Najera-Castillo v. Acting US Attorney General et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Najera-Castillo
v. Civil No. 17-cv-029-PB
Jefferson B. Sessions et al.1
REPORT AND RECOMMENDATION
Before the court is the petition for a writ of habeas
corpus filed by David Najera-Castillo under 28 U.S.C. § 2241,
asserting claims for release under Zadvydas v. Davis, 533 U.S.
678 (2001). Najera-Castillo, a Mexican citizen with end-stage
renal disease who undergoes dialysis three days each week, is
currently in the custody of Immigration and Customs Enforcement
(“ICE”) at the Strafford County Department of Corrections
(“SCDOC”) in New Hampshire, where he has been held since
December 1, 2015, pending his removal to Mexico. The court
referred Najera-Castillo’s § 2241 petition to the undersigned
magistrate judge for issuance of a report and recommendation on
1Respondents in this case are: United States Attorney
General Jefferson B. Sessions, Department of Homeland Security
Secretary John F. Kelly, and the Immigration and Customs
Enforcement Boston Field Office Director (collectively, the
“federal respondents”); as well as petitioner’s immediate
custodian, Strafford County Department of Corrections (“SCDOC”)
Superintendent Bruce Pelkie.
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the merits. See Mar. 28, 2017 Minute Order; see also Apr. 3,
2017 Order (Doc. No. 23).
Petitioner and the federal respondents appeared through
counsel at an evidentiary hearing before the magistrate judge in
April 2017.2 The parties specifically agreed at the hearing to
shorten this Report and Recommendation’s objection period to
seven days. See Apr. 12, 2017 Minute Entry. ICE has agreed to
forebear from transferring Najera-Castillo to a Houston ICE
detention facility while this matter remains pending. See
Notice (Doc. No. 21).
The parties have filed proposed findings of fact and
conclusions of law. See Doc. Nos. 30, 32. To the extent this
Report and Recommendation does not specifically address the
matters asserted in those proposed findings and conclusions of
law, they are denied.
Background
Except where otherwise indicated, the following facts are
not in dispute. Najera-Castillo was born in Mexico and came to
2Petitioner’s immediate custodian, SCDOC Superintendent
Pelkie, did not appear at the hearing, and has not actively
participated in the proceedings on the merits of the petition.
Pelkie’s response to the petition states that he “will follow
whatever Order issues from this court regarding the custody and
control of the petitioner.” Doc. No. 8.
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the United States decades ago. See POCR Worksheet, Feb. 2016,
Ex. EE, at 9 (ICE 0021). Najera-Castillo’s mother lives in
Massachusetts. See id.; see also Doc. No. 34, at 59. Najera-
Castillo was admitted to the United States as a lawful permanent
resident in 1993. See Jt. Statement of Facts, Doc. No. 26 ¶ 1.
He was deported to Mexico in November 1999 after he had been
convicted of felony charges in Texas. Id. ¶¶ 5-6. He re-
entered the United States shortly after his removal, without
authorization, and was subsequently arrested, charged, and
convicted of illegal reentry. Id. ¶¶ 7, 11, 12.
Between March 2010 and October 2015, ICE issued a series of
stays of the removal of Najera-Castillo for humanitarian
reasons, based in part on his end-stage renal disease and need
for dialysis. Id. ¶¶ 13, 24. During that time period, he
remained on supervised release. Id.
ICE denied Najera-Castillo’s October 2015 application for a
stay of removal. Id. ¶¶ 14, 15. 18. On November 16, 2015,
Najera-Castillo was arrested in Massachusetts on drug possession
charges that were never prosecuted. Id. ¶ 16. On December 1,
2015, Najera-Castillo was again taken into ICE custody, where he
remains at this time. Id. ¶¶ 17, 18, 23.
In the sixteen months that have passed since ICE took
Najera-Castillo into custody, ICE has issued decisions
continuing his detention four times, in February 2016, May 2016,
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November 2016, and March 2017. Id. ¶¶ 19, 20, 21, 22. The
March 1, 2017 decision states that “ICE is able to move forward”
with removal, and that pending “medical coordination” with
Mexico, Najera-Castillo must remain in ICE custody. Id. ¶ 21;
Decision to Continue Detention, Mar. 1, 2017, Ex. AA.
ICE Detention and Deportation Officer Jennifer Lamoureux
testified at the hearing in this case that Mexico has a policy
of requiring coordination with the local Mexican Consulate when
an ICE detainee from Mexico has severe medical or mental health
needs, to secure appropriate and safe repatriation back to
Mexico. See Doc. No. 33, at 16, Test. of J. Lamoureux, Tr. of
Evid. Hr’g, Day One, Apr. 6, 2017. She further testified that
ICE has had problems removing Mexican citizens, like Najera-
Castillo, who have severe medical or mental health care needs
and do not have identified family members in Mexico. See Doc.
