2

2. Ms. Castillo is detained in the custody of U.S. Immigration and Customs Enforcement

(“ICE”), pending the determination of removal proceedings under the Immigration and

Nationality Act. ICE determined to detain her along with her two children, ages six and twelve,

in a secure facility, even though she passed a credible fear interview establishing that she has a

“significant possibility” of establishing a claim for political asylum, and she posed no danger or

flight risk. Ms. Castillo applied for a bond redetermination before an Immigration Judge, who

granted her release conditioned on payment of a bond of fifteen thousand dollars ($15,000).

3. Ms. Castillo has an immigration attorney, a sponsor who is willing and able to assist her,

and a fixed address where she will live upon release. She poses no flight risk or danger. She

cannot afford to pay the fifteen thousand dollar bond, and as a result she remains detained along

with her minor children, who suffer from health problems.

4. The bond amount set by the immigration judge is excessive to the purpose of securing her

attendance at future hearings in her removal proceedings, in violation of the Immigration and

Nationality Act and implementing regulations, and also in violation of Ms. Castillo’s rights

under the Due Process Clause of the U.S. Constitution.

JURISDICTION AND VENUE

5. This court has jurisdiction over this habeas petition pursuant to 28 U.S.C. §2241 (habeas

corpus statute), 28 U.S.C. §1651 (the All Writs Act), 28 U.S.C. §1331 (federal question) and

U.S. Const., Art. I., § 9, Cl. 2, the Suspension Clause of the U.S. Constitution. See INS v. St.

Cyr, 533 U.S. 289 (2001). This court also has jurisdiction over Ms. Castillo’s statutory and

constitutional claims pursuant to 28 U.S.C. §1331, which confers jurisdiction to consider federal

questions.

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6. District courts have jurisdiction to hear habeas petitions by non-citizens who challenge

the lawfulness of their detention under federal law, pursuant to 28 U.S.C. 2241. Demore v. Kim,

538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

7. This court may grant relief pursuant to 28 U.S.C.§§ 2241, 2243; 28 U.S.C. §1651, and 28

U.S.C. §2201-02 (Declaratory Judgment Act).

8. Pursuant to 28 U.S.C. §2241(d), venue is proper in the Western District of Texas because

Ms. Castillo is detained by ICE at the Karnes County Residential Center, in Karnes City, Texas,

which is located within this district.

9. Venue is proper under 28 U.S.C. §1391(b) because a substantial part of the events or

omissions giving rise to this action occurred in this District.

PARTIES

10. Petitioner Ruth Kelly Castillo is a citizen of El Salvador. She fled her native El Salvador

and came to the United States on or about August 3, 2014, along with her two children, Allison

Murga Castillo, age 12, and Gervin Murga Castillo, age 6, and her husband Gervin Isaac Murga

Ramírez. She is applying for political asylum to remain in the United States. Ms. Castillo and her

two children are currently detained at an ICE secure family immigration detention facility known

as the Karnes County Residential Center in Karnes City, Texas.

11. Respondent Rose Thompson is the warden of the Karnes County Residential Center in

Karnes City, Texas. Ms. Thompson is an employee of The GEO Group, Inc., which operates the

Karnes County Residential Center pursuant to a contract with Karnes County, Texas. Karnes

County operates the facility for ICE pursuant to an Intergovernmental Services Agreement with

ICE. As the warden, Ms. Thompson is the immediate physical custodian of Ms. Castillo and her

children.

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12. Respondent Juanita Hester is an Assistant Field Office Director for the San Antonio

District of ICE. As the ICE official in charge of the Karnes County Residential Center, she has

custody over Ms. Castillo and her children and is authorized to release them. She is sued in her

official capacity.

13. Respondent Enrique Lucero is the Field Office Director for the San Antonio District of

ICE. As such, he oversees all ICE Enforcement and Removal Operations functions, operations,

and detainees in the San Antonio District, including detainees in the Karnes County Residential

Center. He has legal custody over Ms. Castillo and her children and is authorized to release

them. He is sued in his official capacity.

14. Respondent Thomas Winkowski is the Acting Director for U.S. Immigration and

Customs Enforcement (“ICE”). As such, he oversees all ICE components including Enforcement

and Removal Operations, which is responsible for the apprehension, detention, and removal of

non-citizens, and the management and oversight of civil immigration detention. He has legal

custody over Ms. Castillo and her children and is authorized to release them. He is sued in his

official capacity.

