LUKAJ

v.

NIELSEN

I. Status

Plaintiff Alban Lukaj, a native and citizen of Albania, initiated this action on February 25, 2019, by filing, with the assistance of counsel, a Petition for Writ of Habeas Corpus pursuant 28 U.S.C. § 2241 (Petition; Doc. 1). Lukaj is proceeding on an amended petition filed on May 29, 2019 (Amended Petition; Doc. 8). In the Amended Petition, Lukaj challenges the lawfulness of his detention during the pendency of his removal proceedings. Lukaj also has filed a motion requesting an order granting him bail or an evidentiary hearing on bail pending resolution of this case. See Petitioner’s Motion for Bail with Memorandum of Legal Authority in Support (Bail Motion; Doc. 9). Additionally, Lukaj filed a motion requesting “a preliminary injunction enjoining the government from mandatorily detaining him and granting him a bond hearing before this Court to release him from unconstitutional detention.” See Petitioner’s Motion for Preliminary Injunction (Preliminary Injunction Motion; Doc. 17). Respondents filed a consolidated brief in opposition to the Amended Petition and Bail Motion, see Respondents’ Response in Opposition to Amended Petition for Writ of Habeas Corpus and Motion for Bail (Response; Doc. 13) with exhibits (Resp. Ex.),¹ as well as a response to the Preliminary Injunction Motion. See Respondents’ Response in Opposition to Petitioner’s Motion for Preliminary Injunction (Doc. 21). Lukaj filed a brief in reply to the Response, see Petitioner’s Reply to Respondent’s Response in Opposition to Amended Petition for Writ of Habeas Corpus and Motion for Bail (Reply; Doc. 18), and a reply to Respondents’ response to his Preliminary Injunction Motion. See Petitioner’s Reply to Respondent’s Response in opposition to Petitioner’s Motion for Preliminary Injunction (Doc. 26). This case is ripe for review.

II. Procedural History

Lukaj was admitted to the United States as a refugee from Albania on August 21, 1991, and his status was adjusted to lawful permanent resident on February 12, 1993. Resp. Ex. 1 at 4. On September 24, 2009, a Florida criminal court convicted Lukaj of trafficking in MDMA, more than 400 grams but less than 30 kilograms, and conspiracy to traffic in MDMA, more than 400 grams but less than 30 kilograms. Id. The state court sentenced Lukaj to a term of incarceration of four years in prison, with each count to run concurrently. Id. Thereafter, on August 9, 2010, a Florida criminal court convicted Lukaj of aggravated battery with a firearm and sentenced him to a term of incarceration of ten years in prison, ordering his sentence to run concurrently with the previously imposed sentence for the drug convictions. Id. On July 17, 2015, the Department of Homeland Security (DHS) initiated removal proceedings, asserting that Lukaj was eligible for removal on four grounds: specifically

Immigration Judge’s legal analysis with respect to the merits of the aggravated felony and firearm offense charges. Id. On January 30, 2017, the Board issued a written decision finding Lukaj to be removable and ineligible for cancellation of removal, and dismissing the appeal. Id. at 8. On February 21, 2016, Lukaj petitioned the Eleventh Circuit Court of Appeals (Eleventh Circuit) to review the Board’s decision. Resp. Ex. 4. During the pendency of that appeal, Lukaj completed his state prison sentences and Immigration and Customs Enforcement (ICE) immediately detained him following his release on August 15, 2018. Amended Petition at 6. On February 26, 2019, the Eleventh Circuit granted in part, and dismissed in part, Lukaj’s petition for review. Resp. Ex. 3. The Eleventh Circuit granted Lukaj’s petition to the extent that Lukaj challenged the denial of his applications for asylum, withholding of removal, and cancellation of removal in light of the United States Supreme Court’s decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). In remanding the case to the Board for reconsideration, the Eleventh Circuit held the “Board should be given the first opportunity to decide how to classify Lukaj’s conviction for aggravated battery and to determine whether he is eligible for asylum, withholding of removal, and cancellation of removal.” Resp. Ex. 3 at 10.2 The Eleventh Circuit issued the Mandate on April 19, 2019. Resp. Ex. 4. On August², 2019, pursuant to the Eleventh Circuit’s Mandate, the Board issued a decision again denying Lukaj’s motion to remand to the Immigration Judge and dismissing Lukaj’s appeal of the Immigration Judge’s decision. Doc. 20-1. The Board concluded that Lukaj is removable and does not qualify for any form of relief or protection against removal. Id. at 6. On August 13, 2019, Lukaj filed a petition for review in the

Eleventh Circuit. See Doc. 26-1.

