United States District Court, D. Maryland
Xinis United States District Judge
Chidi Jarpa (“Petitioner” or “Mr.
Jarpa”) is currently being detained by the Department
of Homeland Security, Immigration and Customs Enforcement
(“DHS/ICE”) at the Worcester County Detention
Center in Snow Hill, Maryland, under 8 U.S.C. § 1226(c).
ECF No. 1 at 3.
1, 2016, Mr. Jarpa filed a Petition for Writ of Habeas Corpus
(ECF No. 1) pursuant to 28 U.S.C. § 2241 and Motion for
an Order to Show Cause pursuant to 28 U.S.C. § 2243 (ECF
No. 2), in which he challenges his mandatory detention
pursuant to 8 U.S.C. § 1226(c) and seeks an
individualized bond hearing. Respondents Garry Mumford,
Dorothy Herrera-Niles, John McCarthy, Thomas Homan, Sarah
Saldana, Jeh Johnson, and Loretta E. Lynch (“the
Government” or “Respondents”) filed a
Response incorporating a Motion to Dismiss (ECF No. 6) on
August 5, 2016. According to Respondents, this detention,
authorized under § 1226(c), is not unreasonable in
length. Petitioner filed a Response in Opposition to the
Motion to Dismiss (ECF No. 9) and Respondents filed their
Reply (ECF No. 14). The parties were granted a hearing on the
matter, which took place on September 12, 2016. ECF No. 15.
This matter is ripe for determination.
reasons stated below, the Court will DENY Respondents'
Motion to Dismiss and will GRANT Mr. Jarpa's request for
habeas relief. Mr. Jarpa's Motion for an Order to Show
Cause will be DENIED as MOOT. The Court directs the
Government to provide Mr. Jarpa an individualized bond
hearing within 10 days of the filing date of this Memorandum
Opinion and Order or at a mutually agreeable date to the
parties and the Immigration Judge. At such hearing, the
Government will bear the burden of proving by clear and
convincing evidence that Mr. Jarpa is a flight risk or a
danger to the community to justify denial of bond.
Jarpa is a citizen of Liberia and a lawful permanent resident
of the United States, entering the United States in 2004 as
an asylee. ECF No. 1 at 7. He has lawfully lived in the
United States for approximately twelve years and is a father
to two children who are United States citizens by birth. ECF
No. 1 at 8. In 2009, Mr. Jarpa was convicted of possession of
marijuana, grand larceny, and resisting arrest for which he
served a total of three months in jail. ECF No. 1 at 8; ECF
No. 1-4 at 5. On March 30, 2015, Mr. Jarpa was convicted of
possession with intent to distribute cocaine and was
sentenced to fifteen years' imprisonment, all suspended
but two years. ECF No. 1 at 8-9; Decision and Order of the
Immigration Judge, ECF No. 1-4 at 14. Mr. Jarpa served a
total of one-year imprisonment, and then on November 19,
2015, was transferred directly into the custody of U.S.
Immigration and Customs Enforcement (“ICE”).
initiated removal proceedings against Mr. Jarpa, seeking
termination of his asylum status pursuant to §
237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”), for having been convicted of an
aggravated felony drug trafficking offense as defined by
§ 101(a)(43)(B) of the INA. ECF No. 1 at 9; ECF No. 6 at
8-9. Shortly after Mr. Jarpa was transferred to ICE custody,
he was granted a “Joseph hearing” at his
request to determine if he is properly included within the
category of detainees who are denied a bail hearing pursuant
to § 1226(c). ECF No. 6-6; ECF No. 6 at 9; Demore v.
Kim, 538 U.S. 510, 514 n.3 (2003) (citing In re
Joseph, 22 I. & N. Dec. 799 (BIA 2011)) (Upon being
taken into ICE custody, an alien may request a hearing to
assert he is not subject to mandatory detention under §
1226(c) by demonstrating that it “is substantially
unlikely” DHS will prevail on proving the underlying
charge that serves as the basis for mandatory detention.).
The Immigration Judge concluded that Mr. Jarpa was subject to
mandatory detention under § 1226(c) in light of his
recent criminal conviction. ECF No. 6-6; ECF No. 6 at 9. Mr.