15. Respondent Jeh Johnson is the Secretary of the United States Department of Homeland

Security (“DHS”). Under the Homeland Security Act of 2002 (Pub. L. 107-296), DHS assumed

all of the functions of the former Immigration and Naturalization Service. Section 441 of the

Homeland Security Act created the United States Immigration and Customs Enforcement

(“ICE”) and authorizes ICE to enforce the immigration laws. Mr. Johnson is responsible for the

administration of the immigration laws pursuant to 8 U.S.C. § 1103, is empowered to grant

asylum or other relief, and is a legal custodian of Ms. Castillo and her children. He is sued in his

official capacity.

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16. Respondent Eric H. Holder, Jr., is the Attorney General of the United States. As such, he

has responsibility for the administration of the immigration laws pursuant to 8 U.S.C. § 1103,

oversees the Executive Office of Immigration Review, is empowered to grant asylum or other

relief, and is a legal custodian of Petitioner. He is sued in his official capacity.

FACTS

17. Ruth Kelly Castillo is a native and citizen of El Salvador.

18. On or about August 3, 2014, Ms. Castillo entered the United States with her two children,

Allison Murga Castillo, age 12, and Gervin Murga Castillo, age 6, and her husband Gervin Isaac

Murga Ramírez.

19. Ms. Castillo fled El Salvador because she and her children were being targeted by gangs

in El Salvador, and the government could not protect her. Her husband, Gervin Isaac Murga

Ramírez, was a police officer with the Salvadoran national police. In early 2014, he was involved

in three police shoot-outs with Barrio 18 (also known as M-18) gang members. That gang later

discovered his identity and began to threaten the life of Ms. Castillo’s husband and his family

members.

20. Gang members threatened the life of Ms. Castillo, her daughter, her son, and other family

members on numerous occasions. The Barrio 18 gang targeted Ms. Castillo and her children

because her husband was a police officer with the Salvadoran national police, and he had been

involved with shoot-outs with the gang. Soon after the gang learned of Ms. Castillo’s husband’s

identity, gang members began to follow him.

21. On three separate occasions in May 2014, Barrio 18 gang members came to Ms.

Castillo’s home. They banged on the door, shouted threats and obscenities at her, and once,

threw rocks through the roof of their home. Each time, Ms. Castillo called the police. Twice the

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police arrived hours after the gang members had left, and once they did not come. Ms. Castillo

filed police reports, and the Barrio 18 gang further targeted her and her children.

22. Ms. Castillo and her daughter began receiving numerous threatening calls and text

messages on their mobile phones. These calls and messages threatened them with rape, torture,

gruesome death, and dismemberment. Ms. Castillo and her daughter changed phone numbers a

number of times, but the threatening calls and messages continued.

23. One particular Barrio 18 gang member who lived in their neighborhood would draw his

finger across his throat when he saw a member of the family.

24. On May 28, 2014 Ms. Castillo and her husband reported the ongoing threats to the

authorities. The next day, Barrio 18 gang members murdered Ms. Castillo’s uncle, who lived

next door and had raised her like his own child. Ganga members fatally shot Ms. Castillo’s uncle

numerous times in a highly-publicized street shootout. After his murder, Barrio 18 gang

members called Ms. Castillo’s aunt and told her that they would kill the whole extended family,

especially Ms. Castillo and her husband.

25. A few days later, Barrio 18 members went to look for Ms. Castillo’s son at his school.

When the teacher told the gang members that Ms. Castillo’s son was not at school that day, the

gang members left. His teacher told Ms. Castillo not to bring her son back to school out of fear

for his safety.

26. As the threats escalated, Ms. Castillo and her husband sought protection from the police.

The police told them that they did not have the resources to help them, except to allow Ms.

Castillo’s husband to take his police weapon home for protection.

27. In late June, Ms. Castillo’s daughter collapsed on the street and had to be hospitalized.

The doctors at the hospital concluded that she had collapsed because of the stress faced by the

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violence and death threats against her and her family. They also performed a spinal tap to rule

out a seizure.

28. As a result of the repeated death threats, Ms. Castillo felt trapped in her own home and

rarely left home. On one occasion when she left, she was approached in the street by a Barrio 18

member who threatened to kill her children.

