Opinion
CIV 07-01624 PHX JWS (MEA).
April 15, 2008
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN W. SEDWICK:
Mr. Shelvin Prasad ("Petitioner), who is currently detained at the Eloy Detention Center in Eloy, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on August 23, 2007, seeking his release from detention. Respondent filed a Response in Opposition to Petition for Writ of Habeas Corpus (Docket No. 8) on November 15, 2007. Petitioner filed a pro se reply to the response to the petition on December 17, 2007. See Docket No. 9.
I. Background
Petitioner is a native and citizen of Fiji. See Response in Opposition to Petition for Writ of Habeas Corpus ("Response"), Exh. 1. On July 18, 1998, Petitioner was admitted to the United States as a lawful permanent resident. Response, Exh. 1 Exh. 3.
On or about October 4, 2005, the Department of Homeland Security ("DHS") initiated removal proceedings against Petitioner by serving Petitioner with a Notice to Appear. Id., Exh. 2 Exh. 6. The Notice to Appear alleged that, on May 17, 2004, Petitioner was convicted by the State of California on one charge of receiving stolen property. Id., Exh. 2. The Notice to Appear alleged Petitioner was removable because he was an immigrant who had been convicted of an aggravated felony as that term is defined by federal immigration statutes, i.e., a state conviction for a theft or burglary offense for which the imposed term of imprisonment was at least one year. Id., Exh. 2. Petitioner was taken into the custody of the DHS on October 4, 2005. See Answer at 2.
The charge of removability based on Petitioner's 2004 theft conviction was withdrawn on November 15, 2005. Id., Exh. 2 Exh. 3. On that same day, DHS alleged Petitioner was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), because he had been convicted of violating a state law or regulation related to a controlled substance other than a single offense involving the personal use of marijuana. Id., Exh. 3. The DHS filed a Notice of Additional Charges alleging that, in May of 2004, Petitioner was convicted by the State of California on one count of felony possession of methamphetamine and one misdemeanor count of being under the influence of methamphetamine. Id., Exh. 5.
Petitioner, through counsel requested a hearing regarding his continued detention without bond on or about October 26, 2005.Id., Exh. 7. Petitioner also submitted a second request for a bond hearing on November 23, 2005. Id., Exh. 7. On December 2, 2005, an Immigration Judge noted the "request for custody hearing was withdrawn." Id., Exh. 8.
Petitioner appeared at a hearing before an Immigration Judge on November 15, 2005. Id., Exh. 8. Petitioner's case was continued because his counsel did not appear. Id., Exh. 8. On or about December 7, 2005, Petitioner admitted the allegations in the amended Notice to Appear regarding his citizenship and denied the allegations of his 2004 drug convictions. Id., Exh. 9. On or about January 24, 2006, at a hearing before an Immigration Judge, Petitioner admitted the factual allegations in the amended Notice to Appear regarding his 2004 drug convictions. Id., Exh. 9. At that time, Petitioner conceded his removability and the Immigration Judge ("IJ") sustained the charges in the amended Notice to Appear. Id., Exh. 9.
Respondent's Exhibit 5 indicates that, initially, Petitioner pled guilty to both charges and that the imposition of his sentence was suspended and he was placed on three years of informal probation and given "credit for time served: 80 actual, 40 conduct, totaling 120 days." Petitioner alleges in his reply to the answer that the 2004 drug convictions were vacated nunc pro tunc after the initiation of his removal proceedings, and that he entered a plea of nolo contendere to a charge of possession of a controlled substance for which conviction he received a suspended sentence and unsupervised probation. See Docket No. 9.
Petitioner then filed applications for asylum and withholding of removal. Id., Exh. 9. In a decision issued May 2, 2006, the IJ denied Petitioner's applications for asylum and withholding of removal, and ordered Petitioner be removed from the United States to Fiji. Id., Exh. 10.
Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Id., Exh. 11 Exh. 12. The BIA dismissed the appeal on September 8, 2006. Id., Exh. 13. Petitioner filed a petition for review in the Ninth Circuit Court of Appeals on or about November 1, 2006. Id., Exh. 16. Petitioner also filed a motion in the Ninth Circuit to stay his removal, which was granted on February 22, 2007. Id., Exh. 17 Ninth Circuit Court of Appeals Docket No. 06-75173.
On October 4, 2006, the BIA denied Petitioner's motion to remand based on the state court's vacature of his convictions nunc pro tunc. See Answer, Exh. 15.