No. 33, at 16, 24-25; see also Email from J. Lamoureux, May 25,
2016, Ex. H.
Lamoureux testified that, in June 2016, at the request of
the Department of Homeland Security and ICE, the U.S. Department
of State sent a Diplomatic Note to the Government of Mexico,
which asked “that the Government of Mexico immediately find
sponsors to receive and care for the needs” of six specifically
identified individuals whose removal had been delayed for up to
eighteen months at that point, who had serious medical or mental
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health needs. Diplomatic Note, June 22, 2016, Ex. A; see also
Doc. No. 33, at 36. Najera-Castillo is not one of the six
people listed in that Diplomatic Note. See Doc. No. 33, at 60.
At a July 26, 2016 meeting with ICE and representatives of
the U.S. Department of Homeland Security, which Lamoureux
attended, the Mexican Ministry of Health made a verbal
commitment to explore alternatives to Mexico’s requirement that
there be a family letter of support, in cases where a Mexican
ICE detainee with serious medical or mental health care needs is
ambulatory. See Doc. No. 33, at 25; Doc. No. 34, at 90, 91, 92,
Test. of J. Lamoureux, Tr. of Evid. Hr’g, Day Two, Apr. 11,
2017; see also RTWG Conclusions, Ex. G. Lamoureux testified
that the Mexican Ministry of Health made a commitment to assist
with two specific cases, neither of which was Najera-Castillo.
See Doc. No. 33, at 25. Najera-Castillo was not discussed at
that meeting. Doc. No. 33, at 27; Doc. No. 34, at 31.
On September 13, 2016, the Boston Mexican Consulate stated
that although the Consulate would be happy to interview Najera-
Castillo again, consular officials did not think it would be
productive, as they had interviewed Najera-Castillo in May 2016;
he was not in contact with Mexican relatives; and he did not
consent to having consular officials initiate a search for such
relatives. See Email, Sept. 13, 2016, Ex. K, at 1-2.
The ICE Boston Field Office reported that the Boston
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Mexican Consulate had re-interviewed Najera-Castillo in October
2016. See ICE Boston Field Office, Email to J. Lamoureux, Oct.
4, 2016, Ex. I, at 1-2. That email states that consular
officials described Najera-Castillo as “uncooperative” regarding
the provision of information regarding relatives in Mexico who
could care for him. Id. Consular officials also said they
would work on finding a care facility that would take Najera-
Castillo, and that they would provide him with money if he were
removed. Id.
A January 23, 2017 letter from the Boston Mexican Consulate
to Najera-Castillo’s counsel, sent after the events reported in
those ICE emails, indicates that the Consulate’s efforts to find
a medical facility to care for Najera-Castillo were not fruitful
because of the lack of a Mexican sponsor for him. That letter
states, as follows:
This Consulate General has made continuous efforts with the
Mexican authorities to obtain housing and access to
adequate health services for Mr. Najera.
However, our efforts have been infructuous because of the
inexistence of any available person to sign a healthcare
proxy or assume responsibility for the follow up of Mr.
Najera’s medical attention and treatment.
Boston Mexican Consulate Letter, Jan. 23, 2017, Ex. DD.
On February 2, 2017, Lamoureux sent out an email, stating
that her Embassy contact had said he was committed to contacting
the Boston Mexican Consulate (“BOS”) and the Mexican foreign
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ministry (“SRE”) to push Najera-Castillo’s case. Email from J.
Lamoureux, Feb. 2, 2017, Ex. J. Pressure from Lamoureux’s
contact, if it was applied, evidently did not change the Boston
Mexican Consulate’s conclusions as to Najera-Castillo later that
month. “On 2/16/17 the Boston consulate stated they have been
unable to arrange medical care in Mexico and are waiting on an
official answer from their headquarters.” EARM Log Entry, Feb.
22, 2017, Ex. BB.
Lamoureux testified on April 11, 2017 that the Mexican
government has not finally resolved whether the requirement of a
family letter of support may be waived in cases involving
Mexican nationals with serious medical issues, where there is no
family support. Doc. No. 34, at 91, 92. That issue remains a
topic of discussion in an intergovernmental working group,
involving representatives of the Mexican government and ICE, in
which Lamoureux participates. Doc. No. 34, at 91-92. Lamoureux
speaks with her contact at the Mexican Embassy “quite often” on
that topic. Doc. No. 34, at 92. Lamoureux testified that when
she told her Mexican Embassy contact on April 11, 2017, that ICE
was “standing firm on its efforts for removal,” and that she
would be testifying here, “the embassy just says to me that they
understand, you know, and wish me luck and that we will discuss
this again at our next quarterly meeting [tentatively scheduled
for later in April 2017,] as far as moving forward with a
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resolution.” Doc. No. 34, at 92.