29. In early July, Ms. Castillo and her husband decided to flee from El Salvador. The death

threats had continued, the police could not help, and Ms. Castillo and her husband feared for

their own lives and the lives of their children. On or about July 26, 2014, after her daughter had

recuperated from her spinal tap, Ms. Castillo and her family fled El Salvador. After coming to

the U.S., Ms. Castillo learned that her mother and other family members were threatened by

Barrio 18 members who were looking for her and her husband. She also learned that her cousin

had been murdered.

30. On or about August 3, 2014, Ms. Castillo and her children were apprehended by Border

Patrol near Hidalgo, Texas, placed in expedited removal proceedings, and detained in ICE

custody.

31. On or about August 7, 2014, Ms. Castillo and her children were transported to an

immigration detention center called Karnes County Residential Center in Karnes City, Texas,

where they remain detained. Ms. Castillo’s husband was taken to an immigration detention

center in Florida, where he remains detained while pursuing his asylum claim.

32. On or about August 18, 2014, an asylum officer conducted a credible fear interview with

Ms. Castillo. In the interview, Ms. Castillo indicated that she was afraid to return to her home

country. She also said that she had been threatened by unidentified members of Barrio 18

because of her husband’s opposition to the gang as a police officer. She indicated that her home

8

had been attacked by the Barrio 18, her daughter had been threatened, and that the Barrio 18 had

visited her son’s school in search of him. Ms. Castillo further explained that the Barrio 18 gang

had murdered her uncle. Finally, she stated that she had fled El Salvador for her own safety, and

the safety of her family.

33. Ms. Castillo passed her credible fear interview.

34. Since she had passed her credible fear interview, DHS took Ms. Castillo and her children

out of expedited removal proceedings and placed them in removal proceedings, where they could

apply for asylum. On or about August 27, 2014, DHS issued a written Notice to Appear to Ms.

Castillo, referring her to removal proceedings under Section 240 of the Immigration and

Nationality Act.

35. On August 27, 2014, DHS also issued a Notice of Custody Determination, in which it

determined to continue holding Ms. Castillo and her children in detention. On the same date, Ms.

Castillo requested a redetermination of her custody status by an Immigration Judge.

Initial Bond Hearing

36. On September 11, 2014, a custody redetermination hearing was held before Immigration

Judge Gary Burkholder in San Antonio, Texas. Ms. Castillo was present at the hearing via

videoconference. She was not represented by counsel.

37. At the September 11 hearing, Ms. Castillo informed the Immigration Judge that she

intended to stay with family members who lived in the United States. Ms Castillo indicated that

her father-in-law lived in Tennessee and that her husband’s uncle lived in Los Angeles. After the

hearing, the Immigration Judge determined that Ms. Castillo and her children should be released

upon condition of payment of bond in the amount of fifteen thousand dollars ($15,000).

9

38. On October 15, 2014, Immigration Judge Burkholder issued a written decision

memorializing his original September 11, 2014 oral decision to release Ms. Castillo on condition

of payment of a fifteen thousand dollar ($15,000) bond. The judge reasoned that any “national

security” concerns raised by DHS were not enough to hold the family without bond. He

concluded, however, that Ms. Castillo’s use of smugglers to aid her flight from El Salvador to

the United States showed that she was a flight risk.

39. On October 2, 2014, the Department of Homeland Security appealed the Immigration

Judge’s bond decision of September 11 to the Board of Immigration Appeals. On October 10,

2014, Ms. Castillo through her counsel cross-appealed the Immigration Judge’s original bond

redetermination of September 11 to the Board of Immigration Appeals. That appeal is currently

pending.

Redetermination of Bond Based on Changed Circumstances

40. On September 22, 2014, Ms. Castillo obtained counsel for her removal proceeding,

through Melissa Cuadrado of the Immigration and Human Rights Clinic, at St. Mary’s

University School of Law Center for Legal and Social Justice, in San Antonio, Texas. Ms.

Castillo’s attorneys are committed to representing her throughout her immigration and asylum

process.

41. On September 29, 2014, Ms. Castillo appeared before the Immigration Judge for a master

calendar hearing in her removal proceeding. The Immigration Judge gave Ms. Castillo additional

time to file her asylum application.

42. On October 9, 2014, Ms. Castillo filed a motion through counsel for redetermination of

bond based on changed circumstances. In the motion, Ms. Castillo asked for a reduction of the

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bond amount to two thousand dollars ($2000) and presented several items of evidence showing

that she is not a flight risk.