Petitioner filed another appeal in the Ninth Circuit Court of Appeals on January 29, 2007 (Ninth Circuit Docket No. 07-70372), which matter was consolidated with his initial appeal on April 9, 2007. The pleading before the Ninth Circuit, in which matter Petitioner is represented by retained counsel, was completed October 24, 2007. See Ninth Circuit Docket No. 06-75173.
On May 1, 2007, DHS notified Petitioner that his custody status would be reviewed on May 16, 2007. Id., Exh. 20. On or about June 12, 2007, DHS issued a decision to continue Petitioner's detention. Id., Exh. 21. The decision states: "your criminal history shows that you have difficulty complying with terms of supervised release and you may pose a flight risk." Id., Exh. 21. The decision further states: "a travel document is available for your return to Fiji pending the outcome of your current appeal . . ." Id., Exh. 21.
Petitioner filed his federal habeas action on August 23, 2007. In his federal habeas action, Petitioner asserts he has been detained beyond the six-month constitutionally-permissible period pending his removal from the United States, citing the United States Supreme Court's opinion in Zadvydas v. Davis. Petitioner has been detained since October 4, 2005, i.e., as of April of 2008, for a period of approximately two years and six months.
Respondent avers that "[t]he total time of petitioner's detention, during proceedings, was eleven months . . ." Docket No. 8 at 5. Citing the date Petitioner's motion to stay his removal was filed, Respondent avers Petitioner's order of removal was stayed by the Ninth Circuit Court of Appeals on November 2, 2006. Accordingly, she asserts, Petitioner's order of removal has not become final and Petitioner's case does not fall under the rubric of Zadvydas. Respondent further contends there is a reasonable likelihood of Petitioner's removal in the foreseeable future and, therefore, that his constitutional rights are not violated by his continued detention. Docket No. 8 at 8. Respondent also notes Petitioner is a criminal alien, although she allows he is not a known national security risk. Id.
The affidavit regarding the likelihood that Petitioner is removable in the reasonably foreseeable states Petitioner was ordered removable because he committed an aggravated felony and avers the government of Fiji would not issue a travel document for Petitioner until the conclusion of his appeal. Answer, Exh. 21. Petitioner's crimes were not classified as aggravated felonies and the charge that he was removable based on an aggravated felony was withdrawn. The statement in the affidavit that Fiji had not issued a travel document contradicts the statement by the detention hearing officer that a travel document had been issued.
II. Jurisdiction
This Court has jurisdiction over the amended section 2241 petition only, arguably, to consider the merits of Petitioner's claim his continued detention violates his constitutional rights.See Arreola-Arreola v. Ashcroft, 383 F.3d 956, 964-65 (9th Cir. 2004); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006). The District Court does not have jurisdiction to consider whether the IJ properly concluded Petitioner's crimes constituted a legitimate basis for removability and whether relief from removal is barred and, accordingly, the propriety of the order of removal currently under appeal to the Ninth Circuit. See Real ID Act, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005); Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir. 2006).
The plain language of the REAL ID Act grants jurisdiction to appellate courts to review questions of law presented in petitions for review of final orders of removal, even those pertaining to otherwise discretionary determinations. See Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006); Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005). The Ninth Circuit Court of Appeals has concluded the District Courts have jurisdiction to determine if a habeas petitioner's continued discretionary detention violates federal statutes or the detainee's constitutional rights. See Nadarajah v. Gonzalez, 443 F.3d 1069, 1075-76 (9th Cir. 2006). The undersigned notes that other federal courts have concluded they may review the constitutionality of the detention but only to a limited extent the breadth of the discretionary authority conferred on the Department of Homeland Security to detain an alien during the pendency of their removal proceedings. After a thorough discussion of the relevant federal court opinions, the Western District of Texas concluded:
The Court therefore finds that it has jurisdiction to consider a constitutional challenge to section 1226(a) and the extent of the Attorney General's authority under section 1226(a). However, under section 1226(e) and the Fifth Circuit's decision in Loa-Herrera, as well as section 1252(a)(2)(B)(ii), the Court finds that it does not have jurisdiction to review the decision to deny release on bond itself or the Attorney General's discretionary judgment regarding the application of 1226(a), "including the manner in which that discretionary judgment is exercised, and whether the procedural apparatus supplied satisfies regulatory, statutory, and constitutional constraints." Loa-Herrera, 231 F.3d at 991.Kambo v. Poppell, 2007 WL 3051601, at *10 (W.D. Tex.), comparing Sierra v. INS, 258 F.3d 1213, 1217 (10th Cir. 2001) (holding that § 1252(a)(2)(B)(ii) did not bar challenge to the constitutionality of the procedures used in alien's parole proceeding because it is never within the Attorney General's discretion to act unconstitutionally). Nonetheless, the undersigned notes that at least one federal court has concluded that the District Courts do not, as a matter of federal statutes, i.e., 8 U.S.C. 1252, have the power to review Respondents' discretionary power to detain Petitioner during the pendency of his removal proceedings as a flight risk. See Sai Zhao Jiang v. Chertoff, 2008 WL 80582, at *8 (D. Minn. 2008).