III. Governing Legal Principles

A. Jurisdiction

Pursuant to 28 U.S.C. § 2241(c)(3), a person held in custody can petition for a writ of habeas corpus where the person alleges that he or she “is in custody in violation of the Constitution or laws or treaties of the United States.” This section confers jurisdiction upon the federal courts to hear cases challenging the lawfulness of immigration-related

B. Relevant Immigration Law

The Due Process Clause of the Fifth Amendment provides in part that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law....” U.S. CONST. amend. V. It is beyond dispute that the Fifth Amendment entitles aliens to due process in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). Indeed, the Supreme Court has unequivocally stated that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Nevertheless, “detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process.” Demore, 538 U.S. at 523. By statute, the Attorney General is required to take into custody any alien who is inadmissible or deportable by reason of having committed certain enumerated criminal offenses after the alien has been released from criminal incarceration. 8 U.S.C. § 1226(c)(1). The only statutory exception to this requirement is if release of the alien is necessary to effectuate witness protection so long as the release of the alien would not pose a danger or flight risk. Id. at § 1226(c)(2). Notably, another provision of this statute explicitly prohibits the Attorney General from releasing on bond criminal aliens as defined in § 1226(c). Id. at 1226(a); see also Jennings v. Rodriguez, 138 S.Ct. 830, 837 (2018) (noting that “[s]ection 1226(c), however, carves out a statutory category of aliens who may not be released under § 1226(a).”) (emphasis in original). In Demore, the United States Supreme Court held that § 1226(c) does not violate the due process rights of criminal aliens who have conceded their deportability and are being detained for the limited period of their removal proceedings. Demore, 538 U.S. at 513. In reaching this conclusion, the Supreme Court reasoned that because § 1226(c) concerns detention pending removal proceedings, the detention does not run the risk of being indefinite or potentially permanent and “[s]uch detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings,” which increases the likelihood that the alien will be successfully removed. Id. at 528. In Demore, the permanent resident alien argued that the Fifth Amendment required an individualized bond hearing to determine whether he was either a danger to society or a flight risk. Id. at 514. However, the Supreme Court disagreed, holding that “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal” and “[t]he evidence Congress had before it certainly supports the approach it selected

[mandatory detention pending removal proceedings] even if other, hypothetical studies might have suggested different courses of action.” Id. at 528. Important to the Supreme Court's determination that mandatory detention under § 1226(c) survived a constitutional due process challenge in Demore was its consideration of removal proceeding statistics. In reaching its decision the Court relied on statistics showing that, in the majority of cases, a criminal alien's removal proceedings lasted less than 90 days. Id. at 529 (“[I]n 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the [IJ] to the [BIA], appeal takes an average of four months, with a median time that is slightly shorter.”) (internal citations omitted). The Supreme Court concluded that mandatory detention under § 1226(c) “lasts roughly a month and a half in the vast majority of cases” and up to “about five months” where the alien appeals. Id. at 530. Noting that the alien petitioner had been in custody only slightly longer than average and that he had requested a continuation of his removal hearing, the Court determined that his due process challenge failed. Id. at 531. In a concurring opinion, Justice Kennedy observed that, while pre-removal detention without a bond hearing is constitutional, it can grow so long that it violates Due Process. Id. at 531-33 (Kennedy, J., concurring). “[S]ince the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien… could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (citing Zadvydas, 533 U.S. at 684-86). Justice Kennedy wrote that he believed the majority’s opinion was

