UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION [REDACTED] [REDACTED] [REDACTED], Petitioner, v. KIRSTJEN NIELSEN, Secretary of the United States Department of Homeland Security; JEFFERSON B. SESSIONS III, Civil Case No. United States Attorney General; THOMAS HOMAN, Director of United States Immigration and Customs Enforcement; PATRICK CONTRERAS, Field Office Director for Detention and Removal, U.S. Immigration and Customs Enforcement, Department of Homeland Security; ROBERT LACY, JR., Warden, CoreCivic Houston Processing Center; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; Respondents. PETITIONER S MOTION FOR ORDER TO SHOW CAUSE IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND INCORPORATED MEMORANDUM OF LAW NOW COMES Petitioner, [Redacted] [Redacted] [Redacted] ( Mr. [Redacted]), by and through his undersigned PRO BONO counsel. Pursuant to 28 U.S.C. 2241 and 2243, Mr. [Redacted] respectfully requests that the Court issue an order to Respondents Kirstjen Nielsen, 1

Jefferson B. Sessions III, Thomas Homan, Patrick Contreras, Robert Lacy, Jr., the United States Department of Homeland Security ( DHS ), and the United States Immigration and Customs Enforcement ( ICE ), requiring them to show cause why the Mr. [Redacted] s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2241; 28 U.S.C. 1331; Article I, 9, cl. 2 of the United States Constitution; and the Administrative Procedure Act, 5 U.S.C. 702 should not be granted and why Respondents should not be ordered to release Mr. [Redacted] from detention following an individu[redacted]zed bond redetermination hearing. (An incorporated memorandum of law is included.) In support of the present Motion, Mr. [Redacted] states: 1. In the Petition for Writ of Habeas Corpus filed, April 16, 2018, Mr. [Redacted] challenges his continued detention. Respondents detention of Mr. [Redacted] violates his due process rights guaranteed by the Fifth Amendment to the U.S. Constitution because his detention is prolonged and unreasonable. See Habeas Petition at 37-42. In addition, Respondents detention of Mr. [Redacted] violates 8 U.S.C. 1226(c) because Mr. [Redacted] is not subject to mandatory detention under 8 U.S.C. 1226(c) as he is not deportable for conviction under 8 U.S.C. 1101(a)(48)(A). See Habeas Petition at 43-45. The Immigration Judge terminated Mr. [Redacted] s removal proceedings with prejudice finding that Mr. [Redacted] was not convicted for purposes of federal immigration law. See Habeas Petition at 2, 29, 45. 2. The federal habeas corpus statute provides that [a] court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it 2

appears from the application that the application or person detained is not entitled thereto. 28 U.S.C. 2243. 3. Section 2243 further provides that the writ or order to show cause shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed. 4. Section 2243 further provides that the court shall hold a hearing on the writ or order to show cause not more than five days after the return unless for good cause additional time is allowed. 5. Section 2243 further provides that the court shall summarily hear and determine the fact, and dispose of the matter as law and justice require. 6. Pursuant to 28 U.S.C. 2243, and in light of Mr. [Redacted] s continued unlawful detention without bond, Mr. [Redacted] respectfully requests that the Court immediately issue an Order to Show Cause why the writ for habeas corpus should not issue. Petitioner requests the Court hold a hearing on an Order to Show Cause and require the attendance of Petitioner within five (5) calendar days from the date of the filing of this Motion. Good Faith Conference of Counsel under Local Rules 7. On April 16, 2018, Mr. [Redacted], by and through his undersigned counsel, reached out to Respondents for their position on this Motion. Mr. Daniel Hu, Civil Chief, United States Attorney s office, Southern District, informed the undersigned attorney that Respondents will await service and papers before deciding what they will do. 8. For the reasons stated in the following memorandum of law, Mr. [Redacted] respectfully requests that this Honorable Court GRANT the writ of habeas corpus. MEMORANDUM OF LAW 3

