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Diaz v. Hott

United States District Court, E.D. Virginia, Alexandria Division

February 26, 2018

ROGELIO AMILCAR CABRERA DIAZ, et al. on Behalf of Themselves and All Others Similarly Situated, Petitioners,
RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement, et al., Respondents.


          Leonie M. Brinkema, United States District Judge

         Before the Court is petitioners' Motion to Certify Class [Dkt. No. 11] and Motion for Summary Judgment [Dkt. No. 16] as well as respondents' Motion for Summary Judgment [Dkt. No. 21]. For the reasons that follow, petitioners' motions will be granted and respondents' motion will be denied.

         I. BACKGROUND

         Petitioners Rogelio Amilcar Cabrera Diaz ("Cabrera Diaz"), Jennry Francisco Moran Barrera ("Moran Barrera"), and Rodolfo Eduardo Rivera Flamenco ("Rivera Flamenco") (collectively, "petitioners") have filed a class action habeas corpus petition pursuant to 28 U.S.C. § 2241, seeking class action certification and an order directing respondents Russell Hott ("Hott"), the Field Office Director for U.S. Immigration and Customs Enforcement ("ICE"), and Jefferson B. Sessions, III ("Sessions"), the Attorney General of the United States of America, (collectively, "respondents") to grant the class members bond hearings.

         The relevant facts are simple and undisputed. Each individual petitioner has been removed from the United States under an order of removal. Second Am. Pet. for Writ of Habeas Corpus [Dkt. No. 4] ¶¶ 13, 19, 23. When each petitioner returned to his native country (two of the petitioners are from El Salvador and one is from Honduras), he received death threats. Id. ¶¶ 14, 20, 24. As a result, each petitioner returned to the United States without permission from the appropriate authorities. Id. ¶¶ 15, 20, 25. Each petitioner has been issued a Notice of Intent/Decision to Reinstate Prior Order, which reinstated the prior order of removal and rendered him deportable, and each has been detained by ICE at Immigration Centers of America- Farmville (in Farmville, Virginia) since such issuance. Id. ¶¶ 17, 21-22, 25. Each petitioner has expressed a fear of returning to his native country and, after either an asylum officer or an immigration judge ("IJ") determined that he had a reasonable fear of persecution or torture, he was placed in withholding-only proceedings, which remain pending. Id. ¶¶ 18, 22, 26.

         Petitioners believe that they, and other detainees who are similarly in withholding-only proceedings, are entitled under the Immigration and Nationality Act ("INA") to bond hearings, because they believe that 8 U.S.C. § 1226, not 8 U.S.C. § 1231, provides the source of authority for their detention. Id. ¶¶ 41-44. This Court has agreed. See Romero v. Evans, F.Supp.3d, No. 1:17-cv-754, 2017 WL 5560659 (E.D. Va. Nov. 17, 2017). Accordingly, petitioners seek to represent a class of all individuals:

who are in 'withholding-only proceedings, having established a reasonable fear of persecution or torture, and such proceedings are not administratively final, or if final, a stay of removal has been granted by a U.S. Court of Appeals, and
who, as of the time of filing the initial pleading in this case or at any time thereafter, are detained by, or on the authority of, U.S. Immigration and Customs Enforcement, within the state of Virginia.

Id. ¶ 47. Respondents disagree that class certification is appropriate and that petitioners are being held pursuant to § 1226. Accordingly, petitioners have filed a Motion for Class Certification [Dkt. No. 11] and each party has filed a Motion for Summary Judgment [Dkt. Nos. 16& 21].


         A. Standard of Review

         A party is entitled to summary judgment if the party can show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In general, bare allegations or assertions by the nonmoving party are not sufficient to generate a genuine dispute; instead, the nonmoving party must produce "significantly probative" evidence to avoid summary judgment. Abcor Corp. v. AM Int'l. Inc., 916 F.2d 924, 929-30 (4th Cir. 1990) (quoting Anderson, 477 U.S. at 242). That being said, in ruling on a motion for summary judgment, a court should accept the evidence of the nonmovant, and all justifiable inferences must be drawn in her favor. Anderson, 477 U.S. at 255.

         Class certification is appropriate under Fed.R.Civ.P. 23 if petitioners can show that there are sufficiently numerous parties ("numerosity"); there are questions of law or fact common to the class ("commonality"); the claims or defenses of the named petitioners are typical of the claims or defenses of the class ("typicality"); and the named petitioners will fairly and adequately protect the interests of the class ("adequacy"). In addition, a proposed class must qualify under Rule 23(b)(1), (2), or (3). Petitioners seek certification under Rule 23(b)(2), which permits certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2).

         B. Summary Judgment

         As both parties agree, all relevant facts in this action are undisputed and the resolution of the habeas petition turns on a pure question of law: whether ICE's authority to detain petitioners arises from 8 U.S.C. § 1226, as petitioners contend, or 8 U.S.C. § 1231, as respondents contend. If petitioners are held under § 1226, they are entitled to a bond hearing under § 1226(a) unless the government determines that they are criminal aliens subject to mandatory detention under § 1226(c).[1] If petitioners are held under § 1231, they are subject to mandatory detention without a bond hearing.[2] Petitioners rely on an opinion from this Court, as well as a Second Circuit opinion, holding that aliens in petitioners' position are detained under § 1226 and are entitled to bond hearings. See Romero, __ F.Supp.3d__, 2017 WL 5560659, appeal pending. No. 18-6086 (4th Cir.); see also Guerra v. Shanahan. 831 F.3d 59 (2d Cir. 2016). Respondents rely on Ninth Circuit and Eastern District of Virginia decisions holding that detainees in petitioners' position are detained under § 1231 and are not entitled to bond hearings. See Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir. 2017); Crespin v. Evans. 256 F.Supp.3d 641, No. 1:17-cv-140, 2017 WL 2385330 (E.D. Va. May 31, 2017), appeal dismissed as moot. No. 17-6835 (4th Cir. Feb. 23, 2018).[3]

         The context of petitioners' detention and the legal claims raised by both parties involve the nature of reinstated final removal orders and the effect of withholding-only proceedings on those orders, as well as the statutes governing detention during and after removal proceedings.

         1. Reinstated Removal Orders and Withholding-Only Proceedings

          When an alien who has been ordered removed from the United States and has either been removed or departed voluntarily under the order of removal illegally reenters the country, the original order of removal "is reinstated from its original date." 8 U.S.C. § 1231(a)(5). Such an order "is not subject to being reopened or reviewed" and the alien "may not apply for any relief from that order under the INA. See Id. In general, this provision "forecloses discretionary relief from the terms of the reinstated order, " Fernandez-Vargas v. Gonzales,548 U.S. 30, 35 (2006); however, there is one exception to this rule. Congress has provided, consistent with the United States's obligations under international law, that the Attorney General may not remove an alien to a country where the alien's life or freedom would be threatened. See 8 U.S.C. § 1231(b)(3).[4]This restriction applies even to aliens with reinstated removal orders. ...

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