Opinion
No. CV 07-1526-PHX-NVW (BPV).
May 13, 2008
REPORT AND RECOMMENDATION
On August 8, 2007, Esfandiar Nikbakhsh-Tali, ("Petitioner"), currently confined in the Eloy Detention Center in Eloy, Arizona, filed a Petition for Writ of Habeas Corpus by A Person in Federal Custody ("Petition"), pursuant to Title 28, U.S.C. § 2241.
On September 4, 2007, the District Court denied Petitioner's Motion for Emergency Adjudication, and, pursuant to the Rules of Practice of this Court, referred this matter to the undersigned Magistrate Judge for a Report and Recommendation.
On December 13 2007, the Magistrate Judge issued a Report and Recommendation, recommending that the District Court deny the Petition for Writ of Habeas Corpus. (Doc. No. 20.)
Petitioner filed an Objection, along with additional evidence on December 23, 2007. (Doc. No. 21.) The District Court ordered additional briefing and heard oral argument on the matter on February 14, 2008.
The District Court heard argument and ordered additional briefing, and took the objections to the Report and Recommendation under advisement. (Doc. No. 25.) On April 2, 2008, the District Court rejected the Report and Recommendation, referring the matter back to the Magistrate Judge to "consider whether, in light of this new evidence, Petitioner's removal will likely be effectuated in the reasonably foreseeable future." (Doc. No. 30.)
For the following reasons, the Magistrate Judge recommends that the District Court grant Petitioner's Petition for Writ of Habeas Corpus.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is a citizen and native of Iran. (Ex. 1.) On June 16, 1972, Petitioner's status was adjusted to that of a lawful permanent resident pursuant to Section 245 of the Immigration and National Act ("INA"), 8 U.S.C. § 1255. (Id.)
Exhibit numbers 1 through 15 in this Report and Recommendation are references to the exhibits attached to Respondent's "Response in Opposition to Petition for Writ of Habeas Corpus" previously filed with this Court under Esfandiar Nikbakhsh-Tali v. Alberto Gonzales, et al., CV 06-2121-PHX-NVW (BPV), (Doc. No. 19).
Exhibit numbers 16 through 19 in this Report and Recommendation are references to the exhibits attached to Respondent's "Response in Opposition to Petition for Writ of Habeas Corpus" (Doc. No. 17) from the immediate litigation, CV 07-1526-PHX-NVW (BPV)
All lettered exhibits make references to the exhibits found attached to the instant Petition.
On February 3, 2003, Petitioner was convicted in the California Superior Court, Santa Clara County, upon entry of a guilty plea, of one count of Inflicting Corporal Injury on Spouse/CoHabitant/Former Spouse or Fiancee, in violation of California Penal Code § 273.5(a). (Ex. 3.) On August 27, 2003, Petitioner was sentenced to four months imprisonment in the county jail. (Id.) On December 3, 2003, after violation of probation, Petitioner was sentenced to two years imprisonment. (Id.)
On August 19, 2004, Petitioner was referred to Immigration and Customs Enforcement ("ICE") by a referral from the California Department of Corrections ("CDC"). (Ex. 2). On or about October 4, 2004, the United States served Petitioner with a Notice to Appear in removal proceedings, charging Petitioner as subject to removal pursuant to section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), in that he, at any time after admission, was convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, and pursuant to section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), in that he, at any time after admission, was convicted of a crime of domestic violence. (Ex. 7.)
On October 4, 2004, Petitioner was served a Notice of Custody Determination, informing Petitioner that pursuant to section 236 of the INS, and 8 C.F.R. 236, the reviewing officer had determined that Petitioner was to be detained pending a final determination by the immigration judge ("IJ") in his case. (Ex. 8.) Despite several requests, Petitioner's detention status has not changed since this initial determination.