“consistent with these premises.” Id. at 533. In the first few years following the Supreme Court’s decision in Demore: every federal court of appeals to examine § 1226(c) has recognized that the Due Process Clause imposes some form of “reasonableness” limitation upon the duration of detention that can be considered justifiable under that statute. See Lora v. Shanahan, 804 F. 3d 601, 606 (2d Cir. 2015); Rodriguez v. Robbins (Rodriguez I), 715 F. 3d 1127, 1138 (9th Cir. 2013)[, cert. granted, ___ S. Ct. ____, No. 15-1204, 2016 WL 1182403 (June 20, 2016)]; Diop v. ICE/Homeland Sec., 656 F. 3d 221, 232–33 (3d Cir. 2011); Ly v. Hansen, 351 F. 3d 263, 269–70 (6th Cir. 2003). And, each circuit has found it necessary to read an implicit reasonableness requirement into the statute itself, generally based on the doctrine of constitutional avoidance. See Lora, 804 F. 3d at 614; Rodriguez I, 715 F. 3d at 1138; Diop, 656 F. 3d at 235; Ly, 351 F. 3d at 270.

Reid v. Donelan, 819 F. 3d 486, 494 (1st Cir. 2016) opinion withdrawn on reconsideration Reid v. Donelan, Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018). In June of 2016, the Eleventh Circuit followed suit and issued an opinion in which it found, “as a matter of constitutional avoidance, we readily join other circuits in holding that § 1226(c) ‘implicitly authorizes detention for a reasonable amount of time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.’” Sopo v. U.S. Attorney General, 825 F. 3d 1199, 1213-14 (11th Cir. 2016) (citation omitted) (Sopo I), vacated as moot, Sopo v. U.S. Attorney General, 890 F. 3d 952, 954 (11th Cir. 2018) (Sopo II). However, in 2018, the United States Supreme Court took up the issue regarding the statutory construction of section 1226(c) and held lower courts could not use the canon of constitutional avoidance to interpret the statue as implicitly placing a six-month limit on detention or requiring periodic bond hearings. See Rodriguez, 138 S.Ct. 830. Review of the plain language of the statute led the Supreme Court to note that “[b]y expressly stating that the covered aliens may be released ‘only if’ certain conditions are met, 8 U.S.C. § 1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.” Id. at 847 (emphasis in original). As such, the Supreme Court held “that § 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection purposes.” Id. at 847 (“As long as the detained alien is not covered by § 1226(c), the Attorney General ‘may release’ the alien on ‘bond . . . or conditional parole.’”) (quoting 8 U.S.C. § 1226(a)). Nevertheless, in reaching its decision on how to interpret the statute, the Supreme Court specifically declined to reach the constitutional question of whether § 1226(c) violates an alien’s due process rights if the period of mandatory detention is unreasonably long. Id. at 851. Following the decision in Sopo I, the Government moved for rehearing en banc, but the Eleventh Circuit stayed that request pending the Supreme Court’s decision in Rodriguez. Sopo II, 890 F. 3d at 953. Once the Supreme Court issued the Rodriguez decision, the Eleventh Circuit ordered additional briefing; however, prior to the parties filing the supplemental briefs addressing Rodriguez, the Government moved to dismiss the Sopo appeal as moot based on Sopo’s removal from the United States. Id. Sopo agreed that his appeal had become moot and the Eleventh Circuit granted the motion, dismissing the appeal and vacating its decision in Sopo I. Id. at 953-54. Accordingly, Sopo

I is not binding precedent in this circuit, and in Rodriguez the Supreme Court explicitly overruled Sopo I’s statutory analysis and construction of § 1226(c). This does not, however, end the discussion, as Rodriguez left open the constitutional question of whether § 1226(c) as interpreted in Rodriguez violates the Due Process Clause of the Fifth Amendment if the period of detention becomes unreasonably prolonged. Since Rodriguez, at least one circuit court has noted that while Rodriguez overruled the previous statutory interpretation of § 1226(c) that read an implicit reasonableness limitation into the statute, it did not call into question the constitutional holding that mandatory detention under § 1226(c) could violate due process if it is unreasonably long. See Borbot v. Warden Hudson County Corr. Facility, 906 F. 3d 274, 278 (3rd Cir. 2018). Other district courts have also determined that unreasonably prolonged detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process. See Kabba v. Barr, No. 19-cv-643, 2019 WL 3974135 (W.D.N.Y. August 22, 2019) (holding petitioner’s unreasonably prolonged detention of eighteen months under

§ 1226(c) violated due process and an individualized bond hearing was necessary); Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019) (holding in class action suit that mandatory detention pursuant to § 1226(c) without a bond hearing would violate due process once detention became unreasonably prolonged).