The Petitioner, [Redacted] [Redacted] ( Mr. [Redacted] ), by and through his undersigned counsel, hereby submits this memorandum of law in support of his petition for writ of habeas corpus seeking an order from this Honorable Court to issue a writ of habeas corpus ordering Respondents to release Mr. [Redacted] on his own recognizance, parole, or reasonable conditions of supervision; to award Mr. [Redacted] reasonable costs and attorney s fees; and to grant Mr. [Redacted] any other relief which this Honorable Court deems just and proper. Mr. [Redacted] is the husband of a U.S. lawful permanent resident, and they have four U.S. children together. See Exh. F, p. 6-7. 1 Prior to his detention, Mr. [Redacted] was working, paying taxes, and providing for his family. Id. His continued detention deprives his family of his companionship and income. Id. To avoid redundancy, Mr. [Redacted] hereby incorporates the factual background and the procedural history of his case as set forth in the Petition for Writ of Habeas Corpus (hereinafter Habeas Petition ) pursuant to 28 U.S.C. 2241 and makes reference to the supporting exhibits attached to the Habeas Petition. ARGUMENT I. Mr. [Redacted] is not subject to mandatory detention under 8 U.S.C. 1226(c) because he does not meet the requirements for mandatory detention under the plain meaning of the statute. [T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain the sole function of the courts is to enforce it according to its terms. Caminetti v. United States, 242 U.S. 470, 485 (1917). Section 1226(c) provides that the Attorney General shall take into custody any [Redacted]en who (A) is inadmissible for having committed any offense covered in section 1 All Exhibits referenced in this Motion are attached to the Habeas Petition filed April 16, 2018. 4

1182(a)(2) or (B) who is deportable by reason of having committed any offense covered in section 1227(a)(2)(B). See U.S.C. 1226(c). The Immigration Judge terminated Mr. [Redacted] s removal proceedings with prejudice finding that Mr. [Redacted] was not convicted under Federal immigration law, specifically, 8 U.S.C. 1101(a)(48)(A). See Exh. A attached to Habeas Petition (Order of Termination). Furthermore, Mr. [Redacted] s case is currently pending back in front of the Board of Immigration ( BIA ), so the BIA has not ultimately decided whether Mr. [Redacted] has a conviction or not. Mr. [Redacted] also has not conceded that he has a conviction nor has he conceded that he is deportable. Because Mr. [Redacted] is not actually deportable for having committed any offense listed in 1226(c), under the plain meaning of the statute, Mr. [Redacted] should not be held to be subject to 1226(c) mandatory detention. In Demore, the criminal [Redacted]en conceded that he was deportable, for the limited period of his removal proceedings, and the Court found that the criminal [Redacted]en chose not to attend a hearing in which he would have been entitled to raise any nonfrivolous argument to demonstrate that he was not properly in mandatory detention. Demore v. Kim, 538 U.S. 510, 514 (2003). Because the criminal [Redacted]en conceded his deportability and did not attend the hearing, he was properly detained subject to 1226(c). Id. at 531. The Court in Demore left the door open to whether mandatory detention is constitutionally permissible for criminal [Redacted]ens who want to assert colorable challenges to their removal. See Demore v. Kim, 538 U.S. 510 (2003); Darlene C. Goring, Freedom from Detention: The Constitution[Redacted]ty of Mandatory Detention for Criminal [Redacted]ens Seeking to Challenge Grounds for Removal, 69 Ark. L. Rev. 911 (2017). 5

Contrasting Demore, here, Mr. [Redacted] did not concede that he has a conviction and did not concede that he is deportable in that he filed bond motions at every available opportunity to do so. Mr. [Redacted] first filed for bond at his June 29, 2017, and was granted bond. Subsequently after being detained again after the BIA s decision, he filed for bond at his April 2, 2018, bond hearing but was denied bond. Because [Redacted] did not concede his deportability, Demore does not apply, so Mr. [Redacted] is not subject to 1226(c) mandatory detention. In Oyelude v. Chertoff, the district court found that Oyelude was subject to mandatory detention under 1226(c) because under Demore, detention during removal proceedings is constitutional. Oyelude v. Chertoff, 125 F. App'x. 543, 545-47 (5th Cir. 2005). However, the Fifth Circuit noted that the district court left out a significant sentence where the detainee had conceded that he was deportable. Id. at 546. The Fifth Circuit found that Oyelude has not conceded that he is a criminal [Redacted]en, so Demore does not bar a potential challenge to section 1226 detention. Id. The Fifth Circuit found that the district court s finding that Oyelude was being detained as a criminal [Redacted]en under 1226(c) was clearly erroneous. Id. at 547. Similarly, here, Mr. [Redacted] has not conceded that he is a criminal [Redacted]en nor that he has a conviction under Federal immigration law. Because Mr. [Redacted] is not found to be inadmissible or deportable for having committed any offense listed in 1226(c) and has not conceded that he is a criminal [Redacted]en nor that he has a conviction, this Court may find that Mr. [Redacted] is not subject to mandatory detention under 1226(c). II. Even if Mr. [Redacted] is subject to 8 U.S.C. 1226(c) mandatory detention, his continued detention is plainly unconstitutional because it violates Fifth Amendment Due Process. 6

