Djelassi v. Ice Field Office Dir.

• Decision Date: 17 January 2020
• Docket Number: Case No. C19-491-RSM
• Citation: 434 F.Supp.3d 917
• Parties: Firas DJELASSI, Petitioner, v. ICE FIELD OFFICE DIRECTOR, Respondent.
• Court: U.S. District Court — Western District of Washington

434 F.Supp.3d 917

Firas DJELASSI, Petitioner,

v.ICE FIELD OFFICE DIRECTOR, Respondent.

Case No. C19-491-RSM

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

Signed January 17, 2020

ORDER ADOPTING R & R AND GRANTING HABEAS PETITION

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

The matter comes before the Court on the Report and Recommendation (R & R) of the Honorable Michelle L. Peterson, United States Magistrate Judge. Dkt. #18. Having reviewed the R & R, Respondent's objections thereto, Dkt. #19, Petitioner's response, Dkt. #20, and the remainder of the record, the Court agrees with the recommendation of the R & R to deny Respondent's motion to dismiss and grant Petitioner's habeas petition.

II. BACKGROUND

The Court adopts and incorporates by reference the factual background set forth in the R & R. Dkt. #18 at 2-3. Petitioner Firas Djelassi is a native and citizen of Tunisia who applied for asylum in February 2018. U.S. Citizenship and Immigration Services ("USCIS") determined it lacked jurisdiction and referred his application to an immigration judge ("IJ"). The IJ denied his asylum application and ordered him removed to Tunisia. After Mr. Djelassi appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), the BIA dismissed his appeal. Petitioner timely filed a petition for review and motion to stay his removal, which is currently pending before the Ninth Circuit. See Djelassi v. Barr , No. 19-70184 (9th Cir. Jan. 17, 2019). The Ninth Circuit stayed Petitioner's removal pending adjudication of his petition for review.

Petitioner has been detained at the Northwest Detention Center since May 21, 2018. Dkt. #18 at 3. He appeared for a bond hearing on February 7, 2019, but the IJ determined she lacked jurisdiction to grant bond. Dkt. #7 at 65. Petitioner did not appeal the IJ's decision. On March 26, 2019, the U.S. Department of Homeland Security ("DHS") conducted a Post-Order Custody Review and denied release due to Petitioner's "complete disregard for the immigration laws of the United States" and because his "release from custody would not be in the public interest." Id. at 68-76.

On April 3, 2019, Petitioner brought this 28 U.S.C. § 2241 immigration habeas action to obtain release or a bond hearing. Dkt. #3. The Government moved to dismiss on the basis that Petitioner is lawfully detained and not entitled to a bond hearing. Dkt. #7. On November 27, 2019, Judge Peterson issued the R & R recommending that the Court deny the Government's motion to dismiss, grant Petitioner's habeas petition, and order the Government to provide Petitioner with a bond hearing within thirty (30) days from the date of this Order. Dkt. #18 at 16. In reaching this conclusion, the R & R found that Petitioner remains detained under 8 U.S.C. § 1225(b)(1) and is not statutorily entitled to a bond hearing, Id. at 6-10, but that he is guaranteed a bond hearing under the Due Process Clause of the Fifth Amendment. Id. at 10-16.

III. DISCUSSION

A. Legal Standard

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

B. Test to Determine Whether Petitioner's Detention Violates Due Process

To determine whether Petitioner's detention without a bond hearing violates due process, the R & R applied the six-factor test set forth in Banda v. McAleenan , 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019). Dkt. #18 at 13-16. In Banda , Judge Robart adopted a six-factor test to determine whether prolonged mandatory detention violates due process in a particular case: "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." Banda , 385 F. Supp. 3d at 1106 (quoting Jamal A v. Whitaker , 358 F. Supp. 3d 853, 858-59 (D. Minn. 2019) ). Here, the R & R found that four of the six Banda factors weighed in favor of granting Petitioner a bond hearing and two of the factors were neutral. Dkt. #18 at 16. Accordingly, Judge Peterson concluded that Petitioner's removal was unreasonably prolonged and due process required that he be granted a bond hearing. Id. (citing Banda , 385 F. Supp. 3d at 1120–21 ).

