UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Christian Rocha

v. Civil No. 19-cv-410-JL Opinion No.

William Barr, Attorney General of the United States, et al.

MEMORANDUM ORDER

Christian A. Rocha has filed a petition for writ of habeas

corpus challenging his detention under

(c) by

U.S. Immigration and Customs Enforcement (“ICE”) on

constitutional due process grounds. He seeks a bond hearing.

The federal government respondents have moved to dismiss the

petition because Rocha is now a member of a pending class action

in the District of Massachusetts. They also argue that Rocha

has failed to state a claim of unlawful detention upon which

relief may be granted.

This court has jurisdiction over Rocha’s petition under

. See Nielsen v. Preap,

.

(2019). The court finds that Rocha states two constitutional

due process claims distinct from the Massachusetts class, and so

denies the government’s motion to dismiss. The case will

proceed on the merits of Rocha’s claims. Applicable legal standard

On a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), “the party invoking the

jurisdiction of a federal court carries the burden of proving

its existence.” Murphy v. U.S.,

(1st Cir.

1995). But the court must “construe the [petition] liberally

and treat all well-pleaded facts as true, according the

[petitioner] the benefit of all reasonable inferences.” See

And any evidence submitted by the parties may ordinarily be

considered. See Carroll v. U.S.,

(1st Cir.

2011).

Background

Rocha is a native and citizen of the Dominican Republic and

entered the United States as a lawful permanent resident in

1986.1 Between 1992 and 2005, he was charged and convicted of

several criminal offenses.2 In 2003, Rocha was convicted in

Massachusetts of two separate offenses of unlawful possession of

a controlled substance with intent to distribute, and sentenced

to 2.5 years in the House of Correction in each case.3 He was

1 Petition (doc. no. 1) ¶ 9. 2 Mem. of Law in Supp. of Mot. to Dismiss (doc. no. 9-1) at 2-4. 3 Id. at 3-4.

2 released on parole in August 2003.4 He has no criminal record

after 2005.5 In 2013, Rocha renewed his lawful permanent

residency.6

A. Immigration proceedings

On December 4, 2018, ICE arrested Rocha. The notice to

appear filed on the day of his arrest alleged that he was

subject to removal from the United States because he had been

convicted of an aggravated felony.7 See

(a)(43)(b), 1227(a)(2)(iii). It identified one of

Rocha’s 2003 convictions as the felony in question, but

erroneously stated that the offense was trafficking in

controlled substance.8 ICE detained Rocha at the Strafford

County House of Correction as a criminal alien under

(c), which requires mandatory detention without a bond

hearing.9 See Preap,

.

4 Petition (doc. no. 1) ¶ 10. 5 Id. ¶ 11; Mem. of Law in Supp. of Mot. to Dismiss (doc. no. 9- 1) at 2. 6 Pet.’s Opp. to Mot. to Dismiss (doc. no. 12) at 12. 7 Petition Ex. 5 (doc. no. 1-5). 8 Id. Rocha was initially been charged with trafficking in cocaine when the case began in 1998, but ultimately pleaded guilty in 2003 to unlawful possession with intent to distribute. See Mem. of Law in Supp. of Mot. to Dismiss (doc. no. 9-1) at 3. 9 Mem. of Law in Supp. of Mot. to Dismiss (doc. no. 9-1) at 4.