On October 20, 2004, Petitioner, represented by counsel, appeared in front of an IJ for a removal hearing. (Ex. 10, p. 1) Petitioner admitted the factual allegations and charges of removability, and the IJ found Petitioner subject to removal as charged. (Id, p. 2.) Petitioner declined to designate a country of removal, expressing a fear of return to Iran. (Id., p. 3.) Petitioner moved to apply for withholding, and for relief under the Convention Against Torture ("CAT"). (Id.) Additionally, Petitioner informed the IJ that his criminal conviction was being challenged as well, so that there was a possibility that he might be qualified for 240A relief if that were to occur. (Id.)
Petitioner's removal hearing, after a short continuance due to a medical emergency and subsequent substitution of counsel, was set for November 24, 2004, and was continued at that time due to the late submission of filings and inadequate time on the court's calendar to complete the hearing. (Id., p. 7, 9, 21.) The IJ entered his decision on January 20, 2005, ordering Petitioner removed to Iran, denying Petitioner's application for Asylum, denying Petitioner's application for withholding of removal, and denying Petitioner's application for deferral of removal under the Convention Against Torture. (Ex. 12.)
The Board of Immigration Appeals ("BIA") dismissed Petitioner's appeal on April 26, 2005. (Ex. 13.) Petitioner filed a Petition for Review and Request for Stay of Removal with the United States Court of Appeals for the Ninth Circuit on May 4, 2005. (Ex. 14.) On that same date, the Ninth Circuit granted Petitioner a temporary stay of removal, pending further briefing. See Nikbakhsh-Tali v. Gonzales, No. 05-72621.
Petitioner's appeal to the BIA is not included in the record submitted to this Court, but a review of the decision of the BIA indicates that he did not challenge his previous concession of removability.
On September 6, 2006, the Petitioner filed his first Petition for Writ of Habeas Corpus before this Court. See Nikbakhsh-Tali v. Long, et al., CV 06-2121-PHX-NVW, Doc. No. 1. (See also Ex. I)
On December 29, 2006, Petitioner filed a Motion to Dismiss his Stay of Removal with the Ninth Circuit Court of Appeals. (Ex. 16.) The Ninth Circuit construed Petitioner's "motion to dismiss stay of removal" as a "motion to withdraw the previously-filed motion for stay of removal pending review," and, so construed, granted the motion, and vacated the court's July 29, 2005 order, further directing the temporary stay of removal, and, if applicable, the voluntary departure no longer in effect. ( See Nikbakhsh-Tali v. Gonzales, No. 05-72621, Docket Entry January 17, 2007; Ex. J)
On May 10, 2007, this Court entered an order to show cause why Petitioner's federal habeas should not be dismissed, granting Petitioner a period of time to file a writing with this Court addressing the Ninth Circuit Court of Appeals order dated January 17, 2007, and the conclusion reached by this Court that Petitioner has entered the "removal period" under 8 U.S.C. § 1231, and, subsequently, has not exceeded the presumptively reasonable period of detention. (CV 06-2121-PHX-NVW, Doc. No. 20.)
On May 25, 2007, Petitioner filed a response to the order to show cause. (CV 06-2121-PHX-NVW, Doc. No. 21.)
On June 4, 2007, the Magistrate Judge recommended that the District Court deny Petitioner's Petition for Writ of Habeas Corpus, finding that Petitioner's detention during the removal period, had not exceeded the presumptively reasonable period, and Petitioner had not met his burden of showing that there is no significant likelihood of removal in the reasonably foreseeable future. (CV 06-2121-PHX-NVW, Doc. No. 24.)
No objections to the Report and Recommendation were filed and the District Court entered an order accepting the Report and Recommendation, and denying the Petition for Writ of Habeas Corpus. (CV 06-2121-PHX-NVW, Doc. No. 25.)
On March 1, 2007, Petitioner's travel application was submitted to the Embassy of Pakistan. (Ex. 17) Respondent advises that the reason the request was submitted to the Embassy of Pakistan is that Iran does not have an embassy in the United States, therefore, Iran travel documents are submitted through the Embassy of Pakistan. (Response, p. 3.)
