the United States “off and on” since 1991, when
he reentered the United States he did not apply for
protection from the government, he has family in the United
States but no one who can confer any immigration benefit upon
him, his partner has no immigration status, his partner and
U.S. citizen child have significant health issues, and his
child is experiencing stress due to separation from his
father. Id. The IJ further noted that Mr.
Castellanos-Luna submitted documents relevant to employment,
community ties, and health conditions. Id. The IJ
The court does find that DHS established that applicant is a
flight risk based on his multiple unlawful entries,
reentries, and removals from the United States. He is subject
to an order of removal. The sole purpose of the hearing is
for the applications for protection. The applications were
denied. The Court finds applicant is an extreme flight risk.
The court does not find that release on conditions are
appropriate and has no confidence applicant would comply.
Id. at 4. Mr. Castellanos-Luna appealed, and the BIA
dismissed his appeal. Dkt. 6 at ¶¶ 12, 14.
Castellanos-Luna's second bond hearing took place on
March 4, 2019. Id. at ¶ 17. The IJ again denied
bond based on flight risk. Id.; Dkt. 7-9. Based on
the record before the Court, it ...