Jarpa did not appeal that decision to the Board of
Immigration Appeals (“BIA”). ECF No. 6 at 9;
See 8 C.F.R. § 1003.1(b)(7) (2016).
February 18, 2016, DHS moved the court to terminate Mr.
Jarpa's asylum status and sought an order of removal.
See DHS Motion to Terminate Asylum Status, ECF No.
6-4. In response, Mr. Jarpa applied for adjustment of status
and waiver under 8 U.S.C. § 1159. ECF No. 1 at 9; ECF
No. 6 at 9. On May 18, 2016 the Immigration Judge found in
Mr. Jarpa's favor, declining to terminate his asylum
status and granting him adjustment of status to lawful
permanent residence under 8 U.S.C. § 1159. See
Decision and Order of the Immigration Judge, ECF No. 1-4. The
Immigration Judge did not address Mr. Jarpa's application
for protection pursuant to the Convention Against Torture.
ECF No. 6 at 9 n.1. As a result, Mr. Jarpa's status as a
lawful permanent resident with asylum status remained intact.
Jarpa nonetheless remained in ICE detention even after the
Immigration Judge's favorable ruling. On June 10, 2016,
the Government appealed, contending that Mr. Jarpa is
potentially removable under INA § 237(a)(2)(A)(iii)
because his aggravated felony conviction precludes his
eligibility for a waiver under 8 U.S.C. § 1159. ECF No.
1 at 9; ECF No. 6 at 10. Thus, even though Mr. Jarpa as of
today stands adjudicated a lawful permanent resident with
asylum status, he remains detained and has been given no
individualized hearing to determine whether he should be
released on bond or conditions. ECF No. 1 at 5.
before this Court is proper under 28 U.S.C. §§ 2241
and 1331. See also Demore, 538 U.S. at 517 (holding
district court retains jurisdiction to hear challenges to
mandatory categorical detention pursuant to § 1226(c)).
Jarpa has been held in ICE custody for nearly eleven months
without any individualized hearing to determine whether he
may be released on conditions of supervision pending the
final determination of his immigration proceedings.
Accordingly, Mr. Jarpa contends his continued detention
without any hearing is unreasonable and violates the Due
Process Clause of the Fifth Amendment. More particularly, Mr.
Jarpa argues that 8 U.S.C. § 1226(c) cannot
constitutionally be read to allow indefinite and prolonged
detention without a constitutionally adequate bond hearing.
Government counters that indefinite categorical detention is
unambiguously permissible under § 1226(c), and even if
it were not, the length of detention in Mr. Jarpa's case
is not unreasonably long, triggering alternate consideration.
The Government further urges that the Court need not reach
the merits of Mr. Jarpa's claims because he has failed to
exhaust his administrative remedies prior to bringing the
instant habeas petition. The Court disagrees with the
Government on both points.
Exhaustion of Administrative Remedies
petitioners seeking relief pursuant to 43 U.S.C. § 2241
are required to exhaust their administrative remedies before
bringing suit. See Timms v. Johns, 627 F.3d 525,
530-31 (4th Cir. 2010). However, under the INA, exhaustion is
statutorily required only on appeals to final orders of
removal. 8 U.S.C. § 1252(d)(1). Mr. Jarpa does not
challenge the merits of a final order of removal but rather
seeks both a determination regarding the constitutionality of
his prolonged detention without being afforded a bond
hearing. Exhaustion is not required when a petitioner
challenges the length of the detention as unreasonable and as
a violation of constitutional rights to due process. See
Aguilar v. Lewis, 50 F.Supp.2d 539, 541 (E.D. Va. 1999)
(“there is no federal statute that imposes an
exhaustion requirement on aliens taken into custody pending
their removal”); accord Galvez v. Lewis, 56
F.Supp.2d 637, 644 (E.D. Va. 1999) (“Exhaustion is not
required when a petitioner challenges conditions imposed on
exhaustion is not required by statute, sound judicial
discretion must govern the Court's decision of whether to
exercise jurisdiction absent exhaustion. Welch v.
Reno, 101 F.Supp.2d 347, 351 (D. Md. 2000) (citing
McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). The
Supreme Court has recognized “at least three broad sets
of circumstances in which the interests of the individual
weigh heavily against requiring administrative
exhaustion.” McCarthy, 503 U.S. at 146.
such circumstance exists when a “particular plaintiff
may suffer irreparable harm if unable to secure immediate
judicial consideration of his claim.”