Certainly, the Court has no jurisdiction to review DHS's decision to retain custody of Kambo without bond on the merits. Under section 1226(a), the Attorney General has broad discretion to detain an alien. Section 1226(a) provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." The use of the term "may" indicates discretion. There are no limitations on or standards for exercising that discretion in the statute. Further, "[e]xcept as provided in subsection (c)," which is not applicable here, "pending such decision [on whether the alien is to be removed], the Attorney General may continue to detain the arrested alien." 8 U.S.C. § 1226(a). Again, there are no express limitations on or standards for the Attorney General's exercise of discretion to continue to detain the alien. Further, under section 1226(e), no court may review the Attorney General's "discretionary judgment regarding the application of this section" or "set aside any action or decision by the Attorney General under this section regarding the detention . . . of any alien or . . . denial of bond." 8 U.S.C. § 1226(e).
III. Analysis
This Court may issue a writ of habeas corpus to a Department of Homeland Security detainee who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (2006 Supp. 2007). Federal law provides for the detention of removable aliens in two separate circumstances. Section 236(c) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1226, governs the detention of aliens who are not under an administratively final order of removal. Section 231 of the INA, codified at 8 U.S.C. § 1231, governs the detention of aliens whose order of removal is administratively final.
Federal law provides: "Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the `removal period')." 8 U.S.C. § 1231(a)(1)(A) (2005 Supp. 2007). InZadvydas v. Davis, the United States Supreme Court held section 1231 could not be read to authorize the potentially indefinite detention of a removable alien. The court concluded due process concerns were implicated by the detention of an alien, pending their removal from the United States, for more than six months after their order of removal is final. See 533 U.S. 678, 121 S. Ct. 2491 (2001).
The Ninth Circuit Court of Appeals has interpreted the "six month" limit to be a total of six months from the date the order of removal becomes final, rather than six months from the expiration of the removal period. See Khotesouvan v. Morones, 386 F.3d 1298, 1300 (9th Cir. 2004); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 n. 5 (9th Cir. 2001); accord Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002).
However, the statutory ninety day limit for effectuating removal is not applicable until the "removal period" begins. See,e.g., Kothandaraghipathy v. Department of Homeland Sec., 396 F. Supp. 2d 1104, 1107 (D. Ariz. 2005). Ordinarily the "removal period" begins on "[t]he date the order of removal becomes administratively final." 8 U.S.C. § 1231(a)(1)(B)(i) (2005 Supp. 2007). However, if the alien files an appeal and the Circuit Court of Appeals orders a stay of removal, the removal period begins on "the date of the court's final order." Id. § 1231(a)(1)(B)(ii). See also Tijani v. Willis, 430 F.3d 1241, 1248 n. 7 (9th Cir. 2005); Balogun v. INS, 9 F.3d 347, 350-51 (5th Cir. 1993); Kothandaraghipathy, 396 F. Supp. 2d at 1107.
The BIA dismissed Petitioner's appeal of his order of removal and the denial of relief from removability on September 8, 2006. The order of removal became "administratively final" on that date. However, approximately two months later Petitioner filed a petition for review of the order of removal in the Ninth Circuit Court of Appeals. Petitioner simultaneously filed a motion to stay his removal, which was granted by the Ninth Circuit on February 22, 2007. Pursuant to the governing law, even though Petitioner's order of removal might once have been "administratively final," upon the BIA's dismissal of Petitioner's appeal, the "removal period" specified in section 1231 has not yet begun because the Court of Appeals has not issued a "final order" with regard to Petitioner's order of removal. In other words, any "finality" bestowed by the BIA's decision was eradicated when Petitioner sought review of the decision by the Ninth Circuit.
A stay of removal is not automatic, but is granted only if the petitioner shows either the probability of success on the merits and the possibility of irreparable injury, or that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor. See Andreiu v. Ashcroft, 253 F.3d 477, 484-484 (9th Cir. 2001) (en banc).