C. Preliminary Injunction

The Eleventh Circuit has explained that:

A preliminary injunction is an "extraordinary and drastic remedy." McDonald's Corp. v. Robertson, 147 F. 3d 1301, 1306 (11th Cir. 1998) (quoting All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F. 2d 1535, 1537 (11th Cir. 1989)). To secure an injunction, a party must prove four elements: (1) a substantial likelihood of success on the merits;
(2) irreparable injury absent an injunction; (3) the injury outweighs whatever damage an injunction may cause the opposing party; and (4) an injunction is not adverse to the public interest. Id.

Citizens for Police Accountability Political Comm. v. Browning, 572 F. 3d 1213, 1217 (11th Cir. 2009) (per curiam); Keister v. Bell, 879 F. 3d 1282, 1287-88 (11th Cir. 2018), cert. denied, No. 18-17, 2018 WL 3241787 (Oct.¹, 2018). The movant must clearly establish the burden of persuasion as to all four requisites. See McDonald's Corp. v. Robertson, 147 F. 3d 1301, 1306 (11th Cir. 1998).

D. Bail

The Eighth Amendment to the Constitution states in part that “[e]xcessive bail shall not be required . . . .” U.S. CONST. amend. VIII. As relevant to this action, a district court has the power to release a habeas petitioner on bail if he satisfies two criteria: (1) he has demonstrated a likelihood of success on the merits of a substantial constitutional claim,

and (2) extraordinary and exceptional circumstances exist that make the grant of bail necessary to preserve the effectiveness of the habeas corpus relief sought. Gomez v. United States, 899 F. 2d 1124, 1125 (11th Cir. 1990). However, a court cannot release a habeas petitioner on bail if “release [on bail] affords the defendant more relief temporarily than he would be entitled to even if he prevails in his habeas corpus action[.]” Id. Notably, the Supreme Court has held that the Eighth Amendment’s prohibition against excessive bail does not mandate the allowance of bail in deportation cases. Carlson v. Landon, 342 U.S. 524, 544-46 (1952).

IV. Findings of Fact and Conclusions of Law

A. Habeas Petition

1. Claim One

In his First Claim, Lukaj contends that the Respondents are violating the Due Process Clause of the Fifth Amendment to the United States Constitution because they have detained him for an unreasonably prolonged period of time without a bond hearing. Amended Petition at 17. Relying on Demore and Zadvydas, Lukaj maintains “[d]etention without a bond hearing is unconstitutional when it exceeds six months.” Id. at 11. Alternatively, Lukaj asserts that “at a minimum, due process requires a bond hearing after detention has become unreasonably prolonged.” Id. at 12. According to Lukaj, “to justify Petitioner’s ongoing prolonged detention, due process requires that the government establish, at an individualized hearing before a neutral decision maker, that Petitioner’s detention is justified by clear and convincing evidence of flight risk or danger, even after consideration whether alternatives to detention could sufficiently mitigate that risk.” Id. While recognizing that Rodriguez abrogates the holding in Sopo I, Lukaj still argues that it remains persuasive authority that should guide this Court in determining whether habeas relief is warranted because Rodriguez did not address the constitutionality of § 1226(c). Id. at 15-16. Lukaj avers that under Sopo I’s fact-dependent inquiry concerning the reasonableness of the detention, he is entitled to a bond hearing because he has been detained more than six months, he was not responsible for the delays in the removal proceedings and has diligently prosecuted the case, he will likely succeed on the merits before the Immigration Judge, he is being kept in a criminal detention facility with deplorable conditions, his detention has caused extreme hardship to himself and his family, and he suffers from poor health. Id. at 16-17.