On December 12, 2007, the Magistrate Judge issued a Report and Recommendation, finding that Petitioner had entered the "removal period," under 8 U.S.C. § 1231(a), on January 17, 2007, when the Ninth Circuit Court of Appeals lifted his stay of removal. (CV 07-1526-PHX-NVW, Doc. No. 20) The Magistrate Judge recommended denying the Petition, finding that, although Petitioner had been detained for a period of time longer than the six months the United States Supreme Court found presumptively reasonable in Zadvydas v. Davis, 533 U.S. 678 (2001), Petitioner had not met his burden of demonstrating good reason to believe that there was no significant likelihood of removal in the reasonably foreseeable future. (CV 07-1526-PHX-NVW, Doc. No. 20.)
II. DISCUSSION
1. Indefinite Detention
Petitioner is subject to an administratively final order of removal. See CV 07-1526-PHX-NVW, Doc. No. 20, 24, 25 (finding same); See also 8 U.S.C. § 1101(a)(47)(B) (defining final order of deportation). After completion of administrative removal proceedings, the detention and release of an alien who has been ordered removed are governed by 8 U.S.C. § 1231(a). Zadvydas v. Davis, 533 U.S. 678, 683 (2001) (referring to section 1231 as the "post-removal-period detention statute").
Petitioner is now in the "removal period," and has been since January 17, 2007. When a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory removal period. See 8 U.S.C. § 1231(a)(1)(A) (1996). Where, as here, removal is not accomplished within the 90-day removal period, the government may detain the alien past the removal period for a period reasonably necessary to accomplish the removal. Zadvydas, 533 U.S. at 682.
Thus, detention for more than 90 days pending removal is clearly authorized, however, it is not without Constitutional limitation. Id.
Interpreting 8 U.S.C. § 1231(a)(6), the United States Supreme Court concluded that six months is a "presumptively reasonable" period of detention pending removal. Zadvydas, 533 U.S. at 701. Extended detention beyond the removal period violates due process; after six months, the government's authority to continue the detention depends on whether there is a "significant likelihood of removal in the reasonably foreseeable future." Id.
After the 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. Zadvydas, 533 U.S. at 701. The burden then shifts to the government, which must respond with evidence sufficient to rebut Petitioner's showing. Id.
To benefit from the holding in Zadvydas, the alien must cooperate with the government's efforts to remove him. "[W]hen an alien refuses to cooperate fully and honestly with officials to secure travel documents from a foreign government, the alien cannot meet his or her burden to show there is no significant likelihood of removal in the reasonably foreseeable future." Lema v. I.N.S., 341 F.3d 853, 856 (9th Cir. 2003). Respondents, however, do not contend that Petitioner has not cooperated in obtaining travel documents to assist with his removal. (Doc. No. 26, at 3.)
In the instant case, Petitioner has been detained beyond the six-month period. He argues that there is no significant likelihood of removal in the reasonably foreseeable future because Petitioner is in possession of a fax, dated December 13, 2007, that states that the Islamic Republic of Iran "would not be able to issue a travel document for the above-mentioned person." (Doc. No. 21, at 1.)
The Respondents argued initially, in opposition, that, to the extent the document submitted by Petitioner is admissible, its weight is limited. (Doc. No. 23, at 2) Respondents further argued that this "cryptic sentence copy of a letter signed by one person for another . . . does not show that the Iranian government has declined to issue a travel document at all. The Iranian government has not stated that it rejects petitioner's citizenship, that it has rejected any of the identity documents or passports submitted by the government or that it, in fact will not issue a travel document." (Id.)
Detention and Deportation Officer Jaime C. Alfaro, in the Travel Document Unit with the Headquarter's Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, within the Department of Homeland Security in Washington, D.C., contacted Mr. Sajjadi, a Consular Officer in the Iranian Interest Section, on December 13, 2007, and requested an update on the status of the travel document request for Petitioner. (Doc. No. 23, Ex. 1, Declaration of Jaime C. Alfaro, ¶ 1, 7, 8.) Mr. Sajjadi agreed to research the case and call Mr. Alfaro back. (Id., at ¶ 8.) On January 14, 2008, Mr. Janahsoozan, an official of the Embassy of Pakistan, Interest Section for the Islamic Republic of Iran, called Mr. Alfaro, and informed him that Petitioner's travel document application was forwarded to Tehran, Iran, for review and verification by the Iranians. (Id., at ¶ 9.) Mr. Alfaro was informed by Mr. Janahsoozan that this phase of the application takes at least six months. (Id.) It is Mr. Alfaro's personal experience that the Iranian Interests Section normally takes from six to eight months to respond to a travel document request, but can take longer. (Id., at ¶ 10.)
