Ramirez v. Kane

Full title: Maria Victoria Gemma Ramirez, Petitioner, v. Katrina Kane, Respondent

Court: United States District Court, D. Arizona

Date published: Jul 16, 2008

No. CIV 08-075-PHX-MHM (GEE) (D. Ariz. Jul. 16, 2008)

Opinion

No. CIV 08-075-PHX-MHM (GEE).

July 16, 2008

REPORT AND RECOMMENDATION

GLENDA EDMONDS, Magistrate Judge

Pending before the court is a Petition for Writ of Habeas Corpus filed by Maria Victoria Gemma Ramirez on January 14, 2008, pursuant to Title 28, United States Code, Section 2241. The petitioner argues her current detention while in removal proceedings is contrary to law. The respondent filed an answer on April 21, 2008.

Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Edmonds for a Report and Recommendation.

The Magistrate Judge recommends that the District Court, after its independent review of the record, grant the petition. Ramirez' current detention is not authorized by law. See Tijani v. Willis, 430 F.3d 1241, 1242 (9^th Cir. 2005). Summary of the Case

Ramirez is a citizen of the Philippines. (Respondent's answer, p. 2.) She became a lawful permanent resident on March 15, 1999. Id.

On September 13, 2004, Ramirez was convicted of, among other things, forgery, possession of a forged driver's license, and grand theft of personal property identity in violation of California law. Id. She was sentenced to concurrent three year terms of incarceration. Id.

On July 31, 2006, the Department of Homeland Security (DHS) issued Ramirez a Notice to Appear charging her with removability because she was convicted of an aggravated felony such as commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered pursuant to INA §§ 237(a)(2)(A)(iii); 101(a)(43)(R). Id. In the alternative, the DHS alleged her aggravated felony conviction was for a theft offense or burglary offense. Id.

On September 11, 2006, the Immigration Judge (IJ) sustained the charge of removability based on Ramirez' forgery conviction and ordered her removed to the Philippines. Id., p. 3.

Ramirez filed an appeal with the Board of Immigration Appeals (BIA). Id. The BIA dismissed her appeal on December 21, 2006. Id., p. 3.

Ramirez filed a motion for stay and petition for review with the Ninth Circuit Court of Appeals. Id. The court granted Ramirez' motion for stay on June 12, 2007. Her appeal remains pending. Id.

On March 26, 2007, the DHS reviewed Ramirez' custody status and decided to continue her detention. Id.

On January 14, 2008, Ramirez filed the instant petition for writ of habeas corpus. She argues her continued detention is contrary to law citing, inter alia, Tijani v. Willis, 430 F.3d 1241 (9^th Cir. 2005). (Petition.) The respondent filed an answer on April 22, 2008.

Discussion

Ramirez is being held pursuant to 8 U.S.C. § 1226. This statute governs the initial apprehension and detention of aliens to determine whether they should be removed from the United States. Section 1226(c) requires the detention of certain classes of aliens, notably those aliens who have been convicted of certain crimes denominated aggravated felonies. See 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(R).

Section 1226 governs the alien's detention until the start of the "removal period," which is described in section 1231. This later statute governs the detention and eventual removal of the alien.

The "removal period" ordinarily begins on "[t]he date the order of removal becomes administratively final." 8 U.S.C. § 1231(a)(1)(B)(i). If the alien files an appeal and the court of appeals orders a stay of removal, the removal period begins on "the date of the court's final order." 8 U.S.C. § 1231(a)(1)(B)(ii).

In this case, Ramirez filed an appeal and the court of appeals ordered a stay of removal. Accordingly, the removal period has not yet begun and section 1226 still applies.

Ramirez argues her continued detention is not authorized by law citing Tijani v. Willis, 430 F.3d 1241 (9^th Cir. 2005). She is correct. The government is holding Ramirez pursuant to section 1226(c). This section, however, only authorizes detention during an "expedited" removal period. Tijani v. Willis, 430 F.3d 1241, 1242 (9^th Cir. 2005); See also Demore v. Kim, 538 U.S. 510, 529 (2003) ("The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days."). It does not authorize extended periods of detention. Tijani, 430 F.3d at 1242 (Detention for two years and eight months was not authorized by section 1226(c).).

Ramirez was apparently taken into custody on July 31, 2006. (Petition, p. 3.); (Respondent's answer, p. 8.) She has been detained for approximately 23 months. Her continued detention is not authorized by statute. See Tijani, 430 F.3d at 1242.

The government argues Tijani should be distinguished because Ramirez' detention to date is shorter than the detention at issue in that case. In Tijani, the petitioner was held for two years and eight months — 32 months. Ramirez has been detained for 23 months. (Petition, p. 3.); (Respondent's answer, p. 8.) Ramirez' detention is shorter, but it is still significantly longer than the average detention which was deemed reasonable in Kim. See Demore v. Kim, 538 U.S. 510, 529 (2003) ("[R]emoval proceedings are completed in an average time of 47 days and a median of 30 days.") Accordingly, the court concludes Ramirez' detention has not been "expeditious," and her continued detention is contrary to law.

The government further argues Ramirez should not benefit from the Tijani holding because her administrative proceedings were expeditiously concluded and her extended period of detention is the result of her own litigation. It maintains she would have been removed a long time ago if she had not contested her removal. That may be so, but the Tijani court did not qualify their holding based on who was responsible for the extended detention period. See Tijani, 430 F.3d at 1242.

The Tijani court found that in some cases, extended detention could violate the Constitution. Id. To avoid this possibility, the court held that the detention authorized by section 1226(c) extended only to an expedited period. Id. The court simply said,

To avoid the constitutional issue, we interpret the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens. Two years and eight months of process is not expeditious; and the foreseeable process in this court, where the government's brief in Tijani's appeal of the removal was only filed last month after two extensions of time, is a year or more.

Tijani, 430 F.3d at 1242. In this case, Ramirez has had 23 months of process, and her appeal before the Ninth Circuit is still pending. Her process has not been expeditious. Section 1226(c) no longer authorizes her detention.

Recommendation

The Magistrate Judge recommends that the District Court, after its independent review of the record, grant the Petition for Writ of Habeas Corpus filed on January 14, 2008, "unless the government within 60 days [of the District Court's order] provides a hearing to [the petitioner] before an Immigration Judge with the power to grant her bail unless the government establishes that she is a flight risk or will be a danger to the community." Tijani, 430 F.3d at 1242.

Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within 10 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003) (en banc), cert. denied, 540 U.S. 900 (2003).

The Clerk is directed to send a copy of this Report and Recommendation to the petitioner and the respondent.