IMMIG DC9 Habeus Removal Bond

Case 2:08-cv-00584-MJP Document 20 Filed 07/25/2008 Page 1 of 14
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06 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
07 AT SEATTLE
08 VOLSAINT DOISSAINT, ) CASE NO. C08-0584-MJP

)
09 Petitioner, )
)
10 v. ) REPORT AND RECOMMENDATION
)
11 MICHAEL CHERTOFF, et al., )
)
12 Respondents. )
____________________________________ )
13
14 I. INTRODUCTION AND SUMMARY CONCLUSION
15 Petitioner Volsaint Doissaint, proceeding through counsel, has filed a Petition for Writ of
16 Habeas Corpus pursuant 28 U.S.C. § 2241, challenging his detention without bond for more than
17 thirty-four months by the U.S. Immigration and Customs Enforcement (“ICE”). (Dkt. 4).
18 Petitioner requests that the Court grant his immediate release or, alternatively, a prompt bond
19 hearing before an Immigration Judge, arguing that his continued detention violates the United
20 States Constitution and the Immigration and Nationality Act (“INA”). Respondents have filed a
21 Return and Motion to Dismiss, arguing that petitioner is lawfully detained pending adjudication
22 of his Petition for Review pending before the Ninth Circuit Court of Appeals. (Dkt. 12).
REPORT AND RECOMMENDATION

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COURTESY OF WWW.BIBDAILY.COM
01 Having carefully reviewed the entire record, I recommend that petitioner’s habeas petition
02 (Dkt. 4) and cross-motion for summary judgment (Dkt. 16) be GRANTED, and respondents’
03 motion to dismiss (Dkt. 12) be DENIED.
04 II. BACKGROUND AND PROCEDURAL HISTORY
05 Petitioner is a native and citizen of Haiti who was paroled into the United States at Miami,
06 Florida, on June 11, 1992, under Section 212(d)(5) of the INA. (Dkt. 15 at R5). Petitioner
07 applied for and was granted asylum on November 30, 1993. (Dkt. 15 at L61-64). Petitioner
08 subsequently adjusted his status to that of lawful permanent resident as of June 1, 1995. (Dkt. 15
09 at L93).
10 On May 19, 2000, petitioner was convicted in the Circuit Court for the State of Oregon,
11 County of Multnomah, for the offense of Assault II in violation of Oregon Revised Statute
12 163.175, and was sentenced to seventy months incarceration. (Dkt. 15 at L116-20).
13 On September 12, 2000, ICE served petitioner with a Notice to Appear, charging him with
14 being removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for having been
15 convicted of an aggravated felony as defined in INA § 101(a)(43)(F), relating to a crime of
16 violence, and under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for having been convicted
17 of a crime of domestic violence. (Dkt. 15 at L104-05). On September 28, 2005, petitioner was
18 released from state custody and transferred directly into ICE custody. (Dkt. 15 at R291-92,
19 L111). Petitioner has been detained without bond since that date.
20 On January 17, 2006, petitioner appeared pro se for a merits hearing before an Immigration
21 Judge (“IJ”). Following the hearing, the IJ denied petitioner’s applications for asylum, withholding
22 of removal, and relief under the Convention Against Torture (“CAT”), and ordered him removed

PAGE -2
01 to Haiti. (Dkt. 15 at L297-305). Petitioner, through counsel, appealed the IJ’s decision to the
02 Board of Immigration Appeals (“BIA”), who affirmed the IJ’s decision and dismissed the appeal
03 on May 26, 2006. (Dkt. 15 at L306-310). Although petitioner had appealed the denial of his
04 applications for cancellation of removal and for protection under the CAT, the BIA stated in a
05 footnote that petitioner “does not appeal the denial of his application for cancellation of removal
06 or his request for protection under the Convention Against Torture. We thus deem those issues
07 abandoned and need not address them here.” (Dkt. 15 at L293; L307, n1). Petitioner, through
08 counsel, filed a Petition for Review of the BIA’s decision with the Ninth Circuit Court of Appeals,
09 along with a motion for stay of removal. See Doissaint v. Mukasey, No. 06-73218. Under Ninth
10 Circuit General Order 6.4(c)(1)(3), this caused a temporary stay of removal to automatically issue.
11 Id. While his Petition for Review was pending, petitioner also filed a motion to reopen with the
12 BIA. (Dkt. 15 at R655-71).
13 On August 9, 2006, ICE served petitioner with a Notice to Alien of File Custody Review,
14 informing him that ICE would be reviewing his custody status on or about August 24, 2006, and
15 that he could submit any documentation he wished to be reviewed in support of his release prior
16 to that date. (Dkt. 15 at R337-38). Despite the fact that petitioner’s counsel had filed a Form G-
17 28 Notice of Entry of Appearance, ICE failed to notify petitioner’s counsel of the file custody
18 review, and petitioner submitted no evidence in support of his release. (Dkt. 16 at 5-6).
19 On October 23, 2006, the BIA denied petitioner’s motion to reopen. (Dkt. 15 at L311-
20 15). Petitioner then filed a Petition for Review of the BIA’s decision denying his motion to reopen
21 with the Ninth Circuit, which the Ninth Circuit consolidated with his direct appeal. See Doissaint
22 v. Mukasey, No. 06-75390. Petitioner’s consolidated appeals remain pending before the Ninth

