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Portillo v. Hott

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

July 3, 2018

RUSSELL HOTT, et al Respondents.



         Petitioner Jose Luis Rodriguez Portillo ("petitioner" or "Rodriguez") has filed an application for withholding of removal with the appropriate immigration authorities, in which he seeks to stop the government from removing him to El Salvador. According to Rodriguez, if he is returned to El Salvador, he would be perceived as a gang member and face a substantial risk of being tortured or killed because he has a variety of artistic tattoos on his body. For the past fourteen months, Rodriguez has been detained in immigration custody while the immigration courts adjudicate his application for withholding of removal. Throughout this detention, Rodriguez has never received an individualized bond hearing because respondents believe that his 2011 conviction for felony grand larceny, for which Rodriguez served a prison sentence of 30 days, renders him subject to mandatory detention under 8 U.S.C. § 1226(c).

         In this habeas petition filed under 28 U.S.C. § 2241, Rodriguez challenges his continued detention in immigration custody without a bond hearing as a violation of due process. Both Rodriguez and respondents Russell Hott, Field Office Director, U.S. Immigration and Customs Enforcement ("ICE"), and Jefferson B. Sessions III, United States Attorney General, (collectively, "respondents") have filed motions for summary judgment, which are now before the Court. For the reasons that follow, respondents' motion will be denied, Rodriguez's motion will be granted, Rodriguez's habeas petition will be granted in part and denied in part, and respondents will be ordered to provide Rodriguez with an individualized bond hearing.

         I. BACKGROUND

         Rodriguez, who is a native and citizen of El Salvador, first unlawfully entered the United States in 2007 after his cousin was murdered and his aunt received death threats in El Salvador. Pet. [Dkt. No. 1] ¶ 6. After arriving in this country, he was convicted in 2010 of concealing merchandise, a misdemeanor, and in 2011 of grand larceny, a felony. Id. For the first conviction, he received a sentence of 30 days imprisonment, all of which was suspended, and for the second conviction, he received a sentence of three years imprisonment, with two years and eleven months suspended. Id. After serving the latter sentence, he was deported. Id.

         Rodriguez alleges in his petition that after he returned to El Salvador, he had several encounters with gang members and police that placed him in fear for his safety. Pet. Ex. 5 [Dkt. No. 21] 2. On one occasion, while boarding a bus, he was approached by gang members who demanded that he remove his shirt so they could determine whether he had tattoos. Id. at 2-3. On another occasion, police officers approached Rodriguez and his friends while they were in a park, searched Rodriguez for tattoos, and then detained him for approximately two hours and beat him with police batons, breaking his hand. Id. at 3, 5. Lastly, Rodriguez was approached by gang members who asked him about his tattoos and demanded that he either join their gang or leave the country. Id. at 3.[1]As a result of these encounters, Rodriguez unlawfully returned to the United States in August 2012. Pet. Mem. [Dkt. No. 16] 2.

         Since his return to the United States, Rodriguez has been convicted of two traffic-related criminal acts. In October 2014, he was convicted of driving without a driver's license, for which he was fined. Resp. Ex. 1 [Dkt. No. 7-1] ¶ 14. In July 2016, he was convicted of driving under the influence of alcohol ("DUI"), for which he was sentenced to 30 days imprisonment, with 25 days suspended. Id. ¶ 15. After he was released from local custody for the DUI conviction, he was taken into ICE custody on August 31, 2016; transferred to the custody of the United States Marshals Service; and prosecuted in this court for illegal reentry. Id. ¶¶ 18-20. He pleaded guilty and was sentenced to nine months imprisonment. After serving that sentence, he was transferred back into ICE custody on April 20, 2017. Id. ¶¶ 20-21; Resp. Reply 3 n. 1. Because Rodriguez had expressed a fear of returning to El Salvador, his case was referred to the United States Citizenship and Immigration Services' Arlington Asylum Office ("Asylum Office"). Resp. Ex. 1, at ¶ 21. On May 12, 2017, the Asylum Office determined that Rodriguez had expressed a reasonable fear of persecution or torture if he were returned to El Salvador and referred the case to the Immigration Court for withholding-only proceedings. Id. ¶ 22.

         Throughout the summer and fall of 2017, the Immigration Court conducted withholding-only proceedings: Rodriguez filed his application for withholding on June 13, 2017; he appeared via videoconference for his initial master calendar hearing on June 20, 2017; and he appeared via videoconference for his merits hearing on October 19, 2017 (after the court sua sponte rescheduled the hearing from August 30, 2017). Id. ¶¶ 23-26. On October 25, 2017, the parties presented closing arguments to the Immigration Judge ("IJ") and, on December 13, 2017, the IJ issued a decision granting Rodriguez's application for withholding of removal on the ground that Rodriguez had "established a clear probability [that] his life or freedom would be threatened in El Salvador on account of his membership in [the] cognizable particular social group" of "Salvadoran males perceived to be gang members by virtue of their tattoos." Id. ¶¶ 26-27; Pet. Ex. 5, at 8, 11. The government appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Id. ¶ 27. On May 31, 2018, the BIA sustained ICE's appeal, finding that the IJ's decision was clearly erroneous because the proposed social group was not cognizable, Rodriguez had not established a likelihood of persecution on account of his membership in the proposed social group, and Rodriguez had not established that the Salvadoran government was unwilling or unable to protect him. Resp. Reply 3; Resp. Ex. 4. Accordingly, the BIA remanded the record to the IJ for an initial determination on Rodriguez's alternative request for protection under the Convention Against Torture. See id

         While Rodriguez was in ICE custody, this Court determined as a matter of statutory interpretation in Diaz v. Hott 297 F.Supp.3d 618 (E.D. Va. 2018), appeal filed. No. 18-6419 (4th Cir.), that individuals who, like Rodriguez, are in withholding-only proceedings are detained under 8 U.S.C. § 1226, not under 8 U.S.C. § 1231. This distinction is important because § 1231 provides for mandatory detention, but § 1226 generally provides for bond hearings, with the caveat that § 1226(c) requires the detention of certain "criminal aliens." Accordingly, in Diaz, which was certified as a class action habeas petition, the Court ordered ICE to provide bond hearings for all class members who were not subject to mandatory detention under § 1226(c) and to provide hearings under In re Joseph, 22 I. & N. 799 (BIA 1999), for all class members who ICE determined were subject to § 1226(c)'s mandatory detention provisions.[2] During oral argument on the present motions, ICE counsel advised the Court that approximately ten class members had been released on bond after receiving this individualized bond review. Pursuant to the order in Diaz, Rodriguez received a Joseph hearing on April 4, 2018, and the IJ found that he was subject to mandatory detention because of his conviction for grand larceny. Resp. Ex. 1, at ¶ 35.

         The present habeas petition followed. Rodriguez primarily argues that the Due Process Clause prohibits his prolonged detention without an individualized bond hearing to assess whether he is a flight risk or a danger to the community.[3] Accordingly, Rodriguez requests that the Court either order his release or order that he be provided with a bond hearing before an IJ or a magistrate judge (and retain jurisdiction to review those proceedings). Pet. 9. In addition, Rodriguez requests that the Court specify that the government bears the burden of proof at the bond hearing by clear and convincing evidence. Pet. Mem. 15-16. The parties have now filed cross-motions for summary judgment.


         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 and only "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.

         B. ...

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