K.M.H.C., a minor child, Petitioner, v. BARR (2020)

ORDER

The matter before the Court is the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed by Petitioner K.M.H.C. (ECF No. 1).

PROCEDURAL BACKGROUND

On January 21, 2020, Petitioner filed the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 naming Respondents William P. Barr; Greg Archambeault; Chad F. Wolf; Mark A. Morgan; Matthew T. Albence; and Sidney Aki. (ECF No. 1). Petitioner alleges that she was improperly placed into the Migrant Protection Protocols (“MPP”) after being apprehended by U.S. Customs and Border Protection (“CBP”) at the El Chaparral port of entry ¹ while seeking asylum. (ECF No. 1 at 7). Petitioner alleges that she “is being improperly detained in Tijuana, Mexico” before and after her immigration court hearings in the U.S. Id. at 10. Petitioner alleges that she should not be included in the MPP because she is a “vulnerable migrant, a specific excluded class from the MPP.” Id. Petitioner alleges that she should be released from CBP custody pursuant to the Flores Settlement Agreement and should not be detained in Mexico because she is “entitled to the protections of non-refoulement.” Id.

Petitioner brings claims for violations of the Flores Settlement Agreement, violations of the Administrative Procedure Act (pursuant to 5 U.S.C. § 706(2)(A)-(B)), violations of due process, violations of the Guidelines on Migrant Protection Protocols, and violations of the prohibition in domestic and international law against “refoulement.” Petitioner brings additional claims for declaratory relief (pursuant to 28 U.S.C. §§ 2201, 2202) and a writ of habeas corpus (pursuant to 28 U.S.C. § 2241). Petitioner seeks an order assuming jurisdiction over this matter; an order granting “a writ of habeas directing Respondents to release Petitioner within 24 hours and, pending release, provide Petitioner necessary immediate medical attention;” and an order removing “Petitioner from Mexico and into the United States until this court can consider briefing on the merits of this matter.” Id. at 25. Petitioner additionally seeks “a declaration that Petitioner's ongoing detention violates the INA, APA, Flores Settlement Agreement, and Due Process Clause of the Fifth Amendment;” and an award of costs and expenses. Id.

On January 22, 2020, Petitioner filed an Amended Document. (ECF No. 3). On the same day, Respondents filed a Return to the Petition for Writ of Habeas Corpus. (ECF No. 4).

On January 23, 2020, the Court heard oral argument on the Petition for Writ of Habeas Corpus. (ECF No. 5). During oral argument, counsel for Petitioner withdrew Count Five (Respondents' inclusion of petitioner to the MPP violates the guidelines on MPP because the MPP does not apply to certain groups, including Petitioner, who is expressly in an included group) and Count Six (MPP violates the prohibition in both domestic and international law against “refoulement”). Id. Counsel for Petitioner stated that Petitioner is no longer challenging the validity of the MPP or Petitioner's placement in the MPP program.

FACTS

On December 20, 2018, the Secretary of Homeland Security announced the MPP. (Ex. A to Petition, ECF No. 1-3 at 7). Pursuant to the MPP, “asylum seekers from Spanish-speaking countries, ․ who attempt to enter the U.S. along the southern border are returned to Mexico for the duration of their immigration proceedings.” Id. In early 2019, the Department of Homeland Security began processing aliens under the MPP at the San Ysidro Port of Entry. Id. By the middle of 2019, the MPP was expanded across the southern border. Id.

Under the MPP, an immigration officer may return to Mexico “aliens arriving from Mexico who are amenable to” the MPP and “who in an exercise of discretion, the officer determines should be subject to the MPP process.” (Ex. 18 to Respondents' Return to Petition, ECF No. 4-1 at 19). Several categories of aliens “are not amenable to MPP” including, “[u]naccompanied alien children;” “[c]itizens or nationals of Mexico;” “[a]liens processed for expedited removal;” “[a]liens in special circumstances” (such as returning lawful permanent residents or aliens with known physical or mental health issues); “[a]ny alien who is more likely than not to face persecution or torture in Mexico;” and “[o]ther aliens at the discretion of the Port Director.” Id.

