United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE
Myron Anthony Haughton has been held by the Department of
Homeland Security in an immigration detention facility since
October 5, 2015. CompL, [Dkt. 1] ¶ 1. Due to a series of
burglary convictions earned while he was a teenager, Haughton
is subject to mandatory detention pursuant to 8 U.S.C. §
1226(c) while he awaits disposition of his removal
proceedings. Id. In June 2016, Haughton petitioned
this Court for a writ of habeas corpus, arguing that his
prolonged detention violates the constitutional guarantee of
due process and requesting an individualized bond hearing.
Id. K 2. As of this writing, he has been detained
for over one year.
the Court is respondents' Motion for Summary Judgment.
[Dkt. 4]. For the reasons that follow, respondents'
Motion will be denied, summary judgment will be granted for
the petitioner, and respondents will be ordered to hold an
individualized bond hearing for petitioner within thirty (30)
entered the United States in August 1999, at the age of
eleven. IJ Decision, [Dkt. 1-1] at 2. Before his arrival in
the United States, Haughton lived with his father and
stepmother in Kingston, Jamaica. Id. His father
worked away from home Monday through Friday and his
stepmother was physically abusive. Id. When Haughton
was eleven, his biological mother visited him in Jamaica and
arranged for him to join her in the United States.
Id. He entered the United States by illegally
impersonating a cousin who had documents permitting him to
enter the country. Id. Shortly after arriving,
Haughton realized that his mother had invited him to live
with her in Maryland so that he would look after her three
younger children. Id. at 3. Soon, she too was
abusing him. After Haughton's teacher observed his
bruises, she notified the authorities and Haughton was sent
to live with an aunt. Id. Two years later, when the
aunt decided she no longer wanted to care for him, Haughton
was returned to his mother. Id. The abuse soon
resumed and in 2004, at the age of sixteen, Haughton ran
thereafter, a number of boys who Haughton had befriended
persuaded him to participate in a series of car thefts and
burglaries of unoccupied homes. Id. In April 2006,
Haughton was arrested on multiple juvenile arrest warrants.
Id. at 9; Tine Decl., [Dkt. 5-1] at ¶ 5. He was
subsequently charged as an adult for two incidents that
occurred in January 2006, shortly after his eighteenth
birthday. Tine Decl., [Dkt. 5-1] at ¶ 5. Pending trial,
Haughton was held in a juvenile detention facility. IJ
Decision, [Dkt. 1-1] at 4. He escaped after one month in the
facility by absconding with an employee's car but was
apprehended while walking near a friend's house the
following week. Id. Haughton ultimately pleaded
guilty to the two January 2006 burglaries, specifically one
count of Felony Theft and two counts of Felony First Degree
Burglary, and was sentenced to five years imprisonment for
each. Tine Decl., [Dkt. 5-1] at ¶ 6. The sentences ran
concurrently, with three years suspended. Id.; IJ
Decision, [Dkt. 1-1] at 4. Haughton served a total of
eighteen months before being released on probation. IJ
Decision, [Dkt. 1-1] at 4, 15.
ten years since his release, Haughton has "taken visible
and concrete steps toward rehabilitation." Id.
at 15. He successfully complied with the terms of his
probation, worked toward his GED, and became involved with
his local church. Id. at 4, 15. In 2007, Haughton
began dating Tatiana Barrow. Id- at 4. Like petitioner, she
had suffered from an abusive childhood, having been raised in
a Russian orphanage after being removed from her parents'
home for neglect. When she was fifteen years old, she was
adopted by United States citizens. Id. at 5-6.
Haughton and Barrow married in 2014. Pet. BIA Appeal, [Dkt.
8-2] at 43. They have two children together, Adelina, age
six, and Ayden, age four, both United States citizens.