PAGE -3
01 Circuit, after oral argument on May 7, 2008.
02 By letter dated November 7, 2006, ICE Field Office Director A. Neil Clark informed
03 petitioner that his custody review had been completed, and that ICE had determined he would
04 remain detained pending the result of his appeal before the Ninth Circuit. (Dkt. 15 at R352-53).
05 The letter further informed petitioner that his custody status would be reviewed again in
06 approximately one year. Id. On January 4, 2007, petitioner’s counsel submitted a release request
07 to ICE at the Northwest Detention Center in Tacoma, Washington. (Dkt. 15 at R825-27).
08 However, petitioner’s counsel never received a response from ICE. (Dkt. 15 at R836).
09 On August 21, 2007, ICE served petitioner with a second Notice to Alien of File Custody
10 Review, informing him that ICE would be reviewing his custody status on or about October 21,
11 2007, and that he could submit any documentation he wished to be reviewed in support of his
12 release prior to that date. (Dkt. 15 at R833). Again, ICE failed to notify petitioner’s counsel of
13 the file custody review. However, petitioner’s counsel learned of the custody review from
14 petitioner, and notified ICE on August 23, 2007, that he would be submitting evidence by the
15 October 21, 2007, deadline. (Dkt. 15 at R836). In addition, petitioner’s counsel requested an in-
16 person hearing pursuant to 8 C.F.R. § 241.4(i)(3), should petitioner not be released. Id. On
17 October 19, 2007, petitioner, through counsel, submitted evidence to ICE in support of his release
18 by overnight courier. (Dkt. 15 at R850-67).
19 However, ICE had conducted its custody review on October 15, 2007, prior to the date
20 listed on the Notice issued to petitioner. (Dkt. 15 at R845). The Post Order Custody Review
21 Worksheet indicates that petitioner did “not provide[] any documentary evidence for consideration
22 in this review.” (Dkt. 15 at R839). By letter dated October 22, 2007, ICE Field Office Director

PAGE -4
01 A. Neil Clark informed petitioner that ICE had completed his custody review, and that ICE had
02 determined that he would continue to be detained pending the result of his appeal before the Ninth
03 Circuit. (Dkt. 15 at R847). ICE did not conduct an in-person interview with petitioner pursuant
04 to 8 C.F.R. § 241.4(i)(3) as requested. On October 25, 2007, ICE served petitioner with a
05 “Decision to Continue Detention.” (Dkt. 15 at R868-70). The Decision states: “Two thorough
06 reviews of your file have been conducted. It has been determined that due to the violent nature
07 of your crimes you appear to be a danger to the community.” Id.
08 On April 15, 2008, petitioner, proceeding through counsel, filed the instant habeas petition,
09 Dkt. 4, challenging his continued detention. Respondents filed a motion to dismiss on June 2,
10 2008, Dkt. 12, and petitioner filed a cross-motion for summary judgment and response to motion
11 to dismiss, Dkt. 16, on June 23, 2008. Respondents’ motion to dismiss, Dkt. 12, and petitioner’s
12 cross-motion for summary judgment, Dkt. 16, are now ready for review.
13 III. DISCUSSION
14 A. Jurisdiction
15 Habeas corpus relief is appropriate when a person “is in custody in violation of the
16 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Habeas corpus
17 proceedings are available as a forum for statutory and constitutional challenges to the authority
18 of the Attorney General to order detention of a person, which is not a matter of discretion. See
19 Zadvydas v. Davis, 533 U.S. 678, 688, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001); Nadarajah
20 v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). The REAL ID Act of 2005, Pub. L. No. 109-
21 13, Div. B., 119 Stat. 231, does not divest the Court of jurisdiction over habeas petitions that do
22 not involve final orders of removal. Nadarajah, 443 F.3d at 1075. As petitioner is challenging

