Ahmad v. Whitaker
| Decision Date | 04 December 2018 |
| Docket Number | CASE NO. C18-287-JLR-BAT |
| Parties | MIR LATIF AHMAD, Petitioner, v. MATTHEW WHITAKER, et al. Respondents. |
| Court | U.S. District Court — Western District of Washington |
This case presents yet another example of U.S. Immigration and Customs Enforcement ("ICE") causing unnecessary pain to a family already facing heartbreak. Mir Latif Ahmad is subject to a final order of removal but had been living peacefully in the community with his U.S. citizen wife and children on an order of supervision ("OSUP") since 2005. In December 2017, ICE verbally granted his request to take a family trip to visit his elderly parents in Oregon after Christmas, but required him to check in prior to his departure on December 26, 2017. That morning, he and his wife reported to the ICE office expecting to get formal approval for their family trip. Instead, ICE detained him without any opportunity to say goodbye to his children orelderly parents. Later that day, he learned that ICE had obtained a travel document and scheduled his removal to Afghanistan for January 9, 2018.
Mr. Ahmad filed this 28 U.S.C. § 2241 immigration habeas action pro se to challenge the revocation of his OSUP and his continued detention at the Northwest Detention Center. He seeks release on reasonable conditions so that he may make an orderly departure from the United States or, in the alternative, a bond hearing. The Government has moved to dismiss. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends (1) with respect to Mr. Ahmad's challenge to the revocation of his OSUP and his request for release, the Government's motion to dismiss should be GRANTED and Mr. Ahmad's habeas petition should be DENIED, and (2) with respect to Mr. Ahmad's request for a bond hearing, his habeas petition should be GRANTED and he should be afforded a bond hearing within seven days of the Honorable James L. Robart's order on this Report and Recommendation, if he has not been removed by that time.
Mr. Ahmad, a citizen of Afghanistan, became a lawful permanent residence of the United States in the 1980s. Dkts. 9-1, 9-2, 9-3. On October 1, 2001, ICE's predecessor, the Immigration and Naturalization Service ("INS") took him into custody and issued a Notice to Appear, which charged him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (), based on a 1991 state-court conviction for second degree child molestation. Dkts. 9-4, 9-5, 9-6, 9-7. On October 31, 2001, an immigration judge ("IJ") released Mr. Ahmad on bond. Dkt. 9-8.
On May 15, 2002, an IJ held a hearing and ordered Mr. Ahmad removed to Afghanistan.Dkts. 9-9, 9-10. Mr. Ahmad's appeal to the Board of Immigration Appeals ("BIA") was unsuccessful. Dkts. 9-11, 9-12.
In September 2002, Mr. Ahmad married his wife, Mariah Ahmad Lynge.2 Dkt. 2 at ¶ 4. In December 2002, Ms. Lynge filed an Application for Alien Relative (Form I-130) for Mr. Ahmad based on their marriage. Id. at ¶ 4. On December 16, 2004, Mr. Ahmad and Ms. Lynge attended an I-130 application interview with U.S. Citizenship and Immigration Services ("USCIS"). Id. at ¶ 5. During the interview, Mr. Ahmad was arrested and taken into immigration custody without explanation. Id. at 5.
INS detained Mr. Ahmad until August 30, 2005, while it attempted to execute his removal order, but it ultimately released him on an OSUP because it was unable to complete his "deportation or removal during the period prescribed by law." Dkts. 9-13, 12-3; see also Dkt. 10 at ¶¶ 12, 15; Dkt. 12 at ¶ 5. The OSUP required Mr. Ahmad to comply with a number of conditions, including that he "appear in person at the time and place specified, upon each and every request of the Service, for identification and for deportation or removal." Dkt. 9-13 at 2; Dkt. 12-3 at 2. Mr. Ahmad acknowledged that "failure to comply with the terms of this order may subject [him] to a fine, detention, or prosecution." Dkt. 9-13 at 2; Dkt. 12-3 at 2. After his release, Mr. Ahmad complied with all of the conditions of his OSUP and ICE's requests for assistance in procuring a travel document. See Dkts. 9-13 at 6, 9-15, 9-16; Dkt. 10 at ¶¶ 22-24; Dkt. 1-1 at ¶¶ 11-12, 14.
In 2016, Mr. Ahmad and Ms. Lynge inquired about the status of her December 2, 2002 Form I-130 petition, which had not yet been resolved. Dkt. 2 at ¶ 9.
On August 4, 2017, ICE renewed its efforts to remove Mr. Ahmad by presenting a travel document request for him to the Embassy of Afghanistan ("the Embassy"). Dkt. 10 at ¶ 25; see also Dkt. 9-15. On August 10, 2017, Ms. Lynge's Form I-130 application was approved. Dkt. 2 at ¶ 9. Mr. Ahmad and Ms. Lynge informed ICE that the application had been approved. Id.