The Supreme Court, in Jennings, left the door open for [Redacted]ens in pre-final order of removal detention to bring Constitutional claims. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In Jennings, Rodriguez and some of the class he represented were detained subject to 1226 while the government sought to remove him and members of the class. Jennings, 138 S. Ct. at 833. Justices Thomas and Gorsuch in their concurrence in Jennings discuss the Suspension Clause from Art. I, 9, cl. 2 ( The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it ) would have applied to Rodriguez and the class from Jennings had they filed habeas petitions. Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (J. Thomas, J. Gorsuch concurring). Rodriguez and the class sought only declaratory and injunctive relief but not habeas relief. Id. at 859. In effect, Justices Gorsuch and Thomas stated that the appropriate course of action of the class was through a habeas petition, which if properly filed and argue clearly leaves the door open for relief in cases such as these through the Great Writ of Habeas Corpus. See id. at 858-59. Here, like Rodriguez in Jennings, Mr. [Redacted] is detained purportedly subject to 1226 while the government seeks to remove him. However, along with this motion for order to show cause and memorandum of law, Mr. [Redacted] has filed a habeas petition, so Mr. [Redacted] has met the Jennings decision s concerns in applying for the correct form of relief and appropriate course of action where an [Redacted]en is being detained subject to 1226 and where there is not currently any final order of removal. Thus, Mr. [Redacted] may bring his Constitutional claim that his continued detention violates the Due Process Clause of the Fifth Amendment. Additionally, it should be mentioned that according to Christine Truong, Esq., Petitioner s attorney before the Immigration Court, at Mr. [Redacted] s April 2, 2018 bond 7

hearing the Immigration Judge stated that the issue of whether Mr. [Redacted] s prolonged detention is unreasonable or unconstitutional should be for the Federal Court as the immigration court does not have jurisdiction. See Exh. G. A. Even if Mr. [Redacted] is subject to 8 U.S.C. 1226(c) s mandatory detention, Mr. [Redacted] s continued detention violates his due process rights. The Due Process clause applies to persons in the United States, whether their presence here is lawful, unlawful, temporary, or permanent. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (holding that an [Redacted]en who is a lawful permanent resident of the United States and remains physically present there is a person within the protection of the Fifth Amendment). Procedural due process constrains governmental decisions that deprive individuals of property or liberty interests within the meaning of the Due Process Clause of the Fifth Amendment. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976). Mr. [Redacted] has a liberty interest in his freedom from physical confinement, and his liberty is being infringed upon by his unlawful detention. See Zadvydas, 533 U.S. at 690 ( freedom from imprisonment from government custody, detention, or other forms of physical restraint lies at the heart of the liberty [the due process] clause protects ). B. Even if Mr. [Redacted] is subject to 8 U.S.C. 1226(c) s mandatory detention provision, Mr. [Redacted] s continued detention is unreasonable and unjustified pursuant to Demore v. Kim. Congress may require that persons subject to 1226(c) detention be detained for the brief period necessary for their removal proceedings. Demore v. Kim, 538 U.S. 510, 513 (2003). Section1226(c) mandatory detention has a definite termination point and lasts, in many cases, for less than the 90 days as the Court considered presumptively v[redacted]d in Zadvydas. Id. at 8

529. According to Supreme Court in Demore, Section1226(c) detention should last roughly a month and a half in the vast majority of cases and five months where the [Redacted]en appeals. Id. at 530. 2 A lawful permanent resident [Redacted]en subject to 1226(c) detention could be entitled to an individu[redacted]zed determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified. Demore, 538 U.S. at 532 (Kennedy, J., concurring). Unreasonable delay by the INS in pursuing and completing deportation proceedings could require an inquiry of whether detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons. Id. at 532-33. Mr. [Redacted] was detained on or about July 19, 2016, until June 29, 2017, and then released on bond, and then detained again on or about September 12, 2017, until now, which is almost 18 months total and counting. Eighteen (18) months is longer than the brief period necessary for removal proceedings that the Supreme Court had in mind in Demore and Zadvydas. Furthermore, almost 18 months of detainment is unreasonable and unjustified, so Mr. [Redacted] should be entitled to an individu[redacted]zed determination as to his risk of flight and dangerousness. Eighteen (18) months and counting is unreasonable delay in Mr. [Redacted] s deportation proceedings, which should require an inquiry into whether his detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons. Because Mr. [Redacted] s 18 months detention is unreasonable and 2 Due to the well-known immigration court backlogs there is no question that processing times have increased since Demore v. Kim was decided in 2003. However, that fact does not justify the lengthy detention in the present case as it has turned into punitive detention. 9