Discussion
The holding in Zadvydas v. Davis, 533 U.S. 678 (2001),
provides the standard for evaluating whether Najera-Castillo’s
continuing confinement comports with federal law. Zadvydas
recognized six months as a presumptively reasonable period of
post final removal order detention to allow the government to
effect an alien’s removal. Id. at 701.
After this 6–month period, once the alien provides good
reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut
that showing. And for detention to remain reasonable, as
the period of prior postremoval confinement grows, what
counts as the “reasonably foreseeable future” conversely
would have to shrink. . . . [A]n alien may be held in
confinement until it has been determined that there is no
significant likelihood of removal in the reasonably
foreseeable future.
Id.
More than a year has passed since ICE took Najera-Castillo
into custody. The evidence shows that Mexico has had a policy
of not repatriating Mexicans with serious medical needs who do
not have family support in Mexico, and there is no evidence
showing that Mexico has waived that policy for Najera-Castillo.
Najera-Castillo has specifically informed ICE and Mexican
officials that he does not have relatives in Mexico. There is
no evidence that he has such family in Mexico. Najera-
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Castillo’s name has not appeared on any Diplomatic Note or other
formal U.S. government communication, specifically asking the
Government of Mexico to accept him for repatriation,
notwithstanding the lack of family support.
The “medical coordination” that ICE has indicated is
ongoing with respect to Najera-Castillo does not appear likely
to end in the foreseeable future. The Boston Consulate’s
January 2017 letter specifically states that the Consulate’s
efforts to find a medical placement for Najera-Castillo in
Mexico have not been fruitful, as Mexican officials have been
unable to find any family members who can care for Najera-
Castillo in Mexico. A Mexican Embassy official has recently
wished ICE “luck” in this matter, without providing any
assurance that progress is occurring in removing the barriers to
Najera-Castillo’s removal. Petitioner has thus provided good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.
Accordingly, the burden shifts to the federal respondents
to rebut the showing that there is no significant likelihood of
removal in the reasonably foreseeable future. Factors relevant
to that inquiry include the total length of detention; the
likelihood of successful future negotiations to secure
repatriation of the individual, Zadvydas, 533 U.S. at 702; and
whether the alien has engaged in dilatory tactics, cf. Reid v.
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Donelan, 819 F.3d 486, 500 & n.4 (1st Cir. 2016) (listing
factors relevant to whether pre-removal period detention, under
8 U.S.C. § 1226(c), comports with due process).
The total length of Najera-Castillo’s detention is
approaching eighteen months. The record does not suggest any
reasonable basis for finding that any substantial portion of
that delay has been attributable to dilatory tactics
attributable to Najera-Castillo. ICE has never charged Najera-
Castillo with failing to cooperate in his removal. Najera-
Castillo’s counsel’s diligent advocacy did not result in any
substantial part of the delay in this case. And while there is
hearsay, embedded within hearsay, that Najera-Castillo did not
consent to having Mexican government officials search for his
family, and did not identify any Mexican family members when
interviewed by consular officials, Najera-Castillo has
consistently reported that all of his family -- his mother,
aunts, uncles, and cousins -- live in the United States. See
Notes attached to Decision to Continue Detention, Feb. 25, 2016,
Ex. V at 8; POCR Worksheet, Feb. 2016, Ex. EE, at 4 (ICE 0016).
No evidence shows that Najera-Castillo has any known,
identifiable Mexican relatives, and the federal respondents have
not shown that if Najera-Castillo had consented to a search for
Mexican relatives, the duration of his ICE detention would have
been shorter.
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Lamoureux testified that ICE believes Najera-Castillo could
be removed to Mexico within thirty days of being transferred to
an ICE facility in Houston, and that nothing stands in the way
of that transfer apart from ICE’s agreement to forebear from
effecting it during this proceeding. See Doc. No. 33, at 63-64.
The federal respondents rely entirely on the track record of
Houston personnel in effecting the removal of three people named
on the Diplomatic Note who needed dialysis, who were removed
within thirty days of being transferred to the ICE detention
facility in Houston. Doc. No. 33, at 59-60; Doc. No. 34, at 51.
The most recent removal of those listed individuals occurred on
March 7, 2017, several weeks after that person had been
transferred to the ICE Houston detention facility from a
facility in Miami. See Doc. No. 33, at 62, 63, 66.
The federal respondents have offered no evidence from which
this court can reasonably conclude that Najera-Castillo’s
removal will follow the same course as those three cases.
