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Lukaj v. McAleenan

United States District Court, M.D. Florida, Jacksonville Division

September 8, 2019

ALBAN LUKAJ, Petitioner,
v.
KEVIN K. MCALEENAN, et al., Respondents.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         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 his convictions for: (1) an aggravated felony involving illicit trafficking of a controlled substance; (2) an aggravated felony constituting a crime of violence; (3) a crime relating to a controlled substance; and (4) a crime involving the possession of a firearm. Id. at 3. On March 15, 2016, an Immigration Judge sustained all four charges of removability, denied Lukaj's applications for asylum and cancellation of removal, and ordered Lukaj to be deported to Serbia, or, in the alternative, Albania. Id. at 30. The Immigration Judge also determined that the nature of Lukaj's convictions rendered him ineligible for cancellation of removal. Id. at 27.

         Lukaj appealed the Immigration Judge's order of removal to the Board of Immigration Appeals (Board). Resp. Ex. 2. On appeal, Lukaj argued the Immigration Judge committed the following procedural errors: (1) misallocating the burden of proof; (2) refusing to accept telephonic testimony from potential witnesses; (3) admitting irrelevant and prejudicial evidence into the record; (4) unreasonably denying his request for a continuance; and (5) failing to recuse herself. Id. at 5. Lukaj also challenged the 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 August 2, 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 detention. See Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001); see also Demore v. Kim, 538 U.S. 510, 517 (2003) (noting that federal courts have jurisdiction in habeas proceedings to review constitutional challenges to § 1226(c)).

         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 ...


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