43. First, Ms. Castillo submitted documents from a U.S. citizen sponsor who was willing to

financially assist her and her children upon release and pending the completion of removal

proceedings. Ms. Castillo’s sponsor is a U.S. citizen and close family friend of her in-laws, who

live in Smyrna, Tennessee. The sponsor has a long relationship with the Castillo family, is

employed, and is willing to provide financial and other support to Ms. Castillo and her children.

Ms. Castillo provided a fixed address in Tennessee where she would be living upon release. Ms.

Castillo also submitted a pay stub from the sponsor showing that she is gainfully employed.

44. Second, Ms. Castillo indicated that she had obtained pro bono counsel for her removal

proceeding, and that relevant research showed that representation by counsel led to very low

flight risk for noncitizens in removal proceedings. Third, Ms. Castillo submitted newspaper

articles from El Salvador regarding the murder of her uncle, Jose Evelio Quintanilla Merino,

further establishing her credibility with regard to facts relevant to her asylum claim.

45. In the motion, Ms. Castillo also made additional arguments in support of her release.

First, she argued that DHS was required to release Ms. Castillo’s children under the settlement

agreement in Flores v. Reno. Flores v. Meese, No. 85–CV–4544 (C.D. Cal. September 16, 1996).

Second, Ms. Castillo argued that her continued detention by DHS was not based on an

individualized assessment of risk of flight or danger, but rather justified by an argument that

detention of Central American family groups was necessary to deter illegal migration by other

Central Americans, and therefore her detention violated the INA and the U.S. Constitution.

Third, Ms. Castillo argued that DHS’s arguments for her continued detention based on the

11

deterrence of other illegal migrants were both factually baseless and arbitrary as a legal matter,

and provided supporting expert affidavits.

46. On October 14, 2014, Immigration Judge Burkholder denied Ms. Castillo’s motion for

redetermination of bond based on changed circumstances. In his decision, the Immigration Judge

concluded that there were no changed circumstances, reasoning that obtaining counsel did not

change the factors relating to bond, and that evidence of a sponsor did not establish that Ms.

Castillo had ties to any particular place in the United States.

47. On October 24, 2014, Ms. Castillo, through her counsel, appealed the Immigration

Judge’s decision to deny the motion for bond redetermination based on changed circumstances to

the Board of Immigration Appeals. That appeal is currently pending.

Request for Humanitarian Release

48. Ms. Castillo’s attorney filed a letter with ICE on November 7, 2014 requesting

humanitarian release of Ms. Castillo and her children based on a number of medical and mental

health care needs that are not being adequately met in detention. Attached to the parole letter

were independent psychological evaluations of Ms. Castillo and her daughter Alison, as well as

medical records for Ms. Castillo, her daughter Alison, and her son Gervin.

49. After evaluating Ms. Castillo, the psychologist concluded that Ms. Castillo suffers from

Anxiety Disorder and Depression Disorder, because of the traumas experienced over the past few

months. These disorders manifest in recurrent lumber pain, chest pain affecting breathing, loss of

sleep, bouts of tremors, and chronic fatigue.

50. The psychologist also evaluated Ms. Castillo’s daughter Alison and concluded that

Alison suffers from Post-Traumatic Stress Disorder, while also manifesting severe symptoms of

depression and anxiety.

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51. Ms. Castillo’s daughter Allison also experiences numbness and loss of movement in her

left leg as a result of her spinal tap in El Salvador. On November 6, 2014, Alison was referred to

medical tests after a day of severe stomach pain and vomiting. Medical staff at Karnes did not

explain to Ms. Castillo the result of the tests.

52. Ms. Castillo’s six-year old son Gervin also has serious medical needs that are unmet. He

also has suffered from an infection in his penis while at the detention center. He has experienced

weight loss during his detention. His rhinitis and severe allergies have worsened, and although he

was receiving regular allergy shots in El Salvador, he is not receiving any regular allergy

medication while in detention.

53. Due to their continued detention in Karnes, Ms. Castillo, her daughter, and her son are

not able to access appropriate medical and mental health care and treatment.