3 At Rocha’s first two master calendar hearings, on December

27, 2018 and January 3, 2019, he moved for and was granted brief

continuances to review the allegations and potential relief.10

At the third hearing, on January 10, 2019, the Immigration Judge

noted the discrepancy between the docket sheets submitted by the

government and the notice to appear, directed the parties to

address the issue, and scheduled a hearing for later in the

month.11 Due to a clerical error, the hearing was not held until

February 11, 2019.12 The Immigration Judge granted Rocha’s motion

to terminate and dismissed his removal proceedings without

prejudice.13

ICE kept Rocha in custody and filed a second notice to

appear on February 20, but Rocha alleges that his counsel did

not receive the document until another hearing on March 14.14

The new notice cited both of Rocha’s 2003 convictions.15 Rocha

denied the charge of removability, moved to terminate the

10 Petition (doc. no. 1) ¶¶ 14-15. 11 Id. ¶ 16. 12 Id. 13 Id. ¶ 18. 14 Id. ¶ 19. 15 Id.

4 proceedings, and requested release on bond.16 The immigration

judge denied the motion to terminate and scheduled a further

hearing for March 28 to address the other issues. At that

hearing, the government requested a continuance to provide

evidence of Rocha’s convictions and Rocha argued that he was

entitled to a bond hearing under the terms of an injunction

issued in the District of Massachusetts.17 On April 4, the

Immigration Judge ruled the injunction was limited to detainees

held in Massachusetts and found Rocha removable based on one of

the 2003 convictions.18 He found that the government submitted

insufficient evidence of the other conviction.19 The Immigration

Judge scheduled on hearing on Rocha’s requests for relief for

June 3, 2019.20

Rocha filed his petition for habeas corpus with this court

on April 19, 2019.21 Three days later, the government filed a

petition with the Immigration Court to expedite Rocha’s hearing,

16 Id. ¶ 20-21. 17 Id. ¶ 22. 18 Id. ¶¶ 23-24. 19 Id. ¶ 24. 20 Id. ¶ 25. 21 Petition (doc. no. 1).

5 which Rocha opposed and the Immigration Judge denied.22 On May

31, ICE transferred Rocha to Massachusetts, but returned him to

New Hampshire the same day after realizing that transfer without

advanced notice to this court violated this court’s April 19,

2019 order.23 During this confusion, his immigration counsel

filed an emergency motion for a continuance because of her

inability to reach Rocha.24 Rocha was given additional time to

consult with his counsel on June 3, and the Immigration Judge

ultimately conducted only brief proceedings before continuing

the hearing to June 11.25 On June 11, the Immigration Judge made

an interim decision that Rocha is not eligible for cancellation

of removal or asylum because the convicted drug crimes are

aggravated felonies, and took under advisement his requests for

withholding of removal and relief under the convention against

torture, with a written decision to issue shortly.26

B. Rocha’s petition

Rocha’s petition sets out two claims for relief. First, he

argues that subjecting him to mandatory detention based on a

22 Pet.’s Opp. to Mot. to Dismiss (doc. no. 12) at 20. 23 See Notice of Transfer (doc. no. 14). 24 Pet.’s Surreply (doc. no. 17) at 3. 25 Id. 26Parties’ Joint Resp. to the Court’s June 11, 2019 Order (doc. no. 18) at 1.

6 conviction received more than 15 years ago violates the Due

Process Clause of the Fifth Amendment.27 He contends that this

kind of constitutional challenge to mandatory detention was

explicitly contemplated by the Supreme Court’s recent decision

in Preap.

(“Our decision today on the meaning

of that statutory provision does not foreclose as-applied

challenges—that is, constitutional challenges to applications of

the statute as we have now read it.”). Second, Rocha claims

that his current mandatory detention without a bond hearing is

unconstitutionally prolonged.28 He seeks declaratory relief and

a bond hearing before this court or an Immigration Judge.29

C. The government’s motion to dismiss

The government moves to dismiss Rocha’s petition under

Federal Rule of Civil Procedure 12(b)(1).30 It argues that the

court should dismiss or stay the petition because Rocha has

become a member of a certified Rule 23(b)(2) class pending in

the District of Massachusetts.31 See Fed. R. Civ. P. 23(b)(2).

27 Petition (doc. no. 1) ¶¶ 49-53. 28 Petition (doc. no. 1) ¶¶ 54-57. 29 Id. at 19. 30 Mot. to Dismiss (doc. no 9). 31Mem. in Supp. of Motion to Dismiss (doc. no. 9-1) at 1. The government alleges that Rocha became a member of the class as of June 3, 2019, when his detention length reached six months.

7 In Reid, et al. v. Donelan, the District of Massachusetts has

certified a class of “[a]ll individuals who are or will be

detained within the Commonwealth of Massachusetts or the State

of New Hampshire pursuant to

(c) for over six

months and have not been afforded an individualized bond hearing

or reasonableness hearing.” No. 3:13-cv-30125-PBS (D. Mass Oct.

23, 2018), ECF no. 416 at 23. The government argues that Rocha

is barred from pursuing an individual habeas petition because he

cannot opt out of the Reid class and will be bound by the

holding in Reid.32 Separately, the government argues that the

court should deny Rocha’s petition because his mandatory

detention is not unconstitutional, and so he has failed to state

a claim of unlawful detention upon which relief may be granted.33

Opposing the motion, Rocha does not contest that he is now

a member of the Reid class, but maintains that he has two due

process claims distinct from the class action. First, he argues

in his petition that the time gap between his criminal

convictions and current mandatory detention violates the Due

Process Clause.34 The Reid class does not raise any time-gap

claim and is limited to challenging prolonged detention.

32 Mem. in Supp. of Motion to Dismiss (doc. no. 9-1) at 6-9. 33 Id. at 9-16; Mot. to Dismiss (doc. no. 9). 34 Pet.’s Opp. to Mot. to Dismiss (doc. no. 12) at 3-4.

