Castillo v. Ice Field Office Dir.

• Citation: 907 F.Supp.2d 1235
• Decision Date: 14 November 2012
• Docket Number: Case No. C12–502–MJP–MAT.
• Parties: Elton CASTILLO, Plaintiff, v. ICE FIELD OFFICE DIRECTOR, Defendant.
• Court: U.S. District Court — Western District of Washington

907 F.Supp.2d 1235

Elton CASTILLO, Plaintiff,
v.
ICE FIELD OFFICE DIRECTOR, Defendant.

Case No. C12–502–MJP–MAT.

United States District Court,
W.D. Washington,
at Seattle.

Nov. 14, 2012.

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Elston Castillo, Tacoma, WA, pro se.

Priscilla To–Yin Chan, U.S. Attorney's Office, Seattle, WA, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION WITH AMENDMENT
MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on the Report and Recommendation filed by Magistrate Judge Theiler recommending that Petitioner's petition for writ of habeas corpus be granted, Respondent's motion to dismiss be denied, and that Petitioner be granted an individualized bond hearing before an immigration judge. (Dkt. No. 18.) Having reviewed the report and recommendation, the objections filed by Respondent (Dkt. No. 19), and the remaining record, the Court ADOPTS the Report and Recommendation with AMENDMENT, GRANTS Petitioner's petition for writ of habeas corpus, DENIES the Government's motion to dismiss, and ORDERS Respondent to provide petitioner with an individualized bond hearing before an immigration judge within 30 days of the entry of this Order.

Background

This case concerns the issue of whether the mandatory detention statute, INA § 236(c), applies to aliens who have been taken into immigration custody several months or years after being released from state custody. Other district court judges in this district have consistently held that it does not. See, e.g., Quezada–Bucio v. Ridge, 317 F.Supp.2d 1221, 1228 (W.D.Wash.2004); Pastor–Camarena v. Smith, 977 F.Supp. 1415 (W.D.Wash.1997). However, the Government asks the Court to follow the Fourth Circuit's recent decision in Hosh v. Lucero reaching the opposite conclusion. 680 F.3d 375 (4th Cir.2012).

Petitioner Elston Castillo is a native and citizen of Belize who first came to the United States in 1977, when he was about 9 years old. (ARL 719.) In 1983, Castillo adjusted to lawful permanent resident status. ( Id.) Petitioner's mother, Henrietta Ovado, became a U.S. citizen in 1991. (ARL 688.) Castillo attended elementary school, junior high school, and high school in Southern California, and from 1992–1994 attended the National Technical College in Los Angeles, where he obtained a certificate for computer aided drafting. (ARL 719.)

On Oct. 23, 1997, Petitioner pled guilty in superior court in Pierce County, Washington, to one count of unlawful use of a fortified building in order to deliver controlled

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substances. (AR L 12.) He was sentenced to twenty-four months of community supervision. ( Id.) On Sept. 6, 2001, Petitioner was convicted in U.S. District Court for the Northern District of Indiana for the offense of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to twenty-seven months of imprisonment. (AR L 24–25.) Petitioner was placed in removal proceedings, and was removed to Belize on Feb. 18, 2003. (Dkt. No. 18 at 2.)

In 2004, Petitioner reentered the United States by crossing the border near San Ysidro, California, without inspection. (AR 719.) ICE agents noticed Petitioner in April 2009, when he applied for a U.S. passport in the name of Elston Avado, his mother's surname. (Dkt. No. 18 at 2.) On July 23, Petitioner was indicted in the U.S. District Court for the District of Alaska of two counts of False Statement in United States Passport Application in violation of 18 U.S.C. § 1542.( Id.) On Nov. 16, 2010, Petitioner was apprehended in Washington State and taken into custody on the outstanding warrant. (AR R322.) He was convicted of those charges on June 9, 2011, and sentenced to time served and three years supervised probation. ( Id.)