Petitioner's complete application for the issuance of a travel document to effect Petitioner's removal was forwarded to the Embassy of Pakistan on March 2, 2007. (Doc. No. 23, Ex. 2, Declaration of Susan Lambert-Ray, at ¶ 8.)
Following oral argument on February 14, 2008, Respondents clarified that a record search revealed that the detention center in Eloy did not receive in the mail the letter from the Iranian Interests Section of the Pakistan Embassy dated December 13, 2007, the letter faxed to Petitioner's counsel. (Doc. No. 26, at 1 and Attachment 2, Declaration of Susan Lambert-Ray, ¶ 6.) Respondents did determine that the Pakistan Embassy did recall sending the letter. (Doc. No. 26, at 2.) The detention facility did receive a second letter on February 26, 2008, dated February 4, 2008, with a postmark of February 21, 2008. (See Doc. No. 26, at 2, and Attachment 2, letter dated 2/4/08.) The letter states that because of an inability to authenticate a birth certificate, a travel document will not be issued. (Id.)
Respondents concede that presently, both the December 13, 2007 letter, and the February 4, 2008 letter are in the format that appears to be the same as other final decisions received from the Iranian Interests Section. (See Doc. No. 26, Attachment 3, Declaration of Jaime C. Alfaro, ¶ 3.)
Respondents submit that, despite the apparent final denial letters, this Court should be persuaded by the detailed declarations from Susan Lambert-Ray and Jaime Alfaro regarding the government's extensive contact with the Iranian Interest Section of the Embassy of Pakistan regarding its progress in obtaining travel documents to remove Petitioner from the United States. Respondents further argue that, when determining the reasonableness of a time lapse after the six-month presumptively reasonable period, this Court should take into account that the government of the United States is dealing with a government with whom it does not have direct diplomatic relations and must go through a third party, and should also take into account the government's persistence in approaching the Iranian Interest Section at the Embassy of Pakistan to assist upon their action in forwarding these documents.
Respondents further argue that, following receipt of the February 4, 2008 letter, Mr. Jahansoonzan of the Iranian Interests Section initiated a phone call on February 26, 2008 to speak to Mr. Alfaro, and it was during this phone call initiated by the Iranian Interests Section that Mr. Jahansoozan reassured Mr. Alfaro that verification and review was continuing. (Doc. No. 26, Attachment 3, Updated Declaration of Jaime C. Alfaro, ¶¶ 1, 5) Thus, Respondents submit that, based upon these personal representations, which should carry more weight than the "cryptic" letters, this Court should not consider that a final decision has been made by the Iranian government on whether to issue travel documents in this case.
Mr. Alfaro received a return telephone call from Mr. Jahansoonzan on March 25, 2008. (Doc. No. 29, Attachment 1, Updated Declaration of Jaime C. Alfaro, ¶ 3.) Mr. Alfaro directly asked Mr. Jahansoozan why the February 4, 2008 letter was issued stating that a travel document would not be issued if verification was still pending. (Id., at ¶ 4.) Mr. Jahansoozan replied that it confused him, and that as far as he was concerned, the Section is still awaiting verification of the birth certificate and that no final decision about a travel document being issued has been made. (Id.) Mr. Alfaro also asked if Mr. Jahansoozan could provide him with an exact date that the original travel document request, original passport, and original birth certificate were submitted to Tehran, but Mr. Jahansoozan could not provide him with a date. (Id., at ¶ 5.) Mr. Jahansoozan could not explain why the verification was still ongoing and refused to give any timeline for completion. (Id., at ¶ 6.)
The Supreme Court, in Zadvydas, found that once removal is "no longer reasonably foreseeable, continued detention is no longer authorized by statute." Zadvydas, 533 U.S. at 699 (citations omitted). "In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute." Id. at 699-700.