Petitioner asserts the order of removal became "final" when the BIA issued its decision dismissing his appeal. Petitioner contends that the Ninth Circuit's granting of his motion to stay only stayed the execution of the order of removal, and not the onset of the removal period. Docket No. 9 at 5. As stated supra, although Petitioner is technically correct in stating that the order of removal was administratively final when the BIA issued its decision, as a function of law the "removal period" regarding his order of removal will not begin until the Ninth Circuit issues its decision. See Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1104 n. 12 (9th Cir. 2001) ("[i]f the removal order is stayed pending judicial review, the ninety day period begins running after the reviewing court's final order."); Bah v. Cangemi, 489 F. Supp. 2d 905, 917-18 (D. Minn. 2007).
Because the "removal period" does not commence until after the appellate court has concluded its review of a challenged order of removal, prior to that time the alien's detention is pursuant to section 1236 rather than section 1231. See Martinez-Jaramillo v. Thompson, 120 Fed. App. 714, 717 (9th Cir. 2005) (holding that where a stay of removal is granted pending judicial review, INA section 236 provides the statutory basis for detention); Martinez v. Gonzales, 504 F. Supp. 2d 887, 893 (C.D. Cal. 2007);Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1224 (W.D. Wash. 2004) ("Because Petitioner's removal order has been stayed by the Ninth Circuit pending its review of the BIA decision, the `removal period' has not yet commenced, and Petitioner therefore is detained pursuant to INA § 236.").
To avoid confusion as to how, or whether, to classify the interval between the issuance of a BIA decision and the date an appellate court stays removal as part of the "removal period," some federal courts have concluded that the ninety-day removal period is "tolled" during the time the alien's removal is stayed by a Circuit Court of Appeal, as compared to reasoning that the removal period does not begin until the Circuit Court of Appeal has finished its review. See, e.g., Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n. 4 (11th Cir. 2002); Aghahowa v. Attorney General, 2008 WL 189566, at *3 (E.D. Pa. 2008); Riley v. Greene, 149 F. Supp. 2d 1256, 1261 (D. Colo. 2001) ("At least two federal circuit courts and several district courts have found that if an alien contributes to the delay of his departure he is not allowed the benefit of a release pending his actual removal, and the six-month period to effect an alien's departure is tolled."). The undersigned notes the precedential effect of Akinwale is undermined because the statement in Akinwale was in dicta in a footnote. See Martinez v. Gonzales, 504 F. Supp. 2d 887, 898 (C.D. Cal. 2007). See also Bah v. Cangemi, 489 F. Supp. 2d 905, 918 (D. Minn. 2007).
Accordingly, the issue before the Court is whether Petitioner's continued detention violates section 1226 or his constitutional rights. If his continued detention is not authorized by section 1226, he is entitled to a writ of habeas corpus. Alternatively, if his detention violates his constitutional right to substantive or procedural due process, the writ may issue.
A. Petitioner's detention is not authorized by section 1226
Petitioner has now been detained for a period of two years and six months and his detention is not required by section 1226(c) because the basis of his removability is not one stated in that section. One year of that detention occurred while Petitioner's removal proceedings were before the agency and approximately one year and six months of that detention have occurred while Petitioner's action before the Ninth Circuit has been pending.
The appropriate analysis to utilize when determining whether his continued detention violates the authority conferred by federal statutes is not completely clear. The published and unpublished federal Circuit Courts of Appeal opinions which address whether an alien's detention during the pendency of their removal proceedings violates federal statutes or their constitutional rights generally arise in the context the mandatory detention provisions of section 1226(c), which provide for the mandatory detention of certain classes of aliens, rather than section 1226(a), governing the discretionary detention of all other aliens, including Petitioner. See, e.g., Demore v. Kim 538 U.S. 510, 527-29, 123 S. Ct. 1708, 1719-21 (2003) (concluding the alien's detention was "reasonably related" to the goal of preventing flight, both because the alien was unquestionably removable, and thus presented a high flight risk, and because the time period for the average removal was brief); Tijani, 430 F.3d at 1249-50; Hoang Mingh Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003) (concluding an alien's continued detention for one and a half years during pre-removal proceedings violated their right to substantive due process because the detention was unreasonable); Martinez, 504 F. Supp. 2d at 895; Bah, 489 F. Supp. 2d at 915.
Some issues implicated by Petitioner's detention were presented to the Ninth Circuit Court of Appeals in Prieto Romero v. Gonzales, Ninth Circuit Docket No. 07-35458, a case arising in the Western District of Washington, which was consolidated with other cases.