Four days later, on June 13, 2011, ICE issued Petitioner a Notice of Intent/Decision to Reinstate Prior Order, informing Petitioner that pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), he was “removable as an alien who has illegally reentered the United States having been previously removed ... while under an order of exclusion, deportation or removal and [ ] therefore subject to removal by reinstatement of the prior order.” (Dkt. No. 18 at 3.) Petitioner was transferred to the Northwest Detention Center in Tacoma, Washington. ( Id.)

On Oct. 14, 2011, an asylum officer interviewed Petitioner after he expressed a fear of returning to Belize. (ARL 719.) Petitioner told the asylum officer he feared he would be harmed on account of his Rastafarian religious beliefs and because he is a criminal deportee. ( Id.) According to the officer, Petitioner credibly testified that Belizean police repeatedly beat him and made death threats against him between February 2003 and May 2004. (ARL 717.) The officer found Petitioner “demonstrated that he has been subject to torture in the past because police beat him repeatedly on numerous occasions, choked him once, and shot at him.” ( Id.) The officer found “[t]he torture inflicted on the applicant in the past demonstrates that the torturer he fears has a specific intent to inflict harm on him that meets the definition of torture.” ( Id.)

Based on this credible testimony and on various country conditions reports, the asylum officer determined that Petitioner had established a reasonable fear of persecution and torture if he were to return to Belize, and referred his case to an immigration judge to determine whether he is entitled to withholding of removal. (ARL 717–20.) Specifically, the asylum officer found that “[a] preponderance of the evidence does establish that there is a reasonable possibility that the applicant would face intentionally inflicted cruel or inhuman treatment amounting to torture not occurring as a result of lawful sanctions from the Belizean police while he is in their custody or control if he were to return to Belize.” (AR 717.)

On April 3, 2012, Petitioner filed the instant habeas petition, challenging the lawfulness of his continued detention and seeking either supervised release or a bond hearing. (Dkt. No. 18 at 3.) Respondent has filed a motion to dismiss, arguing that the petition should be denied because Petitioner is subject to mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c). ( Id.) Alternatively, Respondent

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contends that Petitioner is lawfully detained under INA § 236(a), 8 U.S.C. § 1226(a), pending a determination on whether he is to be removed. ( Id.) A hearing was scheduled before an immigration judge for June 26, 2012, but the present record does not indicate if that hearing was ever held. ( Id.)

In her Report and Recommendation, Magistrate Judge Theiler recommended granting Petitioner's habeas petition and ordering that an individualized bond hearing occur within thirty days. (Dkt. No. 18 at 8.) Magistrate Judge Theiler concluded that Petitioner is not subject to mandatory detention under INA § 236(c), because Petitioner was not taken into immigration custody on the underlying offense at the time he has apprehended in 2011. ( Id. at 7.) Therefore, she concluded, Petitioner's detention is governed by INA § 236(a), which authorizes the immigration judge to release him on bond or conditional parole if he is neither a flight risk nor a danger to the community. ( Id. at 7–8.)

The Government objects on two grounds. First, it argues that the text of INA § 236(c)—which says ICE must take into custody “any alien who ... is deportable for having committed ... any offense covered in section ... 237(a)(2)(C) .. when the alien is released (emphasis added)”—is ambiguous, and does not clearly mean that mandatory detention applies only to those aliens taken into immigration custody immediately after their release from custody. (Dkt. No. 19 at 3.) Because the language is ambiguous, Respondent argues, the Court should afford deference to the interpretation of the Board of Immigration Appeals, and hold that mandatory detention applies to Petitioner. ( Id. at 3–7.)

Second, Respondent objects that Magistrate Judge Theiler never addressed its argument that Petitioner's continued detention is lawful pursuant to INA § 236(a) and 8 C.F.R. §§ 241.8 and 241.4(c). (Dkt. No. 19 at 7–9.) Respondent asserts these provisions permit the district...