The presumptively reasonable six month period has been exceeded, and Petitioner has met his burden of demonstrating good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. Two documents, although one with somewhat questionable pedigree, have been received in the form of what Respondents concede is considered a final decision denying travel documents. Furthermore, although the December 13, 2007 letter was not received by the detention facility, the Iranian Interest Section of the Pakistan Embassy has verified that it did in fact send the letter. The second letter was both sent and received in the course of regular diplomatic business, and, but for further communications between Mr. Jahansoozan and Mr. Alfaro, would be considered a final decision in and of itself.
Respondents present evidence in rebuttal, that these communications between Mr. Jahansoozan and Mr. Alfaro are sufficient to demonstrate that removal is imminent, and further submit that Petitioner has not provided any evidence of a permanent obstruction to his deportation.
As the Supreme Court has explained, however, "for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the `reasonably foreseeable future' would conversely have to shrink." Zadvydas, 522 U.S. at 701. As of completion of this Report and Recommendation, Petitioner has been in the removal period for approximately one year and four months, or nearly ten months beyond the period found presumptively reasonable in Zadvydas. No doubt, upon completion of objections to this Report and Recommendation, and consideration by the District Court, that period will increase by, at a minimum, nearly another month.
According to the affidavits submitted by Respondents, both Mr. Alfaro, and Mr. Jahansoozan appear to be in agreement that it typically requires six months, or as many as eight months, in some cases longer, for review and verification of travel documents in response to a travel document request. This is in conformity with the six months reasonably presumptive period prescribed in Zadvydas. Id. at 701. The Supreme Court recognized, however, that this presumption did not mean that "every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." The Supreme Court cautioned, however, that requiring continued detention as long as "good faith efforts to effectuate . . . deportation continue and [petitioner] failed to show that deportation will prove `impossible" . . . "would demand more than the Supreme Court's reading of the statute could bear." Id. at 702 (internal citations omitted).
In this case, it is not entirely clear when the travel documents were delivered to Iran. Mr. Alfaro's typical expectancy, however, is that the typical decision period is six to eight months from the period of delivery of documents to the Pakistan Embassy, which occurred on March 2, 2007. It has been over fourteen months, since the delivery of documents to the Iranian Interests Section of the Pakistan Embassy, and travel documents have not been issued.
There is, however, no confirmation that the application was forwarded to Tehran, Iran, until January 16, 2008. Only four months have lapsed since that date, but there is no way of knowing from the affidavits if it was submitted at any earlier time, from March 2, 2007, until January 16, 2008. Presumably the two letters that were sent denying travel documents were as a result of travel applications having previously been submitted to Iran, at least sometime prior to December 13, 2007. Mr. Jahansoozan states that they are typically forwarded to Tehran within two weeks of receipt. Thus, based on usual practices, they would have been received in Tehran by the end of March, 2007, and the receipt of the denial letter in December, 2007, conforms with the experience of Mr. Alfaro in receiving an official response in six to eight months from submission.
Although Mr. Alfaro is confident that a final decision has not yet been made, and travel documents will issue, this confidence is based solely on conversations with Mr. Jahansoozan, who admits that he is confused as to why a denial letter issued from the Iranian Interests Section, does not know when the original travel document request, original passport, and original birth certificate were submitted to Tehran, could not explain why the verification was still ongoing, and refused to give any timeline for completion. Mr. Alfaro does not provide any reason, such as prior dealings or experience, that he has placed such confidence in one with such an apparent complete lack of knowledge, nor has he explained why he knows that review is ongoing.
Petitioner's confinement in the removal period is nearing sixteen months, and, short of proving that his removal is "impossible," there is little more Petitioner could demonstrate to show that there is no significant likelihood of removal in the reasonably foreseeable future. In light of the two denial letters, and Mr. Jahansoozan's inability to even speculate as to when travel documents might be forthcoming, Respondent's have not come forth with evidence establishing that it is clear that there is a significant likelihood of removal, much less in the reasonably foreseeable future.