“If an alien who is potentially amenable to MPP affirmatively states that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico, whether before or after they are processed for MPP or other disposition, that alien will be referred to a USCIS asylum officer for screening ․ so that the asylum officer can assess whether it is more likely than not that that the alien will face persecution or torture if returned to Mexico.” (Exs. 18-19 to Respondents' Return to Petition, ECF No. 4-1 at 19-20). “If USCIS assesses that an alien who affirmatively states a fear of return to Mexico is more likely than not to face persecution or torture in Mexico, the alien may not be processed for MPP” – that is, he or she may not be returned to Mexico. (Ex. 19 to Respondents' Return to Petition, ECF No. 4-1 at 20). If an alien is amenable to the MPP and an immigration officer “determines,” “in an exercise of discretion,” that that alien “should be subject to the MPP process,” the alien “will be issued a[ ] Notice to Appear (NTA) and placed into Section 240 [8 U.S.C. § 1229a] removal proceedings. They will then be transferred to await proceedings in Mexico.” (Ex. 18 to Respondents' Return to Petition, ECF No. 4-1 at 19).

In a January 25, 2019 memorandum, the Secretary directed that, “in exercising [the Department of Homeland Security's] prosecutorial discretion” over whether to “return [an] alien to the contiguous country from which he or she is arriving,” officers should act consistent with non-refoulement principles. (Ex. 11 to Respondents' Return to Petition, ECF No. 4-1 at 12). An alien “should not be involuntarily returned to Mexico ․ if the alien would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion” or be “tortured” if “returned pending removal proceedings.” (Exs. 11-12 to Respondents' Return to Petition, ECF No. 4-1 at 12-13). All individuals returned to Mexico under the MPP are allowed to stay “at locations designated for the international transit of individuals and to remain in national territory. This would be a ‘stay for humanitarian reasons’ and they would be able to enter and leave national territory multiple times” with “due respect ․ paid to their human rights.” (Ex. 11 to Respondents' Return to Petition, ECF No. 4-1 at 12).

Petitioner is a minor. (Petitioner's mother's Decl. ¶ 2, ECF No. 1-3 at 115). Petitioner and her mother are natives and citizens of Honduras. Id. ¶¶ 1-2, ECF No. 1-3 at 115. Petitioner's mother submitted a declaration stating that Petitioner and her mother left Honduras because of “assault, threats, violence and oppression at the hands of public actors in Honduras” in May 2019. Id. ¶ 3, ECF No. 1-3 at 115. Petitioner's mother states in her declaration that in late July 2019, Petitioner and her mother were kidnapped while travelling through Mexico. Id. ¶¶ 7-17, ECF No. 1-3 at 115-16. Petitioner's mother states that for one week, Petitioner and her mother were kept against their will and held for ransom. Id. ¶¶ 13-17, ECF No. 1-3 at 116.

In August 2019, Petitioner and her mother arrived at the El Chaparral port of entry and were apprehended by CBP agents. Id. ¶¶ 24-25, ECF No. 1-3 at 117. CBP agents asked Petitioner and her mother questions and took their fingerprints. Id. ¶ 28, ECF No. 1-3 at 117. The CBP agents placed Petitioner and her mother in a holding cell at the El Chaparral port of entry for three to four days. Id. ¶ 33, ECF No. 1-3 at 118. On the last day, Petitioner's mother “spoke to American immigration officers” but does not “know if this was a credible fear interview.” Id. After Petitioner's mother signed documents to return to Mexico, Petitioner and her mother were transported to Tijuana “with some papers and a future hearing date.” Id. ¶¶ 35-36, ECF No. 1-3 at 118.

On December 9, 2019, Petitioner and her mother entered the U.S. for an immigration court hearing. Id. ¶ 59, ECF No. 1-3 at 121. After the hearing, Petitioner and her mother were transported to the holding cell at the El Chaparral port of entry. Id. While in the holding cell, Petitioner and her mother were interviewed by immigration officers. Id. The immigration officers concluded that Petitioner's mother “did not establish a clear probability of persecution or torture in Mexico.” (Ex. 26 to Respondents' Return to Petition, ECF No. 4-1 at 27). After the interviews, Petitioner and her mother were sent back to Tijuana with a January 7, 2020 hearing date. (Petitioner's mother's Decl. ¶ 61, ECF No. 1-3 at 121).