54. Ms. Castillo is not able to pay the bond amount of fifteen thousand dollars ($15,000).

LEGAL BACKGROUND

55. Under 8 U.S.C. §1225(b)(1), certain persons who are seeking admission to the United

States may be placed into “expedited removal” proceedings. Section 1225(b)(1)(A)(iii)

authorizes the Attorney General to apply expedited removal to certain inadmissible non-citizens

located within the United States “who have not been admitted or paroled” and who cannot

demonstrate that they have been continuously physically present in the United States for two

years. 8 U.S.C. §1225(b)(1)(A)(iii). Pursuant to this provision, in 2004, the Attorney General

began to apply expedited removal to persons within the United States who are allegedly

apprehended within 100 miles of the border and who are unable to demonstrate that they have

been physically present in the U.S. for 14 days. See 69 Fed. Reg. 48877 (Aug. 11, 2004). Ms.

13

Castillo and her children entered the United States, were arrested, and were placed into expedited

removal under this authorization.

56. All persons subjected to expedited removal are detained until the conclusion of expedited

removal procedures, but may be paroled under certain circumstances, including for humanitarian

reasons or if release is in the public interest. 8 C.F.R. §235.3(b)(2)(iii); ICE Memorandum,

Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, January 4,

2010.

57. All persons subject to expedited removal are entitled to an interview with an asylum

officer if they indicate either an intention to apply for asylum or a fear of returning to their

country. 8 U.S.C. §1225(b)(1)(A)(ii); 8 C.F.R. §235.3(b)(4). If the noncitizen is referred to an

asylum officer, the officer conducts a “credible fear interview” that is designed “to elicit all

relevant and useful information bearing on whether the applicant has a credible fear of

persecution or torture.” 8 C.F.R. §208.30(d).

58. If a noncitizen is found by the asylum officer to have a “credible fear,” she may not be

removed until her application for asylum is adjudicated. 8 U.S.C. §1225(b)(1)(B)(ii).

59. Noncitizens who satisfy the credible fear standard are taken out of “expedited removal”

and placed into removal proceedings under INA Section 240. 8 U.S.C. §1225(b)(1)(B)(ii); 8

C.F.R. §208.30(f). They are no longer subject to the provision requiring detention throughout the

expedited removal process. In the removal proceeding, the noncitizen may develop a full record

on the asylum claim before an Immigration Judge, and may appeal an adverse decision to the

BIA and court of appeals. 8 U.S.C. §1229. Ms. Castillo passed her credible fear interview and

was referred to Section 240 removal proceedings.

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60. To refer a noncitizen who has passed the credible fear interview to removal proceedings,

DHS issues a form known as a “Notice to Appear” to the noncitizen, detailing the inadmissibility

charges and providing notice of the time and date of the first hearing in the removal proceeding.

At the same time, DHS makes a determination as to whether to continue to hold the noncitizen

and her children in custody or to release her on her own recognizance or to release her on

condition of payment of a bond amount. 8 C.F.R. §1236.1. DHS provides a written notice of the

custody determination to the noncitizen, on a form entitled “Notice of Custody Determination.”

If DHS determines to continue detaining her, the notice does not contain any reasons for that

decision. Here, DHS issued a Notice of Custody Determination in which it determined to

continue detaining Ms. Castillo and her children pending their removal proceedings.

61. Noncitizens who are placed in removal proceedings under INA Section 240 may be

detained under 8 U.S.C. §1226(a). Detention under §1226(a) is not mandatory. The Attorney

General and the Department of Homeland Security share authority over the detention and release

of noncitizens. 8 U.S.C. §1103; 8 C.F.R.§§ 236.1, 1236.1. Ms. Castillo and her children are

presently detained pursuant to §1226(a).

62. Pursuant to 8 U.S.C. §1226(a), DHS may continue to detain a noncitizen pending the

completion of removal proceedings, or DHS may release the noncitizen, either on a bond of at

least $1500 or on conditional parole. 8 U.S.C.A. §1226(a). DHS may not detain a noncitizen

under §1226(a) unless she poses a risk of flight or danger to others that cannot be ameliorated

through conditions such as payment of bond. Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976);

Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006).

63. A noncitizen detained by DHS pursuant to 8 U.S.C. §1226(a) may seek redetermination

of her custody status before an Immigration Judge. 8 C.F.R. §1003.19; 8 C.F.R. §1236.1(d)(1). If

15

redetermination is sought, the Immigration Judge must hold a hearing. At the hearing, the

noncitizen may submit documents and information in support of her request for redetermination

of custody status. The Immigration Judge may order release, or release on condition of payment

of bond of at least $1500, or she may order continued detention, depending on whether the

noncitizen poses any flight risk or danger. Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976);

Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). Ms. Castillo sought redetermination before the

Immigration Judge, and he set a bond of fifteen thousand dollars.