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01 his continued detention and not an order of removal, this Court has habeas corpus jurisdiction.
02 B. Detention
03 Section 236 of the INA provides the framework for the arrest, detention, and release of
04 aliens in removal proceedings. Once removal proceedings have been completed, the detention and
05 release of aliens shifts to INA § 241. The determination of when an alien becomes subject to
06 detention under Section 241 rather than Section 236 is governed by Section 241(a)(1). Section
07 241(a)(1)(B) provides:
08 The removal period begins on the latest of the following:
09 (i) The date the order of removal becomes administratively final.
10 (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.
11
(iii) If the alien is detained or confined (except under an immigration process), the date the
12 alien is released from detention or confinement.
13 8 U.S.C. § 1231(a)(1)(B)(emphasis added). Thus, pursuant to Section 241(a)(1)(B)(ii), where
14 a court issues a stay of removal pending its review of an administrative removal order, the alien
15 continues to be detained under Section 236 until the court renders its decision. See Ma v.
16 Ashcroft, 257 F.3d 1095, 1104 n.12 (9th Cir. 2001) (stating, “[i]f the removal order is stayed
17 pending judicial review, the ninety day period begins running after the reviewing court’s final
18 order.”); see also Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (ordering a bail hearing
19 where the alien had been detained pending appeal for two years and eight months under INA §
20 236(c)); Bromfield v. Mukasey, No. 07-72319, slip op. (9th Cir. Dec. 26, 2007) (“[T]his is a pre-
21 removal case, given that petitioner requested judicial review of the removal order . . . and this
22 court granted a stay of removal in that still pending petition for review. See 8 U.S.C. §

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01 1231(a)(1)(B)(ii).”).
02 Here, the Ninth Circuit has issued a stay pending its review of petitioner’s administrative
03 removal order. “Because Petitioner’s removal order has been stayed by the Ninth Circuit pending
04 its review of the BIA decision, the ‘removal period’ has not yet commenced, and Petitioner
05 therefore is detained pursuant to INA § 236.” Quezada-Bucio v. Ridge, 317 F. Supp 2d 1221,
06 1224 (W.D. Wash. 2006).1
07 Under BIA case law addressing general bond decisions, the BIA has stated that “an alien
08 generally . . . should not be detained or required to post bond except on a finding that he is a threat
09 to the national security . . . or that he is a poor bail risk.” See Matter of Patel, 15 I&N Dec. 666
10 (BIA 1976). Section 236(c), however, mandates detention during removal proceedings of aliens
11 who have been convicted of certain criminal offenses – including those convicted of an aggravated
12 felony. Section 236(c) provides:
13 (c) Detention of criminal aliens
14 (1) Custody
15 The Attorney General shall take into custody any alien who —
16 (A) is inadmissable by reason of having committed any offense covered in section

1182(a)(2) of this title,
17
(B) is deportable by reason of having committed any offense covered in section
18
19 1
Respondents argue that petitioner is detained under INA § 241 because he has a final
order of removal in place. (Dkt. 16 at 5-7). Respondents cite several cases in support of their
20 proposition. However, “[t]hese cases are either inapposite or offer analyses that this Court has
repudiated.” Rodriguez-Carabantes, No. C06-1517Z, 2007 WL 1268500 at 3-4 (rejecting
21 Glassia v. Coleman, No. C02-1222 (W.D. Wash. February 3, 2003) (Rothstein, J.); and De La
Teja v. U.S., 321 F.3d 1357 (11th Cir. 2003)). The Court concludes that the removal period has
22 not yet begun, and that petitioner is detained pursuant to INA § 236.