unjustified, Mr. [Redacted] is entitled to release or an individu[redacted]zed bond hearing at the very least. 3 III. Additionally, because Mr. [Redacted] does not have a conviction under 8 U.S.C. 1101(a)(48)(A), he is not subject to mandatory detention under 8 USC 1226(c). 8 U.S.C. 1101(a)(48)(A), states: [t]he term conviction means, with respect to an [Redacted]en, a formal judgment of guilt of the [Redacted]en entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the [Redacted]en guilty or the [Redacted]en has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the [Redacted]en s liberty to be imposed. Mr. [Redacted] s pretrial intervention agreement does not constitute a conviction under 8 U.S.C. 1101(a)(48)(A) because: (1) under pre-trial intervention, an adjudication of guilt is not withheld, (2) pre-trial intervention is not included nor intended to be included in the statute s definition of conviction, (3) Mr. [Redacted] is entitled to procedural safeguards that protect him from the consequences of his admission in the Stipulation of Evidence, and (4) there was no judge-ordered punishment imposed on Mr. [Redacted]. A. Mr. [Redacted] s pre-trial intervention does not constitute a conviction under the statute because an adjudication of guilt has not been withheld. In his Notice of Appear (NTA), DHS ignored the necessary condition of whether an adjudication of guilt has been withheld. DHS asserts that Mr. [Redacted] met the definition of conviction under the statute because he admitted sufficient facts to warrant a finding of guilt in 3 In the alternative, Petitioner should be eligible to be placed into an alternative to detention, such as the Intensive Supervision Appearance Program (ISAP), be provided with an ankle bracelet, or given other safeguards to ensure future appearance. 10

the Written Stipulation of Evidence. However, DHS cannot look to the sufficient facts part without first considering whether adjudication of guilt has been withheld. In Mr. [Redacted] s case, no adjudication of guilt has been withheld because a pretrial intervention is NOT a withholding of an adjudication of guilt. According to the Fifth Circuit, there is absolutely no adjudicative element present in the pretrial diversion context. See United States v. Hicks, 693 F.2d 32, 34 (5th Cir. 1982). Importantly, pretrial diversion has no determination of guilt. See Hicks, 693 F.2d at 35; see also Taylor v. Gregg, 36 F.3d 453 (5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). If a defendant violates the pretrial intervention agreement, that would require the parties to go to an adjudication to determine guilt or innocence, further reinforcing the fact that pretrial intervention does not withhold an adjudication of guilt. Because pretrial intervention has no adjudicative element and does not speak to the defendant s guilt, pretrial intervention does not constitute a withholding of an adjudication of guilt. B. Mr. [Redacted] s pre-trial intervention does not constitute a conviction under the statute because pre-trial interventions are not included in the statute, nor intended to be in the statute. Under the canon of statutory construction, ejusdem generis ( of the same kind, class, or nature ), when a list of two or more specific descriptors is followed by more general descriptors, then the otherwise wide meaning of the general descriptor must be restricted to the same class, if any, of the specific words that precedes them. See CSX Transp., Inc. v. Alabama Dept. of Revenue, 131 S. Ct. 1101, 179 L. Ed. 2d 37 (2011); U.S. v. Kaluza, 780 F.3d 647 (5th Cir. 2015); U.S. v. Mackay, 757 F.3d 195 (5th Cir. 2014). 8 U.S.C. 1101(a)(48)(A)(i) provides the following list of descriptors: 11