Id. Although Haughton's employment opportunities
have been limited by his undocumented status, he has held
several jobs. IJ Decision, [Dkt. 1-1] at 4. Before his
detention, Haughton was the primary caretaker for his two
young children, working with both of them on language,
writing, and arithmetic skills. IJ Decision, [Dkt. 1-1] at
December 23, 2013, Haughton was arrested by Virginia law
enforcement based on an outstanding bench warrant for driving
without a license and driving on a revoked license in
Maryland. Tine Decl., [Dkt. 5-1] ¶ 7. While Haughton was
in the custody of Virginia law enforcement, Immigration and
Customs Enforcement (ICE) discovered that he had entered the
United States illegally. Id. at ¶ 7-8. On
January 9, 2014, Haughton was transferred to ICE custody.
Id. at ¶ 9. Based on Haughton's unlawful
presence and convictions for burglary and theft, ICE issued a
Notice of Intent to Issue Final Administrative Order.
Id. Haughton did not contest the charges in the
Notice of Intent and ICE issued a Final Administrative
Removal Order. Id. Meanwhile, ICE began efforts to
secure travel documents for Haughton to return to Jamaica.
Id at ¶ 10. On March 31, 2014, Jamaican
officials informed ICE that they could not issue travel
documents because they were unable to confirm Haughton's
Jamaican birth. Id. at ¶ 12. ICE continued to
detain Haughton from March to August 2014 while it tried
without success to secure the necessary travel documents.
Id. at ¶13. On September 5, 2014, Haughton was
released from ICE detention and placed on an Order of
Supervision. Id. at ¶14. He complied with that
Order by reporting to the designated officials as scheduled
on October 7, 2014 and March 11, 2015. Id.
August 2015, the government secured a copy of Haughton's
original Jamaican birth certificate and on September 21,
2015, ICE learned that Jamaica would issue the necessary
temporary travel documents for petitioner, which would be
valid through the end of October 2015. Id. at ¶
15-16. On October 5, 2015, ICE took Haughton back into
custody as an alien subject to a final order of removal.
Resp. Memo., [Dkt. 5] at % 4. While awaiting
removal, Haughton was subject to mandatory detention pursuant
to 8 U.S.C. § 1226(c) by virtue of his three criminal
convictions from 2006. Id. at 2.
October 9, 2015, while detained, Haughton applied for
permanent residency through his wife, a naturalized United
States citizen, by filing a Form 1-130 Petition for Alien
Relative. Id. at ¶ 5. On October 13, 2015,
Haughton's counsel informed ICE of the application and
that Haughton would seek to adjust his status to that of a
lawful permanent resident if United States Citizenship and
Immigration Services (CIS) approved his application.
Id. The following day, ICE cancelled the Final
Administrative Removal Order and instead issued a Warrant of
Arrest and Notice to Appear (NTA) to place Haughton in
removal proceedings pursuant to 8 U.S.C. § 1229.
Id. at ¶ 6. The NTA indicated that Haughton was
removable as an alien who has been convicted of a crime
involving moral turpitude, 8 U.S.C. §
1182(a)(2)(A)(i)(I), and as an alien who has been convicted
of two or more offenses for which the aggregate sentence of
confinement is five years or more, 8 U.S.C. §
1182(a)(2)(B). Id. ICE has continued to detain
Haughton as an alien subject to mandatory detention under 28
U.S.C. § 1226(c). Id. at ¶ 7.
November 2015, ICE filed the NTA with the Arlington
Immigration Court. Id. at ¶ 8. On December 3,
2015, Haughton appeared for his initial master calendar
hearing, where he admitted to the factual allegations in the
NTA and conceded the charges of removability. Id. at
¶ 9. The case was continued so that Haughton's
counsel could brief the Immigration Judge (IJ) on
Haughton's eligibility to adjust his status. Id.