On January 7, 2020, Petitioner and her mother entered the U.S. for the immigration court hearing. Id. ¶ 63, ECF No. 1-3 at 121. After the hearing, Petitioner and her mother were transported to the holding cell at the El Chaparral port of entry. Id. ¶ 71, ECF No. 1-3 at 122. On January 8, 2020 Petitioner's mother had “a non-refoulment interview over the phone” at the El Chaparral port of entry. Id. ¶ 97, ECF No. 1-3 at 124. The immigration officer concluded that Petitioner's mother “did not establish a clear probability of torture in Mexico.” (Ex. 26 to Respondents' Return to Petition, ECF No. 4-1 at 27). After the interview, Petitioner's mother signed a document “stating that [she] was going to return to Mexico” and stating the new immigration court hearing date. (Petitioner's mother's Decl. ¶¶ 101-02, ECF No. 1-3 at 125). Petitioner and her mother remained in the holding cell for the next two days until they were transported back to Tijuana. Id. ¶ 103, ECF No. 1-3 at 125.

On January 21, 2020, Petitioner's mother was interviewed telephonically by an immigration officer with her attorney present. (Exs. 27-39 to Respondents' Return to Petition, ECF No. 4-1 at 28-40). The immigration officer “found no clear probability of prosecution on account of a protected ground or torture in Mexico ․” (Exs. 26 to Respondents' Return to Petition, ECF No. 4-1 at 27).

Petitioner and her mother are currently in Mexico.

CONTENTIONS OF THE PARTIES

Petitioner contends that habeas relief is warranted because she is being improperly detained in Tijuana. Petitioner contends that her detention by Respondents violates the Flores Settlement Agreement and her due process rights. Respondents contend that habeas relief is not warranted. Respondents contend that this Court lacks subject matter jurisdiction to enforce any provisions of the Flores Settlement Agreement. Respondents contend that individuals processed through the MPP are not in custody because Mexico is not a detention facility.

DISCUSSION

A. Count Eight - Writ of Habeas Corpus, 28 U.S.C. § 2241

Petitioner alleges that “Respondents are currently holding [her], a minor, in CBP custody in violation of the Flores Settlement Agreement (which is binding law), federal statutes and regulations, and the U.S. Constitution.” (ECF No. 1 at 25). Petitioner “seeks release from detention by writ of habeas corpus pursuant to 28 U.S.C. § 2241.” Id.

“Section 2241 embodies the traditional writ of habeas corpus, permitting an individual to challenge the legality of his custody ․” Woods v. Carey, 525 F.3d 886, 889 n.2 (9th Cir. 2008). “The federal habeas statute gives United States District Courts jurisdiction over petitions for habeas relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of the United States.’ ” Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (emphasis added) (citing 28 U.S.C. § 2241(c)(3)). “The text of the statute makes clear, and the Supreme Court has confirmed, that ‘custody’ is a jurisdictional prerequisite to habeas review under § 2241(c)(3).” Wilson v. Belleque, 554 F.3d 816, 821 (9th Cir. 2009)) (citing Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973)). The phrase “in custody” includes some kind of physical restraint not shared by the public generally. See Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The Court of Appeals has stated that “the boundary that limits the ‘in custody’ requirement is the line between a ‘restraint on liberty’ and a ‘collateral consequence of a conviction.’ ” Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). It is a petitioner's physical liberty, the freedom of movement without restraint, that is pivotal for purposes of the “in custody” requirement. Id.; see e.g., Sherman v. Solano County Sheriff, No. 2:11-cv-1535 KJN P, 2011 WL 6396558, at *2 (“Thus, it is a petitioner's physical liberty—the freedom of movement without restraint—that is pivotal for purposes of the ‘in custody’ requirement.”) “Federal habeas relief under § 2241 is available as a remedy to non-citizens challenging executive detention.” Trinidad y Garcia v. Thomas, 683 F.3d 952, 958 (9th Cir. 2012) (citing INS v. St. Cyr, 533 U.S. 289, 301-03, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)).

The Court of Appeals has held that “[i]mmigrants who have already been removed ․ do not satisfy the ‘in custody’ requirement of habeas corpus jurisdiction” because they are “subject to no greater restraint than any other non-citizen living outside American borders.” Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir. 2001). Petitioner is currently in Mexico awaiting an immigration court hearing. Petitioner is “subject to no greater restraint than any other non-citizen living outside American borders” because Petitioner is at liberty to determine where to reside outside of the U.S., where to travel outside of the U.S., and whether to appear at the designated port of entry for her immigration court hearing. Id.² The Court concludes that Petitioner has failed to establish that she is in custody for habeas purposes while waiting in Mexico pursuant to the MPP. The Court concludes that Petitioner has not met her burden of establishing that this Court has jurisdiction review the Petition under 28 U.S.C. § 2241.