64. If an Immigration Judge determines that continued detention is warranted, the noncitizen

may make a subsequent motion for redetermination to the Immigration Judge based upon a

material change in circumstances. 8 C.F.R. §1003.19(e); see Matter of Uluocha, 20 I&N Dec.

133 (BIA 1989) (holding that Immigration Judges must make a new determination on the merits

when a noncitizen shows changed circumstances). Ms. Castillo sought redetermination based on

changed circumstances, and the Immigration Judge refused to lower her bond.

65. An Immigration Judge should not require payment of bond as a condition of a

noncitizen’s release unless bond is needed to ameliorate a risk of flight. Even then, the bond may

not be set at an amount greater than what is necessary to secure the noncitizen’s presence

through the completion of removal proceedings. See Matter of Guerra 24 I. & N. Dec. 37 (BIA

2006); Matter of Patel, 15 I. & N. Dec. at 666.

66. Regulations under the INA provide that a minor who is held in immigration custody shall

be released, in order of preference, to: 1) a parent, 2) a legal guardian, or 3) an adult relative. 8

C.F.R. §1236.3(b)(1)(i)-(iii). Regulations further provide that if the minor has a parent in

immigration detention, then simultaneous release of the minor and the parent “shall” be

evaluated on a case-by-case basis. 8 C.F.R. §1236.3(b)(2).

16

67. There are no further administrative procedures that Petitioner is required to exhaust.

68. No district court has previously addressed the merits of Petitioner’s claims for release.

GROUNDS FOR RELIEF

FIRST GROUND FOR RELIEF

Violation of the Immigration and Nationality Act and Implementing Regulations

Against All Respondents

69. The foregoing allegations are repeated and re-alleged as though fully set forth herein.

70. Respondents have violated Petitioner’s statutory and regulatory rights. The Immigration

Judge set a bond amount of fifteen thousand dollars ($15,000) that was excessive in relation to

the purpose of securing Petitioner’s attendance at future removal hearings. The imposition of a

bond amount that significantly exceeds an amount necessary to secure the noncitizen’s presence

at further removal proceedings violates the INA and implementing regulations. 8 U.S.C.

§1226(a); 8 C.F.R. §§236.1, 1236.1; Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976); Matter of

Guerra, 24 I. & N. Dec. 37 (BIA 2006).

71. Ms. Castillo’s continued detention despite the fact that she presently poses no flight risk

or danger violates the INA and implementing regulations. 8 U.S.C. §1226(a); 8 C.F.R. §§236.1,

1236.1; Matter of Patel; Matter of Guerra.

72. As a direct and proximate cause of Respondents’ actions, Petitioner and her children were

and are continuing to be subject to unlawful and needless detention, in violation of 8 U.S.C.

§1226(a) and 8 C.F.R. §§236.1, 1236.1, and are entitled to release.

SECOND GROUND FOR RELIEF

Violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution

Against All Respondents

73. The foregoing allegations are repeated and re-alleged as though fully set forth herein.

17

74. The Due Process Clause of the Fifth Amendment to the United States Constitution

provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process

of law.”

75. The Due Process Clause protects noncitizens from arbitrary immigration detention.

Zadvydas v. Davis, 533 U.S. 678, 694 (2001). Freedom from imprisonment “lies at the heart” of

the liberty that the Due Process Clause protects; liberty is the norm, and detention is the

exception. Id. at 694. Due process requires that civil detention have a reasonable relation to a

legitimate governmental purpose. Id.; Foucha v. Louisiana, 504 U.S. 71, 79 (1992). Legitimate

government purposes for immigration detention include flight risk or danger. Id. When the

individual no longer poses the threat for which she was detained, the detention no longer bears a

reasonable relation to its original purpose. Zadvydas, 533 U.S. at 690-92; Foucha, 504 U.S. at

77-78. Civil immigration detention must not be punitive. Id.