At the second master calendar hearing on January 14, 2016,
the parties determined that Haughton would be eligible to
apply to adjust status if CIS approved the pending 1-130 and
the case was reset pending CIS's decision. Id.
at ¶ 10. On February 11, 2016, the parties informed the
IJ that the 1-130 petition had been approved. Id. at
the approval of his 1-130 petition, Haughton filed an
application for Adjustment of Status pursuant to 8 U.S.C.
§ 1255 and a Form 1-601 Waiver of Grounds of
Inadmissibility pursuant to 8 U.S.C. § 1182(h).
Id. A merits hearing was held on March 29,
2016 and, on May 5, 2016, the IJ issued a written decision,
in which he found that Haughton had established the
"exceptional and extremely unusual" hardship
required for perpetrators of dangerous crimes who are
attempting to avoid deportation and granted Haughton's
requests for both the waiver of inadmissibility and permanent
residency. IJ Decision, [Dkt. 1-1] at 15. In reaching this
decision, the IJ emphasized the unique emotional hardship
that Haughton's deportation would cause his wife, which
was accentuated by her traumatic upbringing, as well as the
financial debt that she was accumulating during
Haughton's detention, which "place[d] her
family's housing in jeopardy." Id. at
12-13. The IJ also recognized the burden born by
Haughton's children. As the IJ explained, "Based on
the unsustainable financial situation in the
[petitioner's] household, the young ages of the children,
the [petitioner's] special role as the fulltime, primary
caretaker and teacher for them while their mother works, and
the adverse psychological and developmental effects they have
been displaying since the [petitioner's] detention, the
Court finds that the children would suffer... exceptional and
extremely unusual [hardship] upon the [petitioner's]
removal." Id. at 13-14. Observing that Haughton
has "taken visible and concrete steps toward
rehabilitation and worked to become a positive role model for
his children, " the IJ concluded that discretionary
relief was warranted. Id. at 14.
filed a timely Notice of Appeal with the Bureau of
Immigration Appeals (BLA). Compl., [Dkt. 1] ¶ 17. The
BIA established July 12, 2016 as the briefing deadline. Resp.
Memo., [Dkt. 5] at 7-8. ICE filed its brief on July 11, 2016,
and Haughton's counsel received a three-week extension
upon request and filed on August 2, 2016. Id. at
awaiting resolution of ICE's appeal, Haughton sought
bond. On June 8, 2016, he filed the pending petition for a
writ of habeas corpus. Compl., [Dkt. 1]. He also filed a
request for bond with the Immigration Court the following
week. Resp. Memo., [Dkt. 5] at 11. DHS opposed the bond
motion and, on July 8, 2016, the IJ denied Haughton's
motion on the grounds that there was no final order and
Haughton remained subject to mandatory detention.
Id. One month later, in response to petitioner's
habeas petition, respondents filed their motion for summary
judgment. [Dkt. 4].
parties do not dispute the relevant facts, therefore the sole
issue in this habeas petition is a question of law: whether
petitioner's prolonged, mandatory detention under §
1226(c) without receiving an individualized bond hearing
violates the constitutional guarantee of due process.
Although several courts in this jurisdiction have summarily
dismissed similarly styled claims by holding that they are
barred by the Supreme Court's decision in Demore v.
Kim.533 U.S. 510 (2003), see, e.g.. Tshiteva v.
Crawford. No. 1:13-CV-894, 2013 WL 6635096, at *5 (E.D.
Va. Dec. 16, 2013); Ozah v. Holder. No. 3:12-CV-337,
2013 WL 709192, at *5 (E.D. Va. Feb. 26, 2013); Obaido v.
Lucero. No. 1:12-CV-415, 2012 WL 3257827, at *2 (E.D.
Va. Aug. 8, 2012), this reasoning has been called into
question by the growing weight of circuit court precedent
concluding that Demore should be construed narrowly,
as well as by new evidence about the duration of pre-removal
detention in the United States. After reviewing the relevant
Supreme Court precedent, this Court reaches the same
conclusion as all six courts of appeals to confront this