Bryan v. Ice Field Office Dir.
| Decision Date | 14 June 2021 |
| Docket Number | 2:21-cv-00154-BHS-TLF |
| Parties | LEROY ALFONSO BRYAN, Petitioner, v. ICE FIELD OFFICE DIRECTOR, et al., Respondent. |
| Court | U.S. District Court — Western District of Washington |
REPORT AND RECOMMENDATION
NOTED FOR JULY 2, 2021
Petitioner who is currently detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in Tacoma Washington, brings this 28 U.S.C. § 2241 habeas action pro se. Petitioner has filed a form petition, and he seeks to obtain release from detention or a bond hearing. Dkt. 5 at 1-7. Petitioner also appears to challenge the merits of his immigration matter and his conditions of confinement in light of the ongoing COVID-19 pandemic; petitioner requests preliminary injunctive relief releasing him from detention and staying his removal. Dkt. 5 at 9-19.
Currently before the Court is the respondent's return memorandum and motion to dismiss, to which petitioner responded; the respondent replied. Dkts. 8, 11, 12. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that the respondent's motion to dismiss be GRANTED, petitioner's habeas petition and motion for preliminary injunction be DENIED, and this action be DISMISSED with prejudice.
Petitioner is a native and citizen of Jamaica who unlawfully entered the United States at an unknown location on an unknown date after a previous voluntary departure in 1978. Dkt. 10 at 2-3. In 1986, Petitioner was using an alias (Frederick Kirk Jost) and was convicted of sale or transportation of a controlled substance in California, for which he was sentenced to two years. Id. at 2. In 1990, Petitioner was convicted of second degree murder (with a firearm enhancement) under the same alias, and was sentenced to 17 years to life. Id. at 3. After serving approximately 30 years, Petitioner was released from prison and on October 10, 2019, ICE took him into custody pending issuance of a Notice to Appear (“NTA”); he has remained in ICE custody since that time. Id.
On October 16, 2019, ICE served Petitioner with an NTA charging him with inadmissibility pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(6)(A)(i), because he was a non-citizen who was not admitted or paroled into the United States. Dkt. 9-5. Petitioner was placed in removal proceedings and applied for relief from removal, including asylum. Dkt. 10 at 4. On January 27, 2020, an immigration judge (“IJ”) denied petitioner's applications for relief and ordered him removed to Jamaica. Dkt. 9-6. Petitioner appealed to the Board of Immigration Appeals (“BIA”), which dismissed his appeal on July 2, 2020. Dkt. 9-7.
On July 16, 2020, Petitioner filed a petition for review with the Ninth Circuit Court of Appeals and sought a stay of removal pending review. Dkt. 10 at 4. The Ninth Circuit on January 14, 2021 denied plaintiff's motion for a stay of removal and terminated the temporary stay. Id.; Dkt. 5 at 22-23; Bryan v. Garland, No. 20-72082, Dkt. 19 (9th Cir. Jan. 14, 2021). Petitioner's petition for review remains pending.
Petitioner appeared pro se for a bond redetermination hearing before an IJ on October 31, 2019 but withdrew his request for bond. Dkt. 10 at 3. The record does not reflect that Petitioner has had any other bond hearings. However, he has twice received custody redeterminations pursuant to the class action order in Fraihat v. ICE, 445 F.Supp.3d 751 (C.D. Cal. Apr. 20, 2020), as a detainee identified as potentially at higher risk for serious illness due to COVID-19. Dkt. 10 at 4-5. In both instances-on January 29, 2021 and on March 10, 2021-ICE determined that Petitioner's serious criminal history posed a threat to public safety and that continued detention was appropriate. Id. Plaintiff has since been fully vaccinated against COVID-19. Id.
The form petition filed by Petitioner asserts that his detention is governed by 8 U.S.C. § 1226(a). Dkt. 5 at 3. The respondent disagrees, asserting that the governing statute is 8 U.S.C. § 1231. Dkt. 8 at 2-4.