B. Counts Two, Three, and Four – Violation of Due Process

Petitioner alleges that Respondents' detention of Petitioner violates due process rights. Petitioner alleges that her “continued detention in Mexico” is a violation of her “procedural and substantive due process rights under the Due Process Clause of the Fifth Amendment.” (ECF No. 1 at 2, 22). Petitioner requests that the Court “hold unlawful and set aside Respondents' continuing detention of Petitioner.” Id. at 22.

“The Due Process Clause of the Fifth Amendment prohibits the Government from depriving individuals of their life, liberty, or property, without due process of law.” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (citing U.S. Const. amend. V.). “In particular, ‘[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.’ ” Id. (citing Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)). “These protections ‘appl[y] to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent,’ and to immigration detention as well as criminal detention.” Id. (citing Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491).

To assess procedural due process claims, courts employ the test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). This test involves a balancing of three factors: (1) the nature of the private interest that will be affected, (2) the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards, and (3) the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements. See Turner v. Rogers, 564 U.S. 431, 444-45, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011) (alterations and internal quotation marks omitted).

“[T]he private interest at issue here is ‘fundamental’: freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’ That is beyond dispute.” Hernandez, 872 F.3d at 993 (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)); see also Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 2011) (“The Supreme Court ․ repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty.”). The Court concludes that Petitioner has failed to establish that she is in custody for procedural due process purposes while waiting in Mexico pursuant to the MPP.

C. Count One - Violation of the Flores Settlement Agreement

Petitioner alleges that her “continued detention ․ in Tijuana, Mexico at a CBP station in San Diego county” violates the Flores Settlement Agreement ³ . (ECF No. 1 at 18). Petitioner alleges that her “continued detention in Tijuana” violates the Flores Settlement Agreement because Petitioner has not been released from CBP custody within 72 hours. Id. Petitioner alleges that her “placement in Tijuana” violates the Flores Settlement Agreement because Petitioner's “life and welfare” are jeopardized. Id. at 18-19. Petitioner alleges that Respondents have violated the Flores Settlement Agreement by depriving Petitioner of her rights “(1) to seek judicial review of her placement as a minor, and (2) to allege noncompliance with the minimum standards for minor detention.” Id. at 20.

The Court of Appeals has held that absent an independent basis for jurisdiction, “district court[s]” lack “subject matter jurisdiction” over “breach of settlement agreement claim[s].” Munoz v. Mabus, 630 F.3d 856, 861 (9th Cir. 2010). When a plaintiff's claim requires “no interpretation of [federal law]”, the plaintiff's “breach of settlement agreement claim is essentially a contract action against the federal government ․ and belongs, if anywhere, in the Court of Federal Claims.” Id. at 864. In this case, Petitioner fails to allege an independent basis for jurisdiction. The Court lacks subject matter jurisdiction over breach of Flores Settlement Agreement claims.

D. Count Five and Six - Violation of the Guidelines on Migrant Protection Protocols and Violation of the Prohibition Against “Refoulement”

During oral argument, counsel for Petitioner withdrew Count Five (Respondents' inclusion of petitioner to the MPP violates the guidelines on MPP because the MPP does not apply to certain groups, including Petitioner, who is expressly in an included group) and Count Six (MPP violates the prohibition in both domestic and international law against “refoulement”). Id. Counsel for Petitioner stated that Petitioner was not challenging the validity of the MPP or Petitioner's placement in the MPP program.

CONCLUSION

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed by Petitioner K.M.H.C. (ECF No. 1) is DENIED. The Clerk of the Court shall close the case.

FOOTNOTES

1.   Mexico's El Chaparral port of entry is located west of the U.S. San Ysidro port of entry. The El Chaparral port of entry processes pedestrians and traffic traveling south from the U.S. to Mexico.

2.   The Code of Federal Regulations states in part that an alien in removal proceedings “shall be considered detained for a proceeding within the meaning of section 235(b) of the Act and may be ordered removed in absentia by an immigration judge if the alien fails to appear for the hearing.” 8 C.F.R. § 1235.3(d). This provision of the C.F.R. has no application to the “ ‘in custody’ requirement of habeas corpus jurisdiction.” Miranda, 238 F.3d at 1159.

3.   “The Flores Settlement arose out of a lawsuit first filed by plaintiffs in the Central District of California in 1985, challenging the policies of the Immigration and Naturalization Service (INS) regarding the release of detained minors.” Flores v. Sessions, 862 F.3d 863, 869 (9th Cir. 2017). In 1997, the United States District Court for the Central District of California “approved the current Settlement.” Id.

HAYES, Judge: