Quezada-Bucio v. Ridge
| Decision Date | 10 May 2004 |
| Docket Number | No. C03-3668L.,C03-3668L. |
| Citation | 317 F.Supp.2d 1221 |
| Parties | Ysaias QUEZADA-BUCIO, Petitioner, v. Tom RIDGE, et al., Respondents. |
| Court | U.S. District Court — Western District of Washington |
Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for Ysaias Quezada-Bucio, Petitioner.
Christopher Lee Pickrell, U.S. Attorney's Office, Seattle, WA, for Tom Ridge, Respondent.
AMENDED ORDER DENYING MOTION TO DISMISS AND GRANTING HABEAS PETITION
This matter comes before the Court on a report and recommendation (the "R & R") (Dkt.# 16) issued by the Honorable Mary Alice Theiler, United States Magistrate Judge, and a superseding motion to dismiss (Dkt.# 17) filed by Respondents Tom Ridge, et al. (collectively, "Respondents"). For the reasons set forth in this Order, the Court denies the motion to dismiss, adopts the R & R, and grants Petitioner's petition for writ of habeas corpus.
The facts regarding Petitioner's removal proceedings through January of 2004 are set forth in the R & R. See R & R at 2-4. On February 4, 2004 — the day before issuance of the R &R — the Board of Immigration Appeals ("the BIA") denied Petitioner's appeal of his order of removal. On the basis of the BIA's order, Respondents contend that Petitioner's habeas corpus petition is moot and should be dismissed. (Motion to Dismiss at 2).
1. Motion to Dismiss.
On August 26, 2003, Petitioner filed a habeas corpus petition under 28 U.S.C. § 2241, which challenges his continued detention pursuant the mandatory detention provisions of Immigration and Nationality Act ("INA") § 236(c), 8 U.S.C. § 1226(c). On February 4, 2004, the BIA affirmed the Immigration Judge's September 9, 2003 order of removal. See Motion Ex. 1. Respondents contend that the BIA decision converts his detention pursuant to INA § 236(c) to detention under INA § 241(a)(2), 8 U.S.C. § 1231(a)(2). Id. at 2-3.
Petitioner contends that a Ninth Circuit order in United States v. Passares-Galan, 02-10532, issued on February 20, 2004, shows that both the Immigration Judge and the BIA erred in finding that Petitioner's Washington State conviction for communication with a minor for immoral purposes constitutes sexual abuse. On this basis, on February 26, 2004, Petitioner filed an appeal of the BIA's decision with the Ninth Circuit. See Petitioner's Reply to Amended Return and Response to Motion to Dismiss (Dkt.# 18) Ex. 1. Petitioner contends that because he has appealed the BIA's decision and because his removal has been stayed pursuant to DeLeon v. INS, 115 F.3d 643 (9th Cir.1997), his custody is still governed by INA § 236 rather than INA § 241.1
INA § 241(a)(1)(B) provides that:
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
Another subsection of INA § 241 provides:
During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.
INA § 241(a)(2). Petitioner argues that prior to commencement of the removal period (Petitioner's Reply to Amended Return and Response to Motion to Dismiss at 4). Respondents contend that "once ... an alien's removal order becomes administratively `final' (i.e., upon issuance of the BIA's decision), detention authority reverts from INA § 236 to INA § 241(a)." (Respondents' Reply at 2 (citing De La Teja v. United States, 321 F.3d 1357, 1362-63 (11th Cir.2003))).
The Court recognizes that courts have issued published opinions that reach different conclusions regarding whether detention shifts from INA § 236 to INA § 241 when the order of removal becomes "final" or rather when the "removal period begins." Compare De La Teja v. United States, 321 F.3d 1357, 1362-63 (11th Cir.2003) ()2 (emphasis in original), with Clavis v. Ashcroft, 281 F.Supp.2d 490, 493 (E.D.N.Y.2003) (), and Milbin v. Ashcroft, 293 F.Supp.2d 158, 161 (D.Conn.2003) (). The Court finds that an alien is not subject to INA § 241 detention until the removal period begins. Therefore the mandatory detention provisions of INA § 241 do not apply to Petitioner. The "removal period" does not begin until the latest of:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
INA § 241(a)(1)(B). Section 241 authorizes detention "[d]uring the removal period." INA § 241(a)(2). Because Petitioner's removal order has been stayed by the Ninth Circuit pending its review of the BIA decision, the "removal period" has not yet commenced, and Petitioner therefore is detained pursuant to INA § 236.