On October 25, 2017, at ICE's request, an official from the Embassy interviewed Mr. Ahmad. Dkt. 10 at ¶¶ 27-28. On November 13, 2017, the Embassy issued a temporary travel document for Mr. Ahmad that expired on February 12, 2018. Dkt. 10 at ¶ 29; Dkt. 10-1. On November 21, 2017, during a routine check-in, Mr. Ahmad and Ms. Lynge showed ICE a draft of a motion to reopen Mr. Ahmad's removal proceedings that they were preparing to file, which was based on the newly granted I-130 application and the hardships that removal would place on their family. Dkt. 2 at ¶ 11. ICE responded by fitting Mr. Ahmad with a GPS ankle monitor. Dkt. 2 at ¶ 11; Dkt. 10 at ¶ 30; Dkt. 10-3 at 3. ICE did not inform him at this time that they had obtained a travel document. Dkt. 1-1 at ¶ 15. Instead, Mr. Ahmad and Ms. Lynge were told the ankle monitor was for "accountability purposes." Dkt. 2 at ¶ 11.
On November 27, 2017, Mr. Ahmad filed a motion to reopen his removal proceedings with the BIA, which ICE opposed. Dkt. 2 at ¶ 12; Dkt. 10 at ¶¶ 31-32; Dkt. 10-3 at 3.
On December 12, 2017, ICE scheduled Mr. Ahmad for a chartered departure to Afghanistan, which was set to take place on January 9, 2018. Dkt. 10 at ¶ 33; Dkt. 10-3 at 3.
On December 18, 2017, Mr. Ahmad and Ms. Lynge requested permission to travel with their family to visit his elderly parents in Oregon for several days after Christmas. Dkt. 2 at ¶ 13; Dkt. 2-5. ICE verbally approved the request but required Mr. Ahmad to personally check-in at the GPS monitoring service's office prior to leaving on December 26, 2017. Dkt. 2 at ¶ 13; Dkt. 2-5. On the morning of December 26, 2017, Mr. Ahmad and Ms. Lynge went to the monitoringservice's office where they were told to check in at the ICE office. Dkt. 2 at ¶ 14. When they checked in with ICE, Mr. Ahmad was detained. Id. He was not given a chance to say goodbye to his children or elderly parents. Id. Ms. Lynge asked why he was being detained and whether ICE had a travel document. Id. The ICE officer told her that he was subject to a final order of removal and ICE did not need a travel document remove him. Id.
Later that day, ICE served Mr. Ahmad with a Notice of Revocation of Release. Dkt. 10-2. The Notice informed Mr. Ahmad that there were changed circumstances in his case and ICE had determined that there was a significant likelihood of removal in the reasonably foreseeable future. Id. Specifically, ICE had obtained a travel document and was scheduling his removal. Id. The Notice also informed Mr. Ahmad that pursuant to 8 C.F.R. § 241.13, he was to remain in ICE custody but would "promptly be afforded an informal interview at which you will be given an opportunity to respond to the reasons for the revocation." Id. The Notice went on, "If you are not released after the informal interview, you will receive notification of a new review, which will occur within approximately three months of the date of this notice." Id. Mr. Ahmad and Ms. Lynge attest that he never received an informal interview. Dkt. 1-1 at ¶ 19; Dkt. 2 at ¶ 15.
On December 29, 2017, the BIA stayed Mr. Ahmad's removal pending adjudication of his motion to reopen. Dkt. 10 at ¶ 35. Mr. Ahmad's travel document expired while the stay was in effect. Id. at ¶ 36; Dkt. 10-1.
On February 23, 2018, Mr. Ahmad initiated the instant habeas action pro se to challenge ICE's revocation of his OSUP and his continued detention. Dkt. 1. The Court ordered the Government to file a return memorandum and status report by March 29, 2018. Dkt. 5.
On March 27, 2018, ICE conducted a 90-day file custody review of Mr. Ahmad's detention status and denied release. Dkt. 10 at ¶ 39; Dkt. 14-1. Also on March 27, 2018, theBIA denied Mr. Ahmad's motion to reopen and the stay of removal expired.3 Dkt. 12 at ¶ 3; Dkts. 12-1, 12-2.
On March 29, 2018, the Government timely filed a return memorandum and motion to dismiss, arguing that Mr. Ahmad's detention is lawful, that the Court does not have jurisdiction to consider his challenge to the revocation of his release, and that even if the Court has jurisdiction, ICE properly revoked his release. Dkt. 8.
On April 19, 2018, Mr. Ahmad filed in the Ninth Circuit a pro se petition for review of the BIA's denial of his motion to reopen and a motion to stay. Dkt. 14-2. The Ninth Circuit issued a temporary stay of removal pending briefing on and resolution of the motion to stay. Id. Mr. Ahmad, in his response to the Government's motion to dismiss, asked the Court to continue the instant matter pending the Ninth Circuit's ruling on his motion to stay. Dkt. 13. The Government did not oppose this request. Dkt. 14. On April 24, 2018, the Court granted Mr. Ahmad's motion for a continuance. Dkt. 15.
On October 10, 2018, the Government informed the Court that the Ninth Circuit had denied Mr. Ahmad's motion to stay on September 19, 2018, and submitted supplemental evidence regarding the likelihood of Mr. Ahmad's removal. Dkts. 17, 17-1, 18. Specifically, on October 2, 2018, the Embassy requested a copy of the Ninth Circuit's decision denying Mr. Ahmad's motion to stay so that it could process...
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