The Sixth Circuit affirmed the award of habeas relief because there was no strong special justification for detaining the petitioner, and because the period of time required to conclude the petitioner's removal proceedings was unreasonable, and because actual removal was not reasonably foreseeable because there was no repatriation agreement with the petitioner's home country.
by construing the pre-removal detention statute to include an implicit requirement that removal proceedings be concluded within a reasonable time, we avoid the need to mandate the procedural protections that would be required to detain deportable aliens indefinitely. Although we affirm the grant of habeas corpus and the district court's finding that incarceration for 18 months pending removal proceedings is unreasonable, we do not require the United States to hold bond hearings for every criminal alien detained under § 236. Ly's case is not the norm, in that he is not actually removable. In the majority of cases, where an order of removal is promptly entered and removal is effected within the time allotted under Zadvydas, bond hearings are not required. As Zadvydas made clear, the liberty interest of deportable criminal aliens is adequately served by the reasonableness limitation on the period of incarcerationHoang Mingh Ly v. Hansen, 351 F.3d 263, 270 (6th Cir. 2003) (emphasis added).
In a published decision, the Ninth Circuit Court of Appeals held an alien who had been confined for five years, who had "not been charged with any crime, and who ha[d] won relief at every administrative level, [wa]s unreasonable under the standards set forth by the Supreme Court." Nadarajah, 443 F.3d at 1081. The Ninth Circuit Court of Appeals concluded, in somewhat dissimilar circumstances, that when an alien had been detained pursuant to section 1226 for an unreasonable period of time, and their removal was unforeseeable, the government's continued detention of the alien violated federal law and they were entitled to a writ of habeas corpus. See id., 443 F.3d at 1082 (holding the DHS had improperly denied parole on bond and ordering the petitioner's release, pursuant to their authority under the Federal Rules of Appellate Procedure, inter alia, because the IJ had granted relief from removal and so removal was not foreseeable).
In other cases judges of the District of Arizona have concluded detention for a time period of two years was not unreasonable.See Mboussi-Ona v. Crawford, 2007 WL 3026946, at *3 (NVW BPV) (rejecting the Magistrate Judge's recommendation that relief be granted pursuant to Tijani and concluding the alien's section 1226(c) detention was not indefinite and did not violate his constitutional rights because he would either be granted relief from removal and released or removed to Cameroon);Ibeagwa v. Crawford, 2007 WL 2702006, at *2-*3 n. 2 (SRB BPV) (noting that, but for the petitioner's decision to file a judicial appeal, he would no longer be in detention); Passano v. Gonzalez, 2007 WL 1577908, at *1 *3 (JWS DKD) (declining to apply Tijani in a case where detention was not mandatory and alien had been detained for two years, because the majority of the alien's detention occurred during his judicial appeal, wherein the administrative process was concluded in six months, the alien conceded removability, and there was no indication that the country of nationality would not accept the petitioner). But see Lawson v. Gerlinski, 332 F. Supp. 2d 735, 745 (M.D. Pa. 2004).
B. Petitioner's constitutional rights were not violated
Other federal courts which have considered similar cases have granted habeas relief when the petitioner could establish their removal was not likely in the reasonably foreseeable future, holding that potentially indefinite detention violates the petitioner's right to substantive due process.
Petitioner has a Fifth Amendment liberty interest which is violated by detention which is potentially indefinite.
The remaining question is whether petitioner has "provid[ed] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," making his continued detention "reasonably necessary to bring about" his removal. If so, the government must respond with evidence sufficient to rebut that showing. . . .Martinez, 504 F. Supp. 2d at 899. See also Hoang Minh Ly, 351 F.3d at 271-72 (affirming the grant of habeas relief because there was no reasonable likelihood of removal in the reasonably foreseeable future even if removal proceedings concluded with affirmation of the order of removal).
A finding that Petitioner's removal is not "reasonably foreseeable," either because he is likely to win his appeal or because there is an institutional barrier to his ultimate removal, would negate the contention that his continued detention was reasonably necessary to ensure his removal. The undersigned cannot conclude Petitioner's removal is not reasonably foreseeable. There is no reason to believe the Ninth Circuit will not affirm the order of removal and denial of relief from removability in the foreseeable future. Although Petitioner contests his eligibility for relief from removal, both the IJ and the BIA found him removable and ineligible for relief from removal, distinguishing Petitioner's situation from the petition in Nadarajah. Additionally, there is no reason to believe that Fiji will refuse to repatriate Petitioner, as compared to the petitioner in Hoang Minh Ly wherein there was no repatriation agreement in place with the designated country of removal, Vietnam.
IT IS THEREFORE RECOMMENDED that Mr. Prasad's Petition for Writ of Habeas Corpus be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.