United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court for consideration of a Report
and Recommendation (“R&R”) filed by the
Honorable Brian A. Tsuchida, United States Magistrate Judge.
Dkt. #10. Petitioner Nain Castellanos-Luna, proceeding
through counsel, seeks release from immigration detention
pursuant to 28 U.S.C. § 2241. Judge Tsuchida recommends
that both Mr. Castellanos-Luna's habeas petition, Dkt.
#1, and the Government's motion to dismiss, Dkt. #4, be
granted in part and denied in part, finding that Mr.
Castellanos-Luna is not entitled to immediate release but
should be afforded a new bond hearing.
Court has reviewed Plaintiff's habeas petition, the
Government's motion to dismiss, the R&R filed by
Judge Tsuchida, the Government's Objections thereto, and
the remaining record. The Court approves and adopts the
R&R but writes to address the arguments raised in the
Government's Objections regarding Mr.
Castellanos-Luna's right to a new bond hearing.
See Dkt. #11.
Court adopts and incorporates by reference the factual
background from the R&R regarding Mr.
Castellanos-Luna's immigration history and current
immigration proceedings. See Dkt. #10 at 2-3. Mr.
Castellanos-Luna has remained at Northwest Detention Center
in Tacoma, Washington since his arrest by U.S. Immigration
and Customs Enforcement on February 14, 2018. Dkt. #6 at
¶6. Mr. Castellanos-Luna's removal is temporarily
stayed because his withholding of removal case is pending
before the Ninth Circuit. Id. at ¶15. On August
21, 2018, Immigration Judge Tammy L. Fitting (“the
IJ”) denied Mr. Castellanos-Luna's request for
release on bond on the basis that he poses a flight risk.
Dkt. #1 at 3. The Board of Immigration Appeals (“the
Board”) affirmed the IJ's decision. Id. at
4. On March 6, 2019, Mr. Castellanos-Luna filed a petition
for writ of habeas corpus in the U.S. District Court for the
Western District of Washington, requesting immediate release
from detention on the basis that his continued detention
violates the Immigration and Nationality Act and due process
rights. Id. at 19-23. Alternatively, he requests
conditional release on bond and/or appropriate conditions on
the basis that the IJ and the Board abused their discretion
in denying his bond request. Id. at 23-31.
4, 2019, Judge Tsuchida issued an R&R concluding that Mr.
Castellanos-Luna is not entitled to immediate release. Dkt.
#10 at 4-5. However, the R&R recommends granting Mr.
Castellanos-Luna's alternative request that he be
conditionally released on bond and/or appropriate conditions
unless the Government provides him with a constitutionally
sufficient bond hearing within 30 days of this Order on the
R&R. On June 19, 2019, the Government objected to the
R&R's recommendation of a new bond hearing. Dkt. #11
R&R concluded that Mr. Castellanos-Luna is entitled to a
new bond hearing on the basis that clear and convincing
evidence did not support the IJ's denial of bond. Dkt.
#10 at 6-11. The Government's Objections incorporate the
arguments in their Motion to Dismiss, see Dkts. #4,
#9, and argue that the R&R (1) improperly re-weighed the
evidence and exceeded the scope of judicial review over bond
decisions; and (2) did not properly defer to the Immigration
Judge's expertise. Dkt. #11 at 2-3. The Court finds that
the R&R applied the appropriate standard of review to the
IJ's denial of bond and agrees with the R&R's
conclusion that there is insufficient evidence under the
clear and convincing evidence standard to support the
IJ's bond decision.
Standard of Review for Bond Decisions
Ninth Circuit has established that “an individual
facing prolonged immigration detention under 8 U.S.C. §
1231(a)(6) is entitled to release on bond unless the
government establishes that he is a flight risk or a danger
to the community.” Diouf v. Napolitano
(“Diouf II”), 634 F.3d 1081 (9th Cir.
2011). Specifically, a noncitizen denied release in his
six-month custody review and whose release or removal is not
imminent is entitled to a bond hearing before an IJ.
Id. at 1091-92. Under Diouf II, noncitizens
subject to reinstated removal orders who have applied for
withholding of removal are entitled to automatic bond
hearings every six months. 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). These bond hearings must comply with
the procedural safeguards established in Singh v.
Holder, 638 F.3d 1196 (9th Cir. 2011), which requires
that the government justify continued detention by clear and
convincing evidence that the noncitizen is either dangerous
or a flight risk. Martinez- Baños, 2018 WL
3244988, at *5 (R & R). To determine if continued
detention is warranted, an IJ may consider a number of
factors provided in In re Guerra: (1) whether he has
a fixed address in the United States; (2) length of residence
in the United States; (3) family ties in the United States,
and whether they may entitle him to reside permanently in the
United States in the future; (4) employment history; (5)
record of appearance in court; (6) criminal record; (7)
history of immigration violations; (8) attempts to flee
prosecution or otherwise escape from authorities; and (9)
manner of entry to the United States. 24 I & N Dec. 37,
40 (BIA 2006). See also Singh, 638 F.3d at 1206.
R&R correctly notes that the Ninth Circuit “has not
provided guidance ‘on precisely what standard of review
a district court should apply in reviewing an IJ's
application of the clear and convincing evidence standard of
proof.'” Dkt. #10 at 9 (quoting Ramos v.
Sessions (“Ramos II”), 293
F.Supp.3d 1021, 1030 (N.D. Cal. 2018), appeal
docketed, No. 18-15884 (9th Cir.) (quotation and
citation omitted)). The R&R relies on the analysis in
Ramos II, wherein the court extensively analyzed the
appropriate standard of review. See Id. Ramos II
concluded that a court must review an IJ's factual
findings for clear error, and independently review the facts,
findings, and record to determine, de novo, whether
those facts “clearly and convincingly”
demonstrate that the petitioner poses a flight risk,
including whether “no alternative to detention could
protect the community [or prevent flight].” Dkt. #10 at
9 (quoting Ramos II, 293 F.Supp.3d at 1032-33).
The Government's Objections
Government objects to the R&R on the basis that the court
improperly re-weighed the discretionary Guerra
factors rather than limiting its review to whether the IJ
applied the proper legal standard to Petitioner's bond
hearings. Dkt. #11 at 2. In doing so, the Government argues,
the court substituted its judgment in place of the IJ's
discretion over bond by weighing certain factors, such as Mr.
Castellanos-Luna's strong family and community ties in
the Seattle area, more heavily than the factors considered by
the Government such as his multiple unlawful reentries and
final orders of removal. ...