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01 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
02 (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for
which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or
03
(D) is inadmissable under section 1182(a)(3)(B) of this title or deportable under section
04 1227(a)(4)(B) of this title, when the alien is released . . .
05 INA § 236(c)(1), 8 U.S.C. § 1226(c)(1) (emphasis added). In this case, the IJ sustained the
06 charge of removability against petitioner under INA § 237(a)(2)(A)(iii), based on his conviction
07 of an aggravated felony. Thus, petitioner falls within the group of aliens described in INA §
08 236(c)(1)(B), for whom detention is mandatory.
09 Petitioner argues that his mandatory, indefinite detention for more than thirty-four months
10 is unlawful and contravenes INA § 236(c) as interpreted by the Supreme Court in Zadvydas v.
11 Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001), and by the Ninth Circuit in
12 Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), and Nadarajah, 443 F.3d at 1069. (Dkt. 16 at 5-
13 8). In addition, petitioner argues that ICE violated its own custody review regulations by failing
14 to send notice to petitioner’s counsel of either ICE’s 2006 or 2007 custody reviews, failing to
15 consider evidence timely submitted by petitioner, and failing to provide an in-person custody
16 review hearing under 8 C.F.R. § 241.4(i)(3)(i), (ii). (Dkt. 16 at 18-19). The Court agrees with
17 petitioner that his prolonged detention is unreasonable and no longer authorized by statute. In
18 addition, the Court agrees that petitioner’s procedural due process rights have been violated by
19 ICE’s failure to comply with its own custody review regulations.
20 In Demore v. Kim, 538 U.S. 510, 512, 123 S. Ct. 1708, 155 L. Ed. 2d 724 (2003), the
21 Supreme Court first considered a challenge to the no-bail provision of INA § 236(c). The
22 Supreme Court held that “Congress, justifiably concerned that deportable criminal aliens who are

PAGE -8
01 not detained continue to engage in crime and fail to appear for their removal hearings in large
02 numbers, may require that persons . . . be detained for the brief period necessary for their removal
03 proceedings.” Id. at 513. The Supreme Court found though “[i]t is well established that the Fifth
04 Amendment entitles aliens to due process of law in deportation proceedings,” it recognized
05 “detention during deportation proceedings as a constitutionally valid aspect of the deportation
06 process.” Id. at 523.
07 The Supreme Court also distinguished between pre-removal order detention (under INA
08 § 236(c)) and post-removal order detention (under INA § 241), discussed in Zadvydas. The
09 Supreme Court found pre-removal order detention materially different from post-removal order
10 detention, noting that “[w]hile the period of detention at issue in Zadvydas was ‘indefinite’ and
11 ‘potentially permanent,’ . . . the detention here is of a much shorter duration.” Id. at 528. “Under
12 § 1226(c), not only does detention have a definite termination point, in the majority of cases it
13 lasts for less than the 90 days we considered presumptively valid in Zadvydas.” Id. at 529. The
14 Supreme Court concluded that a brief detention under INA § 236(c) to complete removal
15 proceedings does not violate due process. Kim, 538 U.S. at 531. The Supreme Court did not
16 consider, however, whether an extended period of detention under INA § 236(c) would violate
17 due process.
18 In Tijani, the petitioner, detained pursuant to INA § 236(c), sought by habeas proceedings
19 to compel a bond hearing. Tijani, 430 F.3d at 1242. At the time of the Ninth Circuit’s decision,
20 Tijani had been detained for over two years and eight months pending removal proceedings.
21 Tijani, 430 F.3d at 1246 (Tashima, J., concurring) (noting that Tijani’s detention during his
22 administrative proceedings lasted twenty months, with one year of continued detention during