Najera-Castillo is not one of the six people listed in the
Diplomatic Note. See Doc. No. 33, at 60. Lamoureux could not
state with certainty whether any similarly-situated Mexicans
have been removed to Mexico, if their names did not appear on
that Diplomatic Note. See Doc. No. 34, at 88, 89, 91. All of
the evidence in the record about the success that the Houston
Mexican Consulate has had in facilitating removals relates only
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to those named on the Diplomatic Note. No new Diplomatic Note
is in the offing. See Doc. No. 34, 91. And ongoing discussions
in the working group relating to alternatives to the requirement
of family support do not appear to have any fixed endpoint or
deadline for completion. Evidence that three people have been
removed within nine months of their placement on a Diplomatic
Note hardly points to a likelihood that removal of Najera-
Castillo will proceed within a reasonably foreseeable time.
The federal respondents have provided no specifics
regarding the “tactics” used by the Houston Mexican Consulate to
facilitate the removal of three people needing dialysis on the
Diplomatic Note. Doc. No. 24, at 58. There is no evidence that
personnel at the Houston Mexican Consulate or in the Houston ICE
Field Office would take any specific steps to effect Najera-
Castillo’s removal that have not already been taken by their
counterparts in Boston. There is thus no evidence from which
this court could reasonably conclude that simply transferring
Najera-Castillo to Houston will put in motion procedures that
ICE and Mexican officials have not already implemented, or have
implemented without success, since ICE first took Najera-
Castillo into custody in December 2015.
This court does not place any substantial weight on
testimony, unsupported by any documentary exhibit, that there
are medical facilities in Mexico that could provide dialysis to
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Najera-Castillo three times per week, as nothing in the record
suggests that Mexican government officials have similarly
concluded that petitioner can access those facilities. ICE’s
own conclusion that there is a “significant likelihood of
removal in the reasonably foreseeable future,” set forth in each
successive decision to detain Najera-Castillo, similarly does
not bear any substantial weight in this court’s analysis; the
factors cited in support of ICE’s conclusions merely report, for
example, that Najera-Castillo is on an internal list of
problematic medical cases maintained by Lamoureux, that contacts
have been made with Mexican officials over the course of the
detention period, and that the Boston Mexican Consulate has
reported an inability to find a medical placement. See
generally Doc. No. 34, at 32; Ex. HH. They do not show that
efforts to effect Najera-Castillo’s removal are moving forward
towards an endpoint that is foreseeable in a reasonable period
of time.
Lamoureux testified that ICE has no control over Mexico’s
decision to repatriate its citizens. See Doc. No. 34, at 54.
The latest communications of Mexican government officials in
Boston regarding their ability to find a medical placement and a
sponsor for Najera-Castillo indicate that they have been unable
to do so. See, e.g., Boston Mexican Consulate Letter, Ex. A.
The simple fact that Mexican government officials have not
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completely abandoned their efforts to repatriate Najera-Castillo
does not justify Najera-Castillo’s detention, where no
discernable progress has occurred, or appears likely to occur in
the reasonably foreseeable future, in finding Mexican relatives
or waiving the family support requirement in his case. Cf.
Zadvydas, 533 U.S. at 702 (although due weight must be given to
likelihood of successful future negotiations, ongoing, good
faith efforts to effectuate removal, per se, do not render
indefinite detention permissible).
The federal respondents have thus not met their burden in
this case to demonstrate that there is a significant likelihood
of removal in the reasonably foreseeable future. Accordingly,
further detention of Najera-Castillo is not lawful under
Zadvydas.
Conclusion
For the foregoing reasons, the district judge should:
1. Grant the petition for a writ of habeas corpus (Doc. No.
1);
2. Direct that respondents release petitioner, subject to
any conditions of supervised release that may be lawfully
imposed, within twenty-one days of the date of the
district judge’s Order; and
3. Direct that the federal respondents file a status report
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in this action no later than thirty days after issuance
of the district judge’s Order, regarding the status of
their compliance with this Order.
By agreement of the parties, the objection period relating
to this Report and Recommendation (“R&R”) under Fed. R. Civ. P.
72(b)(2) is shortened to seven days. That period may be
extended upon motion. Failure to file specific written
objections within that time waives the right to appeal the
district court’s order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 21, 2017
cc: Jacqueline K. Mantica, Esq.
Katherine E. Todd, Esq.
R.J. Cinquegrana, Esq.
Stuart M. Glass, Esq.
Timothy John McLaughlin, Esq.
Steven M. Gordon, Esq.
Suzanne Amy Spencer, Esq.
T. David Plourde, Esq.
Thomas P. Velardi, Esq.
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