The respondent correctly identifies Title 8 U.S.C. § 1231 as the applicable authority for the detention and release of noncitizens like Petitioner who have been ordered removed. Under § 1231(a), DHS[1] is required to detain a noncitizen during the 90-day “removal period.” 8 U.S.C. §§ 1231(a)(2), (a)(1)(B). The removal period begins on the latest of the following:
8 U.S.C. § 1231(a)(1)(B) (emphasis added).
Here, the Ninth Circuit denied Petitioner's motion for a stay of removal on January 14, 2021. Dkt. 5 at 22-23. As a result, the statutory basis for Petitioner's detention shifted on that date to 8 U.S.C. § 1231. See Prieto-Romero v. Clark, 534 F.3d 1053, 1060 (9th Cir. 2008) () (emphasis in original).
Detention is mandated during the removal period. 8 U.S.C. §1231(a)(2). Here, the 90-day removal period began on January 14, 2021, when the Ninth Circuit adjudicated and denied Petitioner's motion for a stay of removal. See 8 U.S.C. § 1231(a)(2)(B)(ii). The removal period ended 90 days later, on April 14, 2021. After the 90-day period expires, DHS has the discretionary authority to continue to detain certain noncitizens, including those who are inadmissible under § 1182. 8 U.S.C. § 1231(a)(6). Because the IJ found Petitioner inadmissible under § 1182 (Dkts. 9-5, 9-6), Petitioner's detention is statutorily authorized.
Although § 1231(a)(6) authorizes ICE to detain petitioner, it cannot do so indefinitely. In Zadvydas v. Davis, the Supreme Court held that § 1231(a)(6) implicitly limits a noncitizen's detention to a period reasonably necessary to bring about that individual's removal from the United States and does not permit “indefinite” detention. 533 U.S. 678, 701 (2001). The Supreme Court also determined that it is “presumptively reasonable” for DHS to detain a noncitizen for six months following entry of a final removal order while it works to remove the individual from the United States. Id.
After the six months, if the noncitizen provides good reason to support an assessment that there is “no significant likelihood of removal in the reasonably foreseeable future”, the respondent is required to come forth with evidence sufficient to rebut the noncitizen's showing. Id. If the respondent fails to rebut the noncitizen's showing, the noncitizen is entitled to habeas relief. Id.
The six-month presumption Id. Nevertheless, courts must remember that “as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future' conversely would have to shrink.” Id.
Here, the 90-day period has expired but the six-month presumptively reasonable period does not expire until July 14, 2021. Further, there is no evidence in the record indicating that “there is no significant likelihood of removal.” Zadvydas, 533 U.S. at 701. Detention only becomes indefinite if, for example, the country designated in the removal order refuses to accept the noncitizen, or if removal is barred by the laws of this country. See Diouf v. Mukasey (“Diouf I”), 542 F.3d 1222, 1233 (9th Cir. 2008). There is no evidence ICE will not be able to remove Petitioner, or that Jamaica refuses to accept petitioner. Instead, the respondent has submitted evidence that removal is reasonably foreseeable. Dkt. 10 at 5-6.
Respondent states that ICE is in the process of obtaining a travel document for petitioner; it has submitted information to the Jamaican Embassy evidencing petitioner's citizenship and expects that a travel document will be issued by the Jamaican government. Id. Petitioner's removal will be executed upon such issuance. Id. Because petitioner's removal is not indefinite, he is not entitled to release. The Court therefore recommends that the petitions' request for release on due process grounds be denied.
Petitioner also requests a bond hearing. Dkt. 5 at 3. The Ninth Circuit has held that noncitizens subject to prolonged detention under § 1231(a)(6) are entitled to a bond hearing if removal is not imminent. Diouf v. Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011) (“Diouf II”); see also Aleman Gonzalez v. Barr, 955 F.3d 762, 765-66 (9th Cir. 2020) (reaffirming Diouf II's holding).
In Diouf II, the Ninth Circuit held that “an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community.” 634 F.3d at 1082. The court emphasized that the “focus . . . is upon prolonged detention, ” as the term is used in Zadvydas. Id. at 1091 (emphasis in original).
Specifically the court held that the government must provide a bond...
To continue reading
Request your trial