(1) a judge has found the [Redacted]en guilty; (2) the jury has found the [Redacted]en guilty; (3) the [Redacted]en has entered a plea of guilty; (4) the [Redacted]en has entered a plea of nolo contendere; or (5) the [Redacted]en has admitted sufficient facts to warrant a finding of guilt. The first four descriptors all have one thing in common a formal plea or judgment of guilt is entered by the court. The first four descriptors are then followed by a more general descriptor, i.e. (5) regarding admission that the [Redacted]en has admitted sufficient facts to warrant a finding of guilt. Under ejusdem generis, the otherwise wide meaning of proposition (5) must be restricted to the same class. The fifth descriptor, that the [Redacted]en has admitted sufficient facts to warrant a finding of guilt, must pertain to a formal admission made in court and recognized by the court as such. Here, there was no indication that the criminal court recognized the pretrial intervention agreement as a formal admission sufficient to support guilt. Because pretrial intervention is not a formal admission entered by the court, Mr. [Redacted] s pretrial intervention cannot be deemed as sufficient to warrant a finding of guilt. Under another canon of statutory construction, expressio unius est exclusio alterius ( the express mention of one thing excludes all others ), items not on the list are impliedly assumed not to be covered by the statute. Under 8 U.S.C. 1101(a)(48)(A)(i), the list includes formal pleas like pleas of guilty or of nolo contendere, for example, which automatically indicates that deferred adjudications are to be included under section 101(a)(48)(A)(i) because deferred adjudication requires a plea of guilty of guilty or nolo contendere, as well as a judicial finding that the evidence substantiates the defendant s guilt, which would be covered by the admission of sufficient facts element. Section 101(a)(48)(A)(i) has nothing in its list explicitly or indirectly about pretrial interventions. Because pretrial interventions agreements are not on the list, under expressio unuis est exclusio alterius, pretrial interventions are impliedly assumed not to be 12

covered by section 101(a)(48)(A)(i). Therefore, Mr. [Redacted] s pretrial intervention does NOT admit sufficient facts to warrant a finding of guilt. C. Mr. [Redacted] s pre-trial intervention does not constitute a conviction under the statute because he is entitled to procedural safeguards that protect him from the consequences of his alleged admission in the Stipulation of Evidence. The Board s precedent in Matter of K, provides for procedural safeguards for admissions to determine inadmissibility, and persons already in the United States such as Lawful Permanent Residents such as Mr. [Redacted] should not receive fewer safeguards than those who are subject to inadmissibility at the border or in adjustment proceedings. Matter of K, 7 I&N Dec. 594 (BIA 1957). In Matter of K, the BIA adopted a 3-part test for the acceptance of an admission: (1) the admitted conduct must constitute the essential elements of the crime; (2) the applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and (3) the admission must be voluntary. Id. at 598. The applicant must also admit all facts constituting the crime. Matter of E-N-, 7 I&N Dec. 153 (1956). See also 22 C.F.R. 40.21(a)(1); Matter of G, 1 I&N Dec. 225 (BIA 1942) (the admission must be voluntary). Because those in removability proceedings should have greater procedural safeguards than those in inadmissibility proceedings, Mr. [Redacted] should, at minimum, have the procedural safeguards for those in inadmissibility proceedings provided in Matter of K. Here, Mr. [Redacted] did not admit sufficient facts to warrant a finding of guilt because there were no procedural safeguards such as those in Matter of K. In Mr. [Redacted] s pretrial intervention agreement he was not provided with a definition and the essential elements of the offense prior to his admission, nor was he advised that his pretrial intervention agreement would be used by DHS as evidence of a conviction for immigration purposes. 13

Because Mr. [Redacted], someone in removal proceedings, was denied the safeguards provided to someone in inadmissibility proceedings, which ordinarily have fewer safeguards than in removal proceedings, Mr. [Redacted] s admissions should be protected by the safeguards from Matter of K. Furthermore, the Fifth Amendment requires that removal proceedings conform to the traditional standards of fairness encompassed in due process; and accordingly, statements made by an [Redacted]en used to support [removal] must be voluntarily made. Cuevas-Ortega v. INS, 588 F.2d 1274, 1277 (9 th Cir. 1979) (citation omitted). The BIA has held that evidence obtained by coercion or other activity which violates the due process clause of the Fifth Amendment may be excluded. See Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980) (citations omitted); Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980). The Board in Matter of K found that safeguards are to be provided to insure that the [Redacted]en would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime involving moral turpitude. Because Mr. [Redacted] was denied the Matter of K procedural safeguards and not alerted about the immigration consequences of his admission in the Stipulation of Evidence, he was unwittingly entrapped into admitting the commission of a crime that Matter of K, hoped to prevent. Therefore, Mr. [Redacted] did not admit sufficient facts and should be protected by the Matter of K procedural safeguards. D. Mr. [Redacted] s pre-trial intervention is not a judge-ordered punishment, penalty, or restraint on the [Redacted]en s liberty as defined by 8 U.S.C. 1101(a)(48)(A)(ii). The Fifth Circuit has stated that the purpose of a pretrial diversion program is to avoid punishments in the vein of the traditional criminal justice system. See U.S. v. Hicks, 693 F.2d 32, 34 (5th Cir. 1982). The pretrial diversion program seeks to channel certain offenders out of the 14