76. Due process also requires immigration detention to be implemented by constitutionally

adequate procedures. Demore v. Kim, 538 U.S. 510, 532-33 (2003) (Kennedy, J., concurring);

Zadvydas, 533 U.S. at 699-700. The procedures used must not pose a great risk of error, and they

must involve a determination of present dangerousness and risk of flight, and typically cannot be

based solely on prior acts. Foucha, 504 U.S. at 75-76; Addington v. Texas, 441 U.S. 418, 425,

432 (1979); United States v. Salerno, 481 U.S. 739, 754 (1987).

77. The imposition of a bond amount significantly higher than an amount reasonably

calculated to ensure that the noncitizen will attend future removal proceedings violates the Due

Process Clause because it lacks a reasonable relation to a legitimate governmental purpose.

Zadvydas v. Davis, 533 U.S. at 694; Shokeh v. Thompson, 369 F.3d 865, 871-72 (5th Cir. 2004)

(holding that immigration bond amount “must be reasonable in the circumstances” and that a

18

bond amount that prevents release because of inability to pay may in some circumstances be

unreasonable and pose Due Process problems), vacated on other grounds, 375 F.3d 351 (5th Cir.

2004). See also Stack v. Boyle, 342 U.S. 1, 5 (1951) (imposition of bond higher than needed to

secure criminally accused’s attendance at criminal trial violates Excessive Bail Clause of the

Eighth Amendment); United States v. Salerno, 481 U.S. 739, 747 (U.S. 1987) (noting in criminal

context that “when the Government has admitted that its only interest is in preventing flight, bail

must be set by a court at a sum designed to ensure that goal, and no more.”); Pugh v. Rainwater,

572 F.2d 1053, 1055-56 (5th Cir. 1978) (holding that criminal pretrial bail set at a figure higher

than an amount reasonably calculated to ensure person will attend trial is ‘excessive,’ and pretrial

confinement for inability to post money bail would constitute imposition of an excessive restraint

running afoul of due process requirements).

78. The imposition of a bond amount significantly higher than an amount reasonably

calculated to ensure that the noncitizen will attend future removal proceedings also violates the

Due Process Clause because it effectively imposes continued detention that has been found to be

no longer necessary.

79. As a noncitizen physically present in the United States, Petitioner is entitled to Due

Process Clause protections against arbitrary deprivations of liberty.

80. The Immigration Judge’s failure to reduce the bond amount of fifteen thousand dollars

($15,000) also violated Ms. Castillo’s due process right to constitutionally adequate procedures

to implement detention. The Immigration Judge failed to consider relevant evidence

demonstrating that Ms. Castillo does not presently pose a flight risk.

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81. As a direct and proximate cause of Respondents’ actions, Petitioner and her children were

and are continuing to be subject to unlawful and needless detention, in violation of the Due

Process Clause of the U.S. Constitution, and are entitled to release.

PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that the Court:

a. Assume jurisdiction over the case;

b. Issue an order directing Respondents to show cause why the writ should not be granted;

c. Grant a writ of habeas corpus directing Respondents to release Petitioner from custody;

d. Grant reasonable attorney fees, costs, and disbursements pursuant to the Equal Access to

Justice Act, 28 U.S.C. §2412, as appropriate;

e. Declare that Ms. Castillo’s continued detention pursuant to the Immigration Judge’s bond

decisions violate the Immigration and Nationality Act and regulations and the Due Process

Clause of the Fifth Amendment; and

f. Grant such further relief as the Court deems just and proper.

Respectfully submitted,

By: /s/ Ranjana Natarajan

Ranjana Natarajan

Texas State Bar: 24071013

THE UNIVERSITY OF TEXAS

SCHOOL OF LAW

Civil Rights Clinic

727 E. Dean Keeton Street

Austin, TX 78705

Tel: 512-232-7222

Fax: 512-232-0800

Email: rnatarajan@law.utexas.edu

20

On the petition:

Trisha Trigilio, Texas State Bar: 24075179

(application for admission forthcoming)

Daniel Hatoum, Law Student

Nafisa Bringe, Law Student

Jenae Steele, Law Student

Melissa J. Cuadrado

Texas State Bar: 24085856

ST. MARY’S CENTER FOR LEGAL AND

SOCIAL JUSTICE

Immigration and Human Rights Clinic

2507 N.W. 36th Street

San Antonio, Texas 78228

Tel. 210.431.5764

Fax. 210.431.5700

Email: mcuadrado@stmarytx.edu