McCarthy, 503 U.S. at 146-47. Here, continued loss
of liberty without any individualized bail determination
constitutes the kind of irreparable harm which forgives
exhaustion. See Rodriguez v. Robbins, 715 F.3d 1127,
1144 (9th Cir. 2013) (“[T]he deprivation of
constitutional rights ‘unquestionably constitutes
irreparable injury.'”) (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976)); Bois v.
Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) (stating, in
the context of discussing irreparable harm, that
“exhaustion might not be required if Bois were
challenging her incarceration by the military or the ongoing
deprivation of some other liberty interest”); Grant
v. Zemski, 54 F.Supp.2d 437, 442 (E.D. Pa. 1999);
see also Patton v. Dole, 806 F.2d 24, 28 (2d Cir.
1986); North v. Rooney, C.A. No. 03-1811, 2003 WL
21432590, at *6 (D.N.J. June 18, 2003); Seretse-Khama v.
Ashcroft, 215 F.Supp.2d 37, 53 & n.20 (D.D.C. 2002).
This is so because if Mr. Jarpa's continued detention is
indeed unconstitutional, every subsequent day of detention
without remedy visits harm anew. Further, because the harm is
loss of liberty, it is quintessentially the kind of harm that
cannot be undone or totally remedied through monetary relief.
Cf. Montgomery Cty. Ass'n of Realtors, Inc. v. Realty
Photo Master Corp., 783 F.Supp. 952, 958 (D. Md. 1992),
aff'd, 993 F.2d 1538 (4th Cir. 1993)
(“Ordinarily, economic injury is insufficient to
establish irreparable harm because such injuries can be
compensated for monetarily.”). So as to avoid the
continued irreparable harm, therefore, Jarpa need not exhaust
administrative remedies here.
other circumstances prescribed by McCarthy which
excuse exhaustion arise where “substantial doubt exists
about whether the agency is empowered to grant meaningful
redress, ” McCarthy, 503 U.S. at 147-48, or
the potential decision-maker can be shown to have
predetermined the issue. Id. at 148. According to
the Government, § 1226(c) unquestionably mandates
categorical detention and thus renders ICE powerless to grant
meaningful redress. See Vongsa v. Horgan, 670
F.Supp.2d 116, 121-23 (D. Mass. 2009) (collecting cases
regarding futility and concluding that “the BIA has
clearly and repeatedly upheld the denial of a bond hearing
under the view that § 1226(c) mandates detention without
bond”); Ashley v. Ridge, 288 F.Supp.2d 662,
666-67 (D.N.J. 2003) (stating that “[t]he Immigration
Court and Board of Immigration Appeals are courts of limited
jurisdiction that cannot consider constitutional
claims” and that, therefore, “it would
undoubtedly be futile to await further administrative
hearings when those proceedings cannot in any way address the
constitutional claims at issue in this case”);
Matter of C-, 20 I. & N. Dec. 529, 532 (BIA
1992) (“[I]t is settled that the immigration judge and
[the BIA] lack jurisdiction to rule upon the
constitutionality of the Act and the regulations.”);
see also Arango-Aradondo v. I.N.S., 13 F.3d 610, 614
(2d Cir. 1994) (“[T]he BIA does not have authority to
adjudicate constitutional issues . . . .”). Not
surprisingly, therefore, the BIA has consistently refused to
hear challenges to prolonged statutory mandatory detention.
See In re Thaxter, A 078-494-561 (BIA Aug. 27,
2014), ECF No. 9-2; In re Odulene Dormescar, 2010 WL
3780685 (BIA Sept. 3, 2010); In re Bourguignon, A041
055 090, 2009 WL 2218115 (BIA July 14, 2009). In light of the
Government's consistent position upholding categorical
detention without any meaningful individualized bail review,
exhaustion here would be futile. See Welch, 101
F.Supp.2d at 352 (finding that administrative exhaustion is
not required when the BIA has no power to address the
exercising this discretion, the Court must decide whether the
“twin purposes of protecting administrative agency
authority and promoting judicial efficiency” are
outweighed by Mr. Jarpa's interest in immediate
adjudication of his claim by this court. Volvo GM Heavy
Truck Corp. v. U.S. Dep't of Labor, 118 F.3d 205,
208-09 (4th Cir. 1997) (quoting and citing McCarthy,
503 U.S. at 144-45); see also Bowen v. City of New
York, 476 U.S. 467, 484 (1986) (“[A]pplication of
exhaustion doctrine is intensely practical . . . The ultimate
decision of whether to waive exhaustion . . . should be
guided by the policies underlying the exhaustion
requirement.”) (internal quotations omitted).