traditional criminal justice system, substituting for trial and punishment the supervision by a probation office or community agency. Id. This language indicates that the federal courts have viewed pretrial diversions not as forms of punishment in the traditional sense, and that they should not be treated as such for purposes of the INA. Any costs arising from the pretrial diversion program give effect to the intended purpose of pretrial diversions, which is to avoid convicting and crimin[redacted]zing offenders who may easily be rehabilitated through alternative means. 1. Because Mr. [Redacted] s pretrial diversion agreement is a contract between defendant and prosecutor, its provisions do not constitute a judge-ordered punishment, penalty, or restraint on his liberty. The Fifth Circuit has stated that pretrial diversion agreements are contracts. Hicks, 693 F.2d at 33. In addition, within the state of Texas, courts have equated both plea bargains and pretrial diversion agreements to contracts. See Ex parte Williams, 637 S.W.2d 943, 948 (Tex. Crim. App. 1982); In re D.R.R., 322 S.W.3d 771, 773 (Tex. Ct. App. 2010). In pretrial diversion agreements, the prosecutor agrees to drop charges upon the successful completion of the diversion program by the accused. See In re D.R.R., 322 S.W.3d 771, 773 (Tex. Ct. App. 2010). Because the analysis of pretrial diversion agreements is performed in contractual terms, it is logical that the provisions of the pretrial diversion agreements, including any costs, orders or fees, are matters of contract. Relief for breach of contract by either party is addressed in contractual terms. If either party fails to keep their side of the agreement, the proper relief is either specific enforcement or withdrawal of the agreement. In Re D.R.R., 322 S.W.3d at 733. Because the purpose of a pretrial diversion is to have supervision instead of punishment, Mr. [Redacted] s pretrial diversion is not a judge-ordered punishment, penalty, or restraint on his 15

liberty. Despite having court authorization, the parties to the contract are solely the prosecutor and the defendant, as it is they who determine and agree upon the terms of the contract. In the present case, there is a difference between authorization and order. In Gates v. Nw. Ins. Co., 881 F.2d 215, 218 (5th Cir. 1989), the Fifth Circuit discussed the term order and held that the definition of order is not misleading and is an authoritative communication by which the person addressed is directed to do something, and sufficiently conveys the imperative nature of a communication that would constitute an order. Id. at 218 (citing Webster s Third New International Dictionary 1588 (1981)). A judge may order not mandatory but permissive supervision fees, which are not in the nature of a punishment but rather as reimbursement for court costs or reimbursement for community supervision. See Tex. Code Crim. Proc. Art. 102.012, discussed, infra. Because pretrial diversion provides supervision instead of punishment, it constitutes a contract between prosecutor and defendant, and is authorized by a judge but not ordered, pretrial diversion is not a judge-ordered punishment, penalty, or restrain on liberty. Accordingly, Mr. [Redacted] s pretrial diversion does not constitute a conviction. Because Mr. [Redacted] does not have a conviction under 8 U.S.C. 1101(a)(48)(A), he is not subject to mandatory detention under 1226(c). WHEREFORE, Petitioner respectfully requests that the Court issue an Order to Show Cause and schedule a hearing within the next five (5) days. A proposed draft Order is attached. Respectfully submitted, this 16 th day of April 2018. /s/ Geoffrey A. Hoffman GEOFFREY A. HOFFMAN Director University of Houston Law Center Immigration Clinic S.D. Texas Federal Bar No.: 1045452 16

Florida Bar No.: 0059972 Attorney in Charge for Petitioner 4604 Calhoun Rd., Ste. TUII, Rm 56 Houston, TX 77204-6060 Phone: 713-743-2094 Fax: 713-743-2195 Email: ghoffman@central.uh.edu /s/ Rosemary Vega ROSEMARY VEGA Clinical Supervising Attorney University of Houston Law Center Immigration Clinic /s/ Anthony Foster ANTHONY FOSTER Student Attorney University of Houston Law Center Immigration Clinic /s/ Anne Stieg ANNE STIEG Student Attorney University of Houston Law Center Immigration Clinic Attorneys for Petitioner PRO BONO 17

CERTIFICATE OF SERVICE I, GEOFFREY A. HOFFMAN, ESQ., hereby certify that on APRIL 16, 2018, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified via transmission of Notices of Electronic Filing generated by the CM/ECF system. /s/ Geoffrey A. Hoffman GEOFFREY A. HOFFMAN PRO BONO Attorney for Petitioner 18