Opinion
2:07-cv-1338 JWS (HCE).
June 23, 2008
ORDER AND OPINION [Re: Report and Recommendation at docket 15]
I. MATTER PRESENTED
Joel Jonathan Ram ("Ram") is a citizen of Fiji. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asserting that his continued detention under 8 U.S.C. § 1226(c) is unlawful. At docket 15, Magistrate Judge Héctor C. Estrada filed a report recommending that unless within sixty (60) days following this court's decision the respondents afford Ram a hearing before an immigration judge with the power to grant or deny him bail, Ram should be released. At docket 16, respondent Kane filed objections to the report.
II. STANDARD OF REVIEW
In a matter such as this, the district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." When reviewing a magistrate judge's report and recommendation in a habeas case, the district court reviews de novo conclusions of law and findings of fact to which parties object. The district court reviews uncontested findings of fact for clear error.
Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 906 (3d Cir. 1992).
IV. DISCUSSION
This court has reviewed the recommendations and objections pursuant to the standard of review recited above. There are no objections to any of the findings of fact recommended by the magistrate judge. This court adopts Magistrate Judge Estrada's recommended findings of fact.The ultimate legal issue is whether Ram's four year detention during removal proceedings pursuant to 8 U.S.C. § 1226(c) has lasted so long that he is entitled to relief on due process grounds. This court agrees with the magistrate judge's recommendation that on the remarkable facts of this case, petitioner is entitled to relief. This court therefore adopts his recommended conclusions of law, but writes further to amplify its view of the situation.
Petitioner's detention pursuant to Section 1226(c) began June 21, 2004. Doc. 15 at 3.
Demore v. Kim, not Tijani v. Willis, is the starting point in the analysis of Ram's detention, for as the magistrate judge noted Tijani cannot squarely apply, because removability was not conceded in Tijani. The problem for respondents is that Demore cannot be squarely applied either, because the Demore court's analysis obviously depended on the proposition that appeals would be of short duration, lasting perhaps as much as five months. Indeed, the Demore court simply did not contemplate an extended appeal to a circuit court, and so did not address whether an "extremely lengthy detention under section 1226(c) constitutes a permissible infringement of [an alien's] constitutionally protected right to liberty." Based on the extended period of detention here which was not contemplated in Demore, the magistrate judge looked to the decisions in Tijani and Zadvydas v. Davis for guidance and found that Ram was entitled to a bond hearing or release.
538 U.S. 510 (2003).
430 F.3d 1241 (9th Cir. 2005).
Doc. 15 at 9, n. 5.
Doc. 15 at 10.
533 U.S. 678 (2001).
In Denmore the Supreme Court held that "[d]etention during removal proceedings is a constitutionally permissible part of that process." As evidence of the strong incentive to detain criminal aliens pending removal proceedings, the Court discussed the fact that once released, more than twenty percent of deportable criminal aliens failed to appear for removal hearings. However, Demore does not address situations where detention has lasted longer than the normal "brief period necessary for [the alien's] removal proceedings." Rather, the Demore court focused on the differences between pre-removal order detention (with a definite end at the time of the removal order) and potentially indefinite post-removal order detention, which the Court in Zadvydas found to have a "presumption of a 6-month "reasonable" time limit."
Demore, 538 U.S. at 531.
Id. at 519.
Id. at 513.
Id. at 577 (Breyer, J ., concurring in part and dissenting in part) (citing 533 U.S. 678 (2001).
The administrative proceedings in this case lasted about eight months. The decision to appeal the result to the Ninth Circuit was the petitioner's, and the Court in Demore noted concerns that frivolous appeals could be filed to delay deportation. On the other hand, pursuit of non-frivolous appeals is a legitimate interest. Ram's appeal does not appear to this court to be one which is likely to have merit, but it is the appellate court which will decide that issue and the very duration of the appeal suggests that the appellate court does not consider it frivolous. The appeal to the Ninth Circuit in this case was filed on March 3, 2005, and is still pending more than three years and three months later. Ram has not contributed significantly to the appeal's extended duration. At most his requests for extensions of time account for three months. Similarly, the government has not substantially delayed the appeal.
Id. at 531.
Case # 05cv71190.
Of course, in general an alien who seeks judicial review cannot thereby establish a right to a bond hearing. Moreover, this court has declined to grant relief in a case in which an alien's detention extended to twenty months. Nevertheless, it is impossible to ignore the fact that Ram has been detained for four years. Establishing at precisely what point the duration of detention reaches a point at which a Tijani-inspired concern for the individual's liberty interest becomes paramount is a difficult question. Suffice it to say that here, with a total detention of four years, the line has been crossed. Accordingly, the court adopts the magistrate judge's recommended conclusions of law. Given the extraordinary duration of detention in this case, this court cannot square denial of relief with the decision by the Ninth Circuit in Tijani.
Passano v. Gonzalez, 2007 WL 1577908 (D. Ariz. 2007).