8 Second, Rocha contends that while the Reid class seeks a blanket

rule requiring a bond hearing or reasonableness hearing after

six months of detention, he seeks only a determination that his

detention is unconstitutionally prolonged under the particular

facts of his case.35 To the extent that his petition raised a

claim based on a proposed blanket rule, he withdraws it.36 The

government’s reply briefly suggests that considering the

specific circumstances of Rocha’s prolonged detention would

undermine the Reid class certification order.37 Otherwise, the

parties’ reply and surreply address the merits of Rocha’s

constitutional claims.38

Analysis

Although the parties agree that Rocha is a member of the

Reid class, he has raised two constitutional due process claims

which do not overlap with the Reid class action and upon which

relief could potentially be granted. The court thus denies the

government’s motion to dismiss his petition. A denial of a

motion to dismiss, however, does not necessarily require that a

habeas petition be granted, but rather permits litigation to

35 Id. at 4-6. 36 Id. at 4 n.2. 37 Reply on Mot. to Dismiss (doc. no. 15) at 2. 38 Id.; Surreply on Mot. to Dismiss (doc. no. 17).

9 proceed. The court is not prepared to rule on the merits of

Rocha’s non-Reid claims on the current record. The court

therefore requests further submissions from the parties and will

schedule a hearing on the merits of the petition.

A. Reid class action

A Rule 23(b)(2) class is mandatory. Class members may not

automatically opt-out. See Wal-Mart Stores, Inc. v. Dukes,

(2011). But Rocha does not dispute his membership

in the Reid class or seek to opt out from it. Instead, he

raises distinct claims that can be resolved without duplicating

the Reid litigation or creating inconsistent standards. And

these claims in this case can be resolved without undermining or

interfering with the class litigation or result.

As discussed supra, the Reid class seeks a blanket ruling

that individuals detained under

(c) for longer

than six months are constitutionally entitled to an

individualized bond hearing or reasonableness hearing. The

likely resolution of that litigation thus appears to be that a

blanket rule either exists (at some period or set of conditions)

or does not exist. Resolving Rocha’s claims would not interfere

with either result. Reid does not involve any issues similar to

Rocha’s time-gap claim. Absent any overlap, Reid provides no

basis to prevent Rocha from pursuing this claim. While Rocha’s

10 prolonged detention claim is much more like the Reid claim, the

theory of his claim is distinct. He does not seek to rely on a

blanket rule or even the mere length of his detention, but on an

assessment of all the facts of his particular case. When

opposing class certification in Reid, the government argued that

“a constitutional challenge to § 1226(c) requires an

individualized analysis to determine whether detention is

unreasonable.” No. 3:13-cv-30125-PBS, ECF no. 416 at 17. If

Reid concludes with a ruling that the government is correct, and

no blanket rule is required by due process, habeas relief based

on such an individualized analysis may nonetheless remain

available to some class members. Thus, Rocha’s prolonged

detention claim is distinct from that pressed by the Reid class.

The government has not identified any way in which

considering Rocha’s individual prolonged detention claim would

interfere with the Reid class action or undermine the rationales

for class certification. Rulings that Rocha is not entitled to

a bond hearing on a blanket-rule theory, but is entitled to one

on an individual-circumstances theory, or vice-versa, would not

appear to pose any obvious practical inconsistencies prejudicial

to any party. The Reid court is not considering Rocha’s

particular circumstances, so there is no direct duplication.

And any conservation of judicial resources that might result

from waiting to see if Rocha receives relief via Reid is

11 outweighed by the fact that he would remain subject in the

interim to mandatory detention that he alleges is

unconstitutional for separate reasons.

Since Rocha brings two constitutional claims distinct from

the Reid class action which can be resolved without interfering

with that action, his membership in the Reid class is no basis

to deny his petition.

B. Time-gap claim

Rocha raises a due process claim based upon the time gap

between the conviction underlying his removability (his release

from criminal custody related to that conviction)39 and the

beginning of his mandatory detention under

(c).

He has stated a claim upon which relief might be granted, but

the court does not yet determine whether he is in fact entitled

to relief.

The Supreme Court recently determined that § 1226(c) does

not impose a time limit on the application of mandatory

detention to a criminal alien taken into custody after release

from criminal custody. Preap,

. In other

39Rocha specifies the gap between his conviction and immigration detention, but many of his arguments focus on the development of community ties during the time gap. See Pet.’s Opp. to Mot. to Dismiss. Such arguments are far weaker if applied to time when the individual is in criminal custody. In any case, the difference between Rocha’s conviction and release is less than a year.