particular circumstance, permitting a decision on the
petition now does not present any compelling threat to agency
authority or judicial efficiency. Mr. Jarpa is mandatorily
detained under 8 U.S.C. § 1226(c). In his removal
proceedings, the Immigration Judge declined to terminate his
asylum status and adjusted his status to that of lawful
permanent residence under 8 U.S.C. § 1159. Adjudication
of the detention issue by this Court will not unduly burden
administrative agency authority any further than it has
already burdened itself.
the Government elected to appeal the Immigration Judge's
decision on adjustment of status, thereby providing the
agency with ample opportunity to exercise its authority
whether those findings are correct. On the other hand, Mr.
Jarpa's deportability has extended for over ten months
and additional delay attendant to exhaustion “would
just contribute to the troubling delay [Mr. Jarpa] has
already experienced in attempting to resolve [his]
immigration status.” Vongsa, 670 F.Supp.2d at
123 (citing McCarthy, 503 U.S. at 146-47). The
balancing of these factors, therefore, weighs in favor of
deciding Mr. Jarpa's claim now. See Flores-Powell v.
Chadbourne, 677 F.Supp.2d 455, 464 (D. Mass. 2010);
Madrane v. Hogan, 520 F.Supp.2d 654, 668 n.16 (M.D.
Pa. 2007) (reaching habeas claim even though petitioner had
never sought a custody review or bail hearing from the
Mandatory Detention and Due Process
Fifth Amendment prohibits the government from depriving any
person of liberty without due process of law. These
protections extend to aliens facing deportation proceedings.
Reno v. Flores, 507 U.S. 292, 306 (1993) (“It
is well established that the Fifth Amendment entitles aliens
to due process of law in deportation proceedings.”).
Accordingly, immigration judges are empowered to conduct bail
hearings for aliens held pending possible deportation so that
they are not deprived of their liberty without due process.
Lora v. Shanahan, 804 F.3d 601, 608 (2d Cir. 2015).
however, is held pursuant to 8 U.S.C. § 1226(c) which,
on its face, can be read to deny a detention hearing to a
circumscribed class of alien facing possible deportation
after having been convicted of an aggravated felony.
Demore, 538 U.S. at 517-18. Section 1226(c) provides
that “[t]he Attorney General shall take into custody
any alien who is deportable by reason of having committed an
offense covered in section . . . 1227(a)(2)(A)(iii)[.]”
8 U.S.C. § 1226(c)(1)(B) (emphasis added). Almost 20
years ago, “Congress adopted section 1226(c) in an
effort to strengthen and streamline the process of removing
deportable criminal aliens ‘against a backdrop of
wholesale failure by the INS to deal with increasing rates of
criminal activity by aliens' and ‘evidence that one
of the major causes of the INS' failure to remove
deportable criminal aliens was the agency's failure to
detain those aliens during their removal
proceedings.'” Lora, 804 F.3d at 604 n.5
(quoting Demore, 538 U.S. at 518-19); see also
Demore, 538 U.S. at 521 (“Some studies presented
to Congress suggested that detention of criminal aliens
during their removal proceedings might be the best way to
ensure their successful removal from this country.”).
However, both the deportation process and the surrounding
jurisprudence have evolved over the last two decades,
warranting close scrutiny of § 1226(c)'s application
to Mr. Jarpa's detention.
The Supreme Court's Guidance in Demore,
Zadvydas and Clark
since Congress passed § 1226(c), the United States
Supreme Court has established that indefinite and
indeterminate detention without an individualized bail review
hearing cannot pass constitutional muster. In Zadvydas v.
Davis, 533 U.S. 678, 688-89 (2001), the Supreme Court
addressed the constitutionality of another immigration
detention provision, 8 U.S.C. § 1231(a)(6), which
automatically holds aliens for a 90-day period following the
issuance of a formal order of removal. There, petitioners