Accordingly, the Magistrate Judge recommends that the District Court enter an order granting Petitioner's Petition.
2. Bond Determination
Respondents argued, in their Response to Petitioner's Objection to Notice of Intent to Deny, that, although regulations do not provide for bonding of aliens subject to mandatory detention under 8 U.S.C. § 1231(A)(6), such as Petitioner, in the event that some consideration was made for release or on conditions or on bond, Petitioner would bear the burden of proving that he was not a flight risk or a danger to the community, pursuant to 8 C.F.R. § 241(d)(1). Respondents argued further, however, that immigration judges do not have jurisdiction to review bond determinations after a final order has been entered, nevertheless, such hearings have been held upon order of either the Ninth Circuit of Appeals or the District Court. Respondents request that, if this Court would find that Petitioner's detention violates his rights, counsel urges the Court to allow an immigration judge in the first instance to hold a bond hearing to determine Petitioner's right to release or set the amount of bond.
Similarly, Petitioner argues that the cases indicate an immigration judge can hold such a bond hearing. The cases Petitioner cites (Doc. No. 27, at 5), are all distinguished from this case, however, as they all involved petitioners who had not yet entered the final removal period, and were granted a bond hearing pursuant to Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), which this Court has previously established is not applicable to this case. Neither Respondents nor Petitioner cited to this Court any cases wherein a bond hearing was held following a determination, under Zadvydas, that removal was unlikely in the reasonably foreseeable future.
The Ninth Circuit has held that the government may require a detainee to post bond as a condition of being released pursuant to a determination under Zadvydas that repatriation is not likely to occur in the reasonably foreseeable future. See Doan v. INS, 311 F.3d 1160 (9th Cir. 2002). In Doan, the Ninth Circuit unambiguously held that the government may require a detainee to post bond as a condition of being released pursuant to a determination under Zadvydas that repatriation is not likely to occur in the reasonably foreseeable future. Doan, 311 F.3d at 1161 ("a bond is well within the kinds of conditions contemplated by the Supreme Court in Zadvydas, 533 U.S. at 6SS-69, 695-96 . . . where the Court observed that 8 C.F.R. § 241.5 (2001) establishes conditions of release"). The regulation at 8 C.F.R. § 241.5(b) (2003) provides that "[a]n officer authorized to issue an order of supervision may require the posting of bond in an amount determined by the officer to be sufficient to ensure compliance with the conditions of the order, including surrender for removal." 8 C.F.R. § 241.5(b) (2003); see also 8 C.F.R. § 241.13(h)(1) (making the conditions of 8 C.F.R. § 241.5 applicable to aliens released under sec. 241.13).
a. Public Safety
It is an altogether different matter, from requiring that bond be posted and an order of supervision be required, to requiring that Petitioner appear before an immigration judge and bear the burden of demonstrating entitlement to release.
Respondents assert that, pursuant to 8 C.F.R. § 241.4(d)(1), an alien with a final order of removal must demonstrate "his or her release will not pose danger to the community or to the safety of other persons or property . . ."
Once it has been determined that there is no significant likelihood that an alien will be removed in the reasonably foreseeable future, the regulation that applies to custody determinations is found at 8 C.F.R. § 241.13, which provides in relevant part that, if a finding of no significant likelihood of removal is found, the Service "shall promptly make arrangements for the release of the alien subject to appropriate conditions, as provided in paragraph (h) of this section.
Regulations provide that the Service may require that the alien submit to a medical or psychiatric examination prior to establishing appropriate conditions for release or determining whether to refer the alien for further proceedings under § 241.14 because of special circumstances justifying continued detention. The Service is not required to release an alien if the alien refuses to submit to a medical or psychiatric examination as ordered." 8 C.F.R. § 241.13(g)(1). Section 241.14(a)(2) grants jurisdiction to immigration judges and the Board to determine whether release of an alien would pose a special danger to the public, as provided in 8 C.F.R. § 241.14 paragraphs (f) through (k), but do not have jurisdiction with respect to aliens described in paragraphs (b), (c) or (d). Paragraphs (f) through (k) describe aliens determined to be specially dangerous; paragraphs (b), (c), and (d), describe aliens who have highly contagious diseases, risk a serious adverse foreign policy consequence upon release, or raise security or terrorism concerns.
