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Jarpa v. Mumford

United States District Court, D. Maryland

September 30, 2016

GARRY MUMFORD, et al., Respondents.


          Paula Xinis United States District Judge

         Ralph Chidi Jarpa (“Petitioner” or “Mr. Jarpa”) is currently being detained by the Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”)[1] at the Worcester County Detention Center in Snow Hill, Maryland, under 8 U.S.C. § 1226(c). ECF No. 1 at 3.

         On July 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.

         For the 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.

         I. BACKGROUND

         Mr. 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”).

         ICE initiated removal[2] 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).

         On 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.

         Mr. 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.


         Jurisdiction 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)).


         Mr. 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.

         The 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.

         1. Exhaustion of Administrative Remedies

         Ordinarily, 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 bond.”).

         Because 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.

         One 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.

         The two 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 constitutional challenge).

         In 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).

         In this 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.

         Furthermore, 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 Immigration Judge).

         2. Mandatory Detention and Due Process

         The 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).

         Petitioner, 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.

         a. The Supreme Court's Guidance in Demore, Zadvydas and Clark

         Importantly, 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. ยง 1231(a)(6), which automatically holds aliens for a 90-day period following the issuance of a formal order of removal. There, petitioners ...

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