Because the Court finds that Petitioner is subject to detention pursuant to INA § 236, the Court denies Respondents' motion to dismiss for mootness.
In the R & R, Judge Theiler recommended that the Court enter an order granting Petitioner's petition for writ of habeas corpus on the grounds that the Immigration Judge incorrectly determined that Petitioner is subject to mandatory detention under INA § 236(c). Having considered the R & R, the parties' submissions, and other records on file in this matter, the Court finds Judge Theiler's analysis of the "when released" term of INA § 236(c) and the Honorable William L. Dwyer's analysis of that term in a similar context to be correct. See R & R at 5-11; Pastor-Camarena v. Smith, 977 F.Supp. 1415 (W.D.Wash.1997). The Court therefore finds that because Petitioner was taken into immigration custody years after he was released from state custody, as opposed to "when [he was] released" from that custody, INA § 236(c) does not apply.
For the foregoing reasons, the Court FINDS and ORDERS as follows:
(1) The Court ADOPTS the Report and Recommendation and DESIGNATES it as an appendix to this Order;
(2) The Petition for Writ of Habeas Corpus (Dkt.# 1) is GRANTED;
(3) This matter is REMANDED to the Seattle Immigration Court for the purpose of providing Petitioner with an individualized bond hearing within 30 days of the date of the original Order Denying Motion to Dismiss and Granting Habeas Petition (Dkt.# 21). The Immigration Judge is ORDERED to determine, based on the standard set forth in INA § 236(a), whether, and under what conditions, Petitioner may be released from custody;
(4) Respondents' motions to dismiss (Dkt. 5, 17) are DENIED; and (5) The Clerk of the Court is directed to send copies of this Order to all counsel of record, and to the Honorable Mary Alice Theiler.
APPENDIX
AMENDED REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner is a native and citizen of Mexico who is currently in the custody of the Bureau of Immigration and Customs Enforcement ("BICE").1 On August 26, 2003, he filed, through counsel, a habeas corpus petition under 28 U.S.C. § 2241, which challenges his continued detention pursuant to the mandatory detention provision, section 236(c), of the Immigration and Nationality Act ("INA"). (Dkt.# 1). Respondents have moved to dismiss this case, arguing that petitioner's detention is lawful because it is mandated by INA § 236(c) while he is "in removal proceedings." (Dkt.# 5).
Having reviewed the entire record, including the habeas petition and brief in support (Dkts. # 1 and # 2), respondents' return and status report ("RSR") and motion to dismiss (Dkt.# 5), petitioner's response to the motion to dismiss (Dkt.# 7), respondents' reply to petitioner's response (Dkt.# 9) and supplemental authority in support (Dkt.# 15), and the balance of the record, I recommend that the Court GRANT petitioner's habeas petition, and DENY respondents' motion to dismiss.
BACKGROUND
The parties apparently agree on petitioner's immigration and criminal background. (See Dkts. # 1, # 2 and # 5). Petitioner, Ysaias Quezada-Bucio, came to the United States from Mexico in 1984. He has been a lawful permanent resident since 1990. (Dkt. # 2 at 2). On June 5, 2000, he pleaded guilty in Lewis County Superior Court to Communication with a Minor for Immoral Purposes. (Dkt. # 2, Exhibit 5). As a result, he was sentenced to 35 days in jail, followed by a suspended sentence of 330 days. (Dkt. # 2 at 2). Petitioner completed his sentence in June of 2000, and is no longer subject to state custody or supervision. It also appears that petitioner has had no further criminal conduct.
Petitioner was taken into custody by immigration officers on or about August 13, 2003. (Dkt. # 2 at 2)....
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