Casas-Castrillon v. Department of Homeland Sec.

• Decision Date: 25 July 2008
• Docket Number: No. 07-56261.,07-56261.
• Citation: 535 F.3d 942
• Parties: Luis Felipe CASAS-CASTRILLON, Petitioner-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; Bill Lockyer, Attorney General; US Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

535 F.3d 942

Luis Felipe CASAS-CASTRILLON, Petitioner-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; Bill Lockyer, Attorney General; US Attorney General, Respondents-Appellees.

No. 07-56261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 7, 2008.

Filed July 25, 2008.

James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for the petitioner-appellant.

Karen P. Hewitt, United States Attorney; Thomas Stahl and Samuel W. Bettwy, Assistant United States Attorneys, and Thomas Dupree (argued), United States Department of Justice, Washington, D.C., for the respondents-appellees.

Judy Rabinovitz, ACLU Foundation, New York, NY; Cecillia D. Wang, ACLU Foundation, San Francisco, CA; Ahilan T. Arulanantham and Ranjana Natarajan, ACLU Foundation of Southern California, Los Angeles, CA; Jayashri Srikantiah, Stanford Law School Immigrants' Rights Clinic, Stanford, CA; for the amicus curiae ACLU Foundation and ACLU Foundation of Southern California.

Rachael Keast, Florence Immigrant and Refugee Rights Project, Florence, AZ; Nancy Morawetz, Washington Square Legal Services, Inc., New York, NY; for the amicus curiae the Florence Immigrant and Refugee Rights Project, the American-Arab Anti-Discrimination Committee, the American Immigration Lawyers Association, the Asian Law Caucus, the Center for Constitutional Rights, the Center for Gender and Refugee Studies, the Cornell Asylum and Convention Against Torture Appellate Law Clinic, Hate Free Zone, Human Rights Watch, the International Detention Coalition, the Northwest Immigrant Rights Project, Minnesota Advocates for Human Rights, the National Immigrant Justice Center, the National Immigration Project of the National Lawyers Guild, the New York State Defenders Association Immigrant Defense Project and the U.C. Davis Immigration Law Clinic.

Appeal from the United States District Court for the Southern District of California; Roger T. Benitez, District Judge, Presiding. D.C. No. CV-05-01552-BEN.

Before: JEROME FARRIS, RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges.

FISHER, Circuit Judge:

This appeal concerns whether the government may detain an alien who is a legal permanent resident of the United States for seven years without providing him with an adequate opportunity to contest the necessity of his detention before a neutral decision maker. We conclude that a prolonged detention must be accompanied by appropriate procedural safeguards, including a hearing to establish whether releasing the alien would pose a danger to the community or a flight risk.

Luis Felipe Casas-Castrillon ("Casas") is a native and citizen of Colombia and has been a legal permanent resident of the United States since 1990. He was served with a notice to appear and detained by the Immigration and Naturalization Service in August 2001, following his release from a state prison for a conviction on an auto burglary charge.¹ An immigration judge ("IJ") found that Casas was a removable alien because he had been convicted of two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii) (providing that "[a]ny alien who . . . is convicted of two or more crimes involving moral turpitude . . . is deportable").² Casas appealed this determination to the Board of Immigration Appeals ("BIA"), which affirmed the removal order in July 2002.

From that time until the present, Casas has remained in the continuous custody of the federal government while he has pursued various avenues of relief from removal in the federal district court and the court of appeals, some successful and some not. While he has sought judicial review, his removal has been stayed by court orders for much of the period from 2002 to the present. As of the time that this opinion is filed, Casas is now back before the BIA after this court granted his petition for review of his final order of removal. During this nearly seven-year period of detention, it is unclear what, if any, opportunity Casas has had to argue to a neutral decision maker that his detention is unnecessary because he does not pose a danger to the community or a flight risk.

