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Castellanos-Luna v. Pompeo

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

June 4, 2019

NAIN CASTELLANOS-LUNA, Petitioner,
v.
MIKE POMPEO, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Nain 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.

         The 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 hearing.

         BACKGROUND

         A. Immigration history

         Mr. 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.

         B. Current immigration proceedings

         On 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.

         C. Bond hearings

         Since 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 ultimately ruled:

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.

         Mr. 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 ...


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