12 words, as a matter of statutory construction, § 1226(c) requires

the government to take a criminal alien into custody and detain

the alien without a bond hearing, even if substantial time has

passed since the alien was released from criminal custody. But

the Court made clear that the parties had only presented it with

a statutory interpretation question, and it did not apply the

canon of constitutional avoidance because “the statute is

clear.” Preap,

. Thus, its decision “on the

meaning of that statutory provision does not foreclose as-

applied challenges—that is, constitutional challenges to

applications of the statute as we have now read it.”

Rocha

suggests that the Court would have indicated if it believed no

valid constitutional challenge was possible.40 The government

contends that the Court found that a time gap does not generally

create a constitutional issue, and that “unique factual

circumstances” are required for an as-applied challenge.41

Neither inference is supported by Preap. The Court reached no

constitutional holding, and so made clear that constitutional

challenges were not foreclosed. Rocha has brought such a

challenge.

40 Pet.’s Opp. to Mot. to Dismiss (doc. no. 12) at 10. 41 Reply on Mot. to Dismiss (doc. no. 15) at 2.

13 Given the recency of Preap, the parties unsurprisingly rely

on authorities predating that opinion in arguing the merits of

Rocha’s claim.42 They have discovered no binding authority that

would definitively require this court to grant or deny Rocha’s

claim. As Preap does not foreclose Rocha’s claim, he has stated

a claim on which relief might be granted. The parties will

proceed to litigate the merits of the claim.

C. Prolonged-detention claim

The court finds that Rocha has stated a prolonged detention

claim based on the facts of his case, but does not resolve the

claim at this stage. As both parties acknowledge,43 courts

including this one have considered due process challenges to an

individual’s prolonged mandatory detention according to a set of

guidepost principles set out in a First Circuit Court of Appeals

decision factors in Reid, et al. v. Donelan, later withdrawn for

reasons that do not undermine the utility of the factors.

(1st Cir. 2016), vacated and remanded in part,

No. 14-1270, 14-1803, 14-1823,

(1st Cir. May 11,

2018); see Hussein v. Brackett, 18-cv-921-JL (D.N.H. Nov. 9,

2018) (ECF no. 18). There is thus a relatively clear framework

42See Mem. in Supp. of Mot. to Dismiss (doc. no. 9-1) at 11-15; Pet.’s Opp. to Mot. to Dismiss (doc. no. 12) at 8-11. 43Petition (doc. no. 1) ¶¶ 43-44; Reply on Mot. to Dismiss (doc. no. 15) at 4-5.

14 for assessing Rocha’s prolonged detention claim, although the

Reid factors are not exhaustive.

. The court

will use this framework to resolve this claim, and appreciates

the parties’ submissions thus far. In any case, Rocha has

sufficiently stated a claim such that his petition is not

subject to dismissal.

D. Further proceedings

The court will hold a hearing on the merits of Rocha’s

petition on July 17, 2019. The parties shall file memoranda of

points and authorities no later than July 9 addressing at least

the following issues:

• Demore v. Kim suggests that “the justification for

(c) is based upon the Government's concerns over the risks of flight and danger to the community.”

(2003) (Kennedy, J., concurring). Does Demore’s holding depend on the presence of both of these concerns?

• If there are constitutional due process limitations on the time gap between criminal convictions or custody and the beginning of mandatory confinement pursuant to 8 U.S.C 1226(c), what form do those limits take? (E.g. a bright- line rule, individualized analysis, or some other standard).

• If there are constitutional due process limitations on a time gap, what even is the time gap measured from? (E.g. conviction, release from criminal custody).

• Should the following be considered as factors in a prolonged-detention analysis? o Any time gap prior to the beginning of immigration custody and mandatory detention.

15 o A change in the asserted basis for removability. o The alleged renewal of Rocha’s residency status.

Conclusion

Rocha has stated two due process claims that do not overlap

with the Reid class action. The government’s motion to dismiss

the petition is DENIED.44 The court will hold a hearing on the

merits of Rocha’s petition on July 17, 2019. The parties shall

file memoranda of points and authorities no later than July 9,

2019. Respondents shall provide the court with at least 48

hours advance notice of any scheduled removal or transfer of

petitioner out of this court’s jurisdiction, as required by the

court’s April 19, 2019 order.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: June 18, 2019

cc: Gilles R. Bissonnette, Esq. Henry Klementowicz, Esq. SangYeob Kim, Esq. Michael T. McCormack, AUSA

44 Document no. 9.

16