Thus, under regulations, the only provision for a bond hearing before an immigration judge is when there has been a determination that an alien poses conditions of special danger to the public because of their proven history of violent criminal activity and mental illness. This condition, however, has been found invalid in at least two instances. In Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008), the Fifth Circuit rejected the government's reading of Zadvydas, and found the Supreme Court did not create an exception for detention of mentally ill aliens beyond the presumptive six month post-removal period. Id. at 483. It further held the regulation authorizing the continued detention of a removable alien having no significant likelihood of being removed in the reasonably foreseeable future, and who had been determined "specially dangerous" because of mental illness that would likely cause him to commit future acts of violence, was not a permissible interpretation of 28 U.S.C. § 1231(a)(6)). Id. at 485. In Harnandez-Carrera v. Carlson, ___ F Supp 2d. ___ ( 2008 WL 913375), the District Court for the District of Kansas found that the Supreme Court has unequivocally stated that its interpretation and reading of 8 U.S.C. § 1231(A)(6) in Zadvydas "applies without differential to all three categories of aliens that are its subject. Harnandez-Carrera, 2008 WL 913375 at 3. (quoting Clark v. Martinez, 543 U.S. 371, 378 (2005)); See also Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (Supreme Court's interpretation of § 1231(a)(6) does not authorize continued detention of alien suffering from harm-threatening mental illness for longer than the presumptive six-month post-removal period authorized in Zadvydas where the alien's removal from the United States is not reasonably foreseeable)
This Court finds the District Court's reasoning in Hernandez-Carrera persuasive:
In Zadvydas, the Supreme Court stated that "once the flight risk justification [for continued detention under 8 U.S.C. § 1231(a)(6) evaporates, the only special circumstance present is the alien's removable status itself, which bears no relation to a detainee's dangerousness." Zadvydas, 533 U.S. at 691-92. . . .
. . . Once the presumptively reasonable six month period for removal of such an alien has expired, further detention pursuant to 8 U.S.C. § 1231(a)(6) is improper and the alien must be released subject to conditions of supervision. See 8 U.S.C. § 1231(a)(3); 8 C.F.R. § 241.5. See also Tran, 515 F.3d at 485 (while sympathetic to the government's concern for public safety, the court has no power to authorize the petitioner's continued detention under § 1231(a)(6)).
Such conditions clearly can address public safety concerns. . . . Moreover, noncompliance with the conditions of release subjects an alien to criminal prosecution and penalties, including further detention. See 8 U.S.C. § 1253(b). See also Zadvydas, 533 U.S. at 695 ("[W]e nowhere deny the right of Congress . . . to subject [aliens] to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions").
After Zadvydas, Congress acted to further protect the public from the release of aliens who threaten national security. If further detention of aliens with mental illness or threat of violence is required to protect public safety, rather than the supervised release which is currently authorized, Congress has not yet acted to provide such additional protection.Hernandez-Carrera v. Carlson WL 913375, 4-5 (D.Kan., 2008)
It is the Magistrate Judge's recommendation that, should the District Judge find that Petitioner satisfies the conditions of Zadvydas, there is no authority establishing that the District Court can order a bond hearing be held to determine whether or not Petitioner poses a danger to the public. In fact, the Magistrate Judge finds Zadvydas suggests the opposite, i.e., the District Court must order Petitioner released. The District Court may order Respondents to release Petitioner under appropriate conditions of supervision, including the posting of bond or other reasonable conditions of supervised release, that, if violated, could result in further detention. See Doan, 311 F.3d 1160.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court GRANT Petitioner's Petition for Writ of Habeas Corpus (Doc. No. 1).
Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within ten days after being served with a copy thereof. Fed.R.Civ.P. 72(b). If objections are filed, the parties should use the following case number: CV 07-1526-PHX-NVW.
If objections are not timely filed, then the parties' right to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) ( en banc).