In seeking dismissal of the Amended Petition and denial of the Bond Motion, Respondents assert that “mandatory detention under Section 1226(c) during removal proceedings does not violate the Due Process Clause since the detention is an integral part of those proceedings and continues to serve the statute’s purpose.” Response at 7. According to Respondents, that purpose is to ensure criminal aliens will not abscond and that if ordered removed, the Government actually will be able to remove the criminal alien. Id. at 10. Additionally, Respondents aver that mandatory detention pursuant to § 1226(c) does not pose the risk of potentially permanent detention. Id. Respondents rely on Demore in support of their argument, noting the Supreme Court determined the alien petitioner’s six-month detention was unusual but reasonable in light of his requested continuance of his removal hearing. Id. at 8-9. According to Respondents, the Rodriguez decision “compromised” the Eleventh Circuit’s analysis in Sopo I, rendering reliance on its discussion unreasonable at this point. Id. at 13-14. Nevertheless, Respondents maintain that even if the Court were to address this case under Sopo I’s case-by-case assessment analysis, “petitioner’s case is not an outlier or extraordinary case, and his detention continues to fulfill the purpose of facilitating deportation and protecting against flight or dangerousness.” Id. at 12. In analyzing the circumstances of this case, Respondents contend that the Government’s actions did not unreasonably delay this case, as Lukaj’s litigation decisions and pending changes in relevant case law caused the delays;³ Lukaj’s criminal detention far exceeded his current civil detention; the length of Lukaj’s current detention is within time periods that other courts have found did not violate due process; and there are no known impediments to Lukaj’s removal if the immigration judge ultimately orders his removal. Id. at 15-17. Respondents also assert that if the Court orders a bond hearing, the Government is not required to bear the burden of proof and, even if it did, the burden of proof would not be clear and convincing evidence. Id. at 18-

20.

A procedural due process analysis requires a court to conduct a two-part inquiry: first determining whether a petitioner was deprived of a protected interest, and, second, if so, was due process afforded. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 1153-54 (1982). Without question, even for aliens, “[f]reedom from imprisonment-from

Eleventh Circuit in Sopo I identified a list of nonexhaustive factors to consider in a reasonableness analysis: (1) the amount of time the alien has been in detention without a hearing; (2) the cause of the protracted removal proceedings; (3) whether it will be possible to remove the alien upon the issuance of a final order of removal; (4) whether the period of civil immigration detention exceeds the time the alien spent in prison for the crime that rendered the alien removable; and (5) whether the facility at which the alien is civilly detained is meaningfully different from a penal institution. Sopo I, 825 F. 3d at 1217-

2. Claim Two

Lukaj asserts that Respondents are violating the Eighth Amendment’s prohibition against excessive bail. Amended Petition at 17-18. According to Lukaj, “[t]he Government’s categorical denial of bail to certain noncitizens violates the right to bail encompassed by the Eighth Amendment.” Id. at 18. Respondents argue that the Eighth Amendment does not apply to immigration detention. Response at 20-21. According to Respondents, the Supreme Court “has never held that persons detained in civil proceedings, such as removal or deportation proceedings, are entitled to release on bail.” Id. at 21. Based on the Supreme Court’s decision in Carson, the Court concludes Lukaj’s Eighth Amendment claim fails. The plain language of the Eighth Amendment does not guarantee the possibility of bail in all cases. Instead, it merely prohibits the imposition of excessive bail. See Carlson, 342 U.S. at 544-46. Accordingly, Lukaj’s Second Claim for relief is due to be denied.

B. Preliminary Injunction and Bail

In light of the Court’s decision to grant the Amended Petition, Lukaj’s request for a preliminary injunction and bail are due to be denied as moot. Therefore, it is now ORDERED AND ADJUDGED: 1. The Amended Petition (Doc. 8) is GRANTED. The Respondents are ORDERED to grant Lukaj an individualized bond inquiry within fifteen days of the filing date of this Order. Respondents shall report to this Court within ten days following the bond hearing regarding compliance with this Order. 2. The Preliminary Injunction Motion (Doc. 17) is DENIED AS MOOT. 3. The Bail Motion (Doc. 9) is DENIED AS MOOT. 4. The Clerk of the Court is directed to administratively close this case and terminate any pending motions. DONE AND ORDERED at Jacksonville, Florida, this 8th day of September, 2019.

United States District Judge

Jax-8 C: counsel of record