The Government objects that the R & R erred in applying the six-part test under Banda instead of the three-part test under Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) to determine whether Petitioner is entitled to a bond hearing. The Banda court declined to apply the three-factor Mathews test where the petitioner had received no prior bond hearing, on the basis that the Mathews test "balances the benefits or burdens of ‘additional or substitute procedural safeguards’ " and therefore "does not resolve the more fundamental issue of whether any procedure—such as a bond hearing—must be provided." Banda , 385 F. Supp. 3d at 1106 (quoting Mathews , 424 U.S. at 334, 96 S.Ct. 893 ) (emphasis added). Under Mathews , the court must consider (1) the private interest affected; (2) the government's interest; and (3) the value added by additional or substitute procedural safeguards in the situation before the court. Mathews , 424 U.S. at 334, 96 S.Ct. 893 (emphasis added). Banda reasoned that "[w]hile the Mathews factors may be well-suited to determining whether due process requires a second bond hearing, they are not particularly probative of whether prolonged mandatory detention has become unreasonable in a particular case." Banda , 385 F. Supp. 3d at 1118.

Here, the Government objects to the R & R's application of Banda because Petitioner received a Post-Order Custody Review on March 26, 2019, that assessed whether he was a danger or flight risk. Dkt. #20 at 2. This review was conducted by U.S. Immigration and Customs Enforcement ("ICE") pursuant to 8 U.S.C. § 1182(d)(5)(A), which authorizes DHS to discretionarily grant parole authority for "urgent humanitarian reasons" or "significant public benefit." Id. ; see also 8 C.F.R. §§ 212.5(b) - (c) ; 235.3(b)(2)(iii)-(4)(ii) (federal regulations describing factors for appropriateness of parole). Upon review of Petitioner's file and information by ICE's reviewing officials, ICE declined to grant discretionary parole. Dkt. #7 at 67-76. The Government reasons that this prior custody review constitutes "process" that requires application of Mathews instead of Banda , since Petitioner was provided an interview and an opportunity to submit documentary evidence. Dkt. #20 at 2.

The Court finds that Rodriguez v. Robbins forecloses the Government's argument that a discretionary parole custody review qualifies as past due process afforded to Petitioner. 715 F.3d 1127 (9th Cir. 2013), abrogated on other grounds sub. nom Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018). In Rodriguez , the Ninth Circuit concluded that the discretionary parole system available to § 1125(b) detainees does not constitute legitimate due process under the Fifth Amendment to address continued detention. Id. at 1144 ("[T]he discretionary parole system available to § 1125(b) detainees is not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention."). The Ninth Circuit reached this conclusion because of the different standards of review between bond hearings and discretionary parole reviews and the fact that the parole system "is purely discretionary and its results are unreviewable by IJs." Id.

Moreover, nothing in Banda supports the Government's proposition that a bond hearing before an IJ constitutes "additional process" if preceded by a discretionary custody review conducted by ICE. On the contrary, Banda indicates that "additional process" for § 1125(b) detainees refers to instances where the petitioner has already received a constitutionally sufficient hearing by a neutral decision maker and seeks a second hearing. See Banda , 385 F. Supp. 3d at 1118 ("The Court is aware of only one § 1225(b) case that applied the Mathews factors, and that case is distinguishable from the instant action because the petitioner had already received ... a Rodriguez III [Rodriguez v. Robbins , 804 F.3d 1060 (9th Cir. 2015) ] bond hearing and was seeking a second hearing.") (citing Singh v. Nielsen , No. 18-2490, 2018 WL 4110549, at *3 (N.D. Cal. Aug. 29, 2018) ). Accordingly, Petitioner's prior custody review does not constitute past "process" that requires application of Mathews , and the R & R appropriately applied the six Banda factors.

Finally, although Petitioner appeared for a bond hearing on February 7, 2019, neither party has addressed the question of whether Petitioner's prior appearance constitutes past process that requires application of Mathews instead of Banda . The R & R noted that the IJ declined to hear Petitioner's case for lack of jurisdiction, see Dkt. #7 at 65, and proceeded with the Banda analysis on the basis that Petitioner has not yet received a constitutionally sufficient bond hearing. Dkt. #18 at 3. The Government made no objections on this point. See generally Dkt. #20. Given that Petitioner's case for bond was never heard on the merits, the Court finds no basis to disturb the R & R's finding.

C. Petitioner's Constitutional Right to Due Process

The Government also objects that under Shaughnessy...