Casas filed the instant petition for habeas corpus under 28 U.S.C. § 2241 on August 4, 2005. At that time, his administrative proceedings had been complete for approximately three years, but he was awaiting our court's review of his timely filed petition for review of his final removal order. In his pro se habeas petition to the district court, Casas argued that his detention had become indefinite and was therefore not authorized by any statute, and that his prolonged detention without a meaningful opportunity to contest the necessity of continued detention violated his right to procedural due process. The district court denied Casas' petition on August 15, 2007, and we granted expedited review. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we reverse.

As we explained in Prieto-Romero v. Clark, No. 07-35458, 2008 WL 2853396, slip op. at 9292 (9th Cir. July 25, 2008), Casas' entitlement to relief turns in part on locating him within the statutory framework of detention authority provided by Sections 236 and 241 of the Immigration and Nationality Act, codified at 8 U.S.C. §§ 1226 and 1231. This is because "[w]here an alien falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention." Id. Casas and the government vigorously dispute which statutory provision governs his detention. We conclude that Congress has provided the Attorney General with authority to detain Casas under § 1226(a), which gives the Attorney General a broad grant of discretionary authority to detain an alien "pending a decision on whether the alien is to be removed from the United States."

A.

The statutory scheme governing the detention of aliens in removal proceedings is not static; rather, the Attorney General's authority over an alien's detention shifts as the alien moves through different phases of administrative and judicial review. This makes the task of determining where an alien falls within this scheme particularly difficult for a reviewing court, because the Attorney General's authority over the alien can present a moving target. The Attorney General's authority over the alien at the time his habeas corpus petition is filed may differ from the authority at the time we hear oral argument on appeal, which may differ in turn from the authority at the time our opinion is filed. Casas' own case presents this problem, because we have considered, granted and remanded Casas' petition for review of his removal order during the same period that we have been considering on appeal his habeas corpus challenge, actions that arguably affect the Attorney General's statutory authority over his detention.

To determine by what authority the Attorney General currently may detain Casas, it is helpful to begin with the Attorney General's authority to detain Casas initially — detention authority Casas does not dispute. Casas was charged with being removable for having committed two crimes involving moral turpitude, and Congress has mandated that such aliens must be taken into custody at the time they are charged. See § 1226(c)(1)(B) ("The Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) . . . .") (emphasis added). The Attorney General may release an alien detained under § 1226(c) only for narrow reasons not implicated here. See § 1226(c)(2). Unlike noncriminal aliens, who are detained under § 1226(a), aliens detained under § 1226(c) are not given a bond hearing before an IJ. Thus these aliens do not have the opportunity to show — as noncriminal aliens would — that their detention 9779 is unnecessary because they do not pose a danger to the community or a flight risk.

Although the Attorney General's initial statutory authority to detain Casas is undisputed, both parties agree that § 1226(c) at some point no longer governed Casas' detention. As Casas' case ably demonstrates, aliens challenging an order of removal may languish in the system for years. Even after the BIA has entered a final order of removal, an alien may petition for review of that removal order with the court of appeals in the judicial circuit in which his immigration proceedings occurred. See § 1252(b). Before Congress enacted the REAL ID Act ("RIDA") in May 2005, Pub.L. No. 109-13, Div. B, 199 Stat. § 231 (2005), certain aliens could also obtain judicial review of constitutional questions or questions of law raised by their final orders of removal through a petition for habeas corpus brought in the district court. See Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir.2000). Even post-RIDA, aliens may continue to bring collateral legal challenges to the Attorney General's detention authority — such as in this case — through a petition for habeas corpus. See Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir.2006) (holding that "the jurisdiction-stripping provision [of RIDA] does not apply to federal habeas corpus petitions that do not involve final orders of removal"). The courts of appeals have the authority to enter judicial stays of removal for aliens who have petitions for review or habeas corpus petitions pending. See § 1252(b)(3)(B). This means that many aliens may continue to be detained for months, if not years, after their removal order is finalized by the agency, while they seek review of the legal or factual basis for their removal.

Casas has himself explored all of these possible avenues of review and relief. After the BIA affirmed his order of removal, Casas — acting pro se and apparently unfamiliar with the proper avenue for seeking review of his removal order — first filed with the district court in October 2002 a petition for habeas corpus...