Prieto-Romero v. Clark

Decision Date25 July 2008
Docket NumberNo. 07-35458.,07-35458.
Citation534 F.3d 1053
PartiesJose Manuel PRIETO-ROMERO, Petitioner-Appellant, v. A. Neil CLARK, Officer in Charge, Detention and Removal Operations: Northwest Detention Center; Michael Chertoff, Secretary of Homeland Security; Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States; and any and all other persons exercising direct legal custody over the petitioner, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gjon Juncaj (argued), Department of Justice, Office of Immigration Litigation, Washington, DC; Jeffrey C. Sullivan, United States Attorney, Priscilla To-Yin Chan, Assistant United States Attorney, Western District of Washington, Seattle, WA, for the respondents-appellees.

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

Rachael Keast, Florence Immigrant and Refugee Rights Project, Florence, AZ; Nancy Morawetz, Heidi Altman, Mandy Hu, Washington Square Legal Services, Inc., New York, NY, for amicus curiae Florence Immigrant and Refugee Rights Project, et al.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-06-00786-RSL.

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

FISHER, Circuit Judge:

This appeal from the district court's denial of Jose Manuel Prieto-Romero's habeas corpus petition concerns whether the government may continue to detain a legal permanent resident of the United States for over three years while he seeks administrative and judicial review of his removal order. We hold that this continued civil detention, although lengthy, is authorized by statute, and so we affirm the district court.

The facts of this case are straightforward and not disputed by either party. Prieto-Romero, a native and citizen of Mexico, has been a legal permanent resident of the United States since 1981. He was served with a notice to appear and detained by the Department of Homeland Security in February 2005. An immigration judge ("IJ") found that Prieto-Romero was a removable alien because he had been convicted of an aggravated felony in 1989. See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for removal of an alien convicted of an aggravated felony, as defined by § 1101(a)(43)(A)).1 Prieto-Romero appealed the IJ's ruling to the Board of Immigration Appeals ("BIA"), which affirmed the removal order in September 2005. He then filed a timely petition for review in the Ninth Circuit Court of Appeals. We entered a stay of removal pending consideration of his petition for review, which remains unresolved as of the filing of this opinion. See § 1252(b).

From February 2005 until the present, Prieto-Romero has remained in the continuous custody of the federal government. Concurrent with the government's issuance of the notice to appear, the Attorney General determined that Prieto-Romero should be placed in detention. Pursuant to Department of Homeland Security ("DHS") regulations, Prieto-Romero requested and received a bond redetermination hearing in May 2005 before an IJ, who declined to grant bond. In July 2005, after Prieto-Romero successfully appealed the IJ's ruling to the BIA, the IJ again denied bond, finding that Prieto-Romero "constitutes a flight risk." Prieto-Romero appealed once more to the BIA, but the BIA affirmed his removal order before it had a chance to reach the merits of his bond appeal. See 8 C.F.R. § 1236.1(d)(3). Between February 2006 and May 2006, DHS officials conducted a file custody review and concluded that Prieto-Romero should remain in detention "pending the result of [his petition for review] before the Ninth Circuit Court of Appeals."

Prieto-Romero filed the instant petition for habeas corpus under 28 U.S.C. § 2241 in June 2006. At that time, his administrative proceedings before the IJ and BIA had been complete for approximately one year. In his petition for habeas corpus, Prieto-Romero argued that his prolonged detention violates both his substantive and procedural due process rights and is not authorized by any statute. In February 2007, the district court ordered DHS to hold an additional bond hearing for Prieto-Romero where he would bear the burden of proof; at the hearing, the IJ was to make an "individualized determination as to whether petitioner is a flight risk or a danger to the community," "consider all the factors relevant to discretionary detention under [§ 1226(a)]" and, in so doing, "consider all the relevant factors provided in 8 C.F.R. § 241.4(f)."2 In this third bond hearing, the IJ set bond at $15,000, an amount Prieto-Romero has been unable to pay. The district court thereafter denied Prieto-Romero's petition for habeas corpus and he has now appealed that order. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).

In his petition, Prieto-Romero principally argues that the Attorney General does not currently have the authority to detain him because his detention has become prolonged and indefinite and is therefore not authorized by any statute. See Zadvydas v. Davis, 533 U.S. 678, 696, 699-700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). To determine whether Congress has authorized his detention, we must first identify the statutory provision that purports to confer such authority on the Attorney General. This requires that we locate Prieto-Romero within the complex 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. We hold, first, that the Attorney General's authority to detain aliens such as Prieto-Romero is found in § 1226(a). Second, we hold that Prieto-Romero's detention remains authorized under this statute because his repatriation to Mexico is practically attainable in the event his petition for review of his administratively final order of removal is ultimately denied. Lastly, we reject Prieto-Romero's suggestion that any purported procedural defects in his bond hearings violated his due process rights. Accordingly, we affirm the district court.

I.

Prieto-Romero and the government dispute whether the Attorney General's authority to detain Prieto-Romero derives from § 1226(a), under which the Attorney General has the discretionary authority to detain an alien "pending a decision on whether the alien is to be removed from the United States," or § 1231(a)(2) and (a)(6), under which the Attorney General has the authority to detain aliens "during" and "beyond" their "removal period." Where 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. We hold that the Attorney General's statutory authority to detain Prieto-Romero, whose administrative review is complete but whose removal is stayed pending the court of appeals' resolution of his petition for review, must be grounded in § 1226(a).

A.

The parties agree that § 1226(a) provided the statutory authority for the Attorney General's initial detention of Prieto-Romero.3 The Attorney General may issue a warrant of arrest concurrently with the notice to appear. See § 1226(a); see also 8 C.F.R. § 236.1(a). After an alien is detained, the DHS district director makes an initial custody determination and may allow the alien's release on bond. See 8 C.F.R. § 236.1(d). If the alien objects to the director's bond determination, he may request a bond redetermination hearing before an IJ at any time before the issuance of an administratively final order of removal. See id.; see also 8 C.F.R. § 1003.19(c). The alien may appeal the IJ's bond decision to the BIA, see 8 C.F.R. § 236.1(d)(3), but discretionary decisions granting or denying bond are not subject to judicial review, see § 1226(e). Before Prieto-Romero filed his habeas corpus petition, he had received two bond hearings before an IJ under this regime. The BIA vacated the IJ's first denial of bond because the IJ erroneously placed sole reliance on a presumption that aggravated felons are unsuitable for bond. At the second hearing, the IJ again denied Prieto-Romero release on bond, finding him a flight risk. Prieto-Romero concedes that he was subject to detention under § 1226(a) during this process while the IJ and BIA were considering the merits of his removal order.

B.

Prieto-Romero contests the legality of his present detention, however, now that the BIA has affirmed his removal order and his petition for review is pending before the court of appeals pursuant to § 1252(a)(1). We must therefore decide what statutory authority governs an alien's detention at this stage of his legal challenge to his removal. As Prieto-Romero's case demonstrates, an alien whose removal order is administratively final is not necessarily immediately deported. When an alien files a petition for review of an administratively final order of removal, we have the authority to enter a judicial stay of removal. See § 1252(b)(3)(B). Approximately two of Prieto-Romero's three years in federal custody have passed while he has been awaiting a decision of our court on his petition for review.

The statutory scheme governing the detention of such aliens is not a model of clarity. The government argues that aliens such as Prieto-Romero are detained under the Attorney General's grant of authority in § 1231(a). Prieto-Romero responds that aliens whose judicial...

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