PAGE -9
01 judicial appeal).
02 In a brief (three paragraph) opinion, the Ninth Circuit stated that “it is constitutionally
03 doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident
04 aliens who are subject to removal.” Tijani, 430 F.3d at 1242. Nevertheless, to avoid deciding the
05 constitutional issue, the court construed § 236(c) as applying only in “expedited” removal
06 proceedings. Id. The Ninth Circuit concluded that “[t]wo years and eight months of process is
07 not expeditious,” and ordered an Immigration Judge to release the petitioner “unless the
08 government establishes that he is a flight risk or will be a danger to the community.” Id. In a
09 concurring opinion, Judge Tashima concluded that Tijani was entitled to be released from
10 detention pending the completion of his removal proceedings because the sheer length of his
11 detention “violates the Constitution now.” See id. at 1249 (Tashima, J., concurring) (citing
12 Zadvydas, 533 U.S. at 690; Demore v. Kim, 538 U.S. 510, 527, 123 S. Ct. 1708, 155 L. Ed. 2d
13 724 (2003).
14 Applying the law to the facts of this case, the Court concludes that a writ of habeas corpus
15 should issue because the length of petitioner’s detention – more than thirty-four months – is
16 unreasonable and no longer authorized by the statute. Petitioner’s prolonged detention pending
17 removal proceedings has exceeded the period of detention envisioned by the Supreme Court in
18 Demore and the Ninth Circuit in Tijani, and petitioner is entitled to a bond hearing before an
19 Immigration Judge.2
20
2
Petitioner also argues that he is entitled to release under the Ninth Circuit’s decision in
21 Nadarajah. In Nadarajah, the Ninth Circuit addressed the legality of prolonged detention under
the general immigration detention statutes, INA § 235(b)(1)(B)(ii) and INA § 235(b)(2)(A).
22 Nadarajah, 443 F.3d at 1069. In that case, the Immigration Judge had already granted the

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01 The government attempts to distinguish Tijani, arguing that petitioner’s removal
02 proceedings were expeditious and completed within the first ten months of his confinement. (Dkt.
03 12 at 11). The government also contends that it has done nothing to delay or prolong the removal
04 process.
05 The Court disagrees with respondents. Petitioner’s removal proceedings lasted more than
06 three times the ninety-day norm discussed by the Supreme Court in Demore. Moreover,
07 petitioner’s detention for more than thirty-four months has already lasted longer than Tijani’s
08 twenty-two month detention, and proceedings before the Ninth Circuit are expected to take
09 another year. Thirty-four months of process is not expeditious. See Tijani, 430 F.3d at 1242
10 (holding that INA § 236(c) applies only in expedited removal proceedings). While continued
11 detention may be justified where a petitioner’s extended detention is caused by dilatory tactics,
12 here respondents have set forth no argument that petitioner’s appeals have been frivolous.
13 “Petitioner should not be effectively punished by pursuing applicable legal remedies.” Lawson v.
14
petitioner deferral of removal under the CAT (which was unchallenged), and asylum (which had
15 been affirmed by the BIA). Thus, there was no evidence in the record that Nadarajah could be
removed from the United States. Despite having prevailed on his application for relief at every
16 administrative level, Nadarajah had been detained for five years pending a determination of
removability. Relying on the Supreme Court’s analysis in Zadvydas, the Ninth Circuit observed
17 that “the general immigration detention statutes do not authorize the Attorney General to
incarcerate detainees for an indefinite period.” Id. at 1078 (citing Zadvydas, 533 U.S. at 678).
18 The Ninth Circuit held that detention must be “for a reasonable period, and only if there is a
significant likelihood of removal in the reasonably foreseeable future.” Id. at 1079. The Court
19 concluded that the petitioner should be released because he had “established that there is no
significant likelihood of removal,” and because detention of nearly five years is “plainly
20 unreasonable under any measure.” Id. at 1080.
In the present case, by contrast, the IJ found petitioner removable and ineligible for relief
21 from removal, and the BIA affirmed that decision. Furthermore, unlike Nadarajah, the
government has done nothing to delay or prolong the removal process. Accordingly, Nadarajah
22 does not support petitioner’s claim for release.

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01 Gerlinski, 332 F. Supp. 2d 735, 746 (M.D. Pa. 2004).
02 The government also asserts that petitioner was afforded due process during both of his
03 custody reviews, stating that “[o]n both occasions he had the opportunity to present evidence in
04 support of his release, which was reviewed and ultimately rejected.” (Dkt. 17 at 4 n.1). Contrary
05 to the government’s assertions, petitioner did not receive adequate due process during either of
06 his custody reviews conducted by ICE in 2006 and 2007. As indicated above, ICE failed to
07 comply with its own regulations by failing to notify petitioner’s counsel of either ICE’s 2006 or
08 2007 custody reviews, failing to consider evidence timely submitted by petitioner, and failing to
09 provide petitioner with an in-person hearing.
10 Prior to a File Custody Review, the local District Director must provide written notice to
11 the detainee, so that the alien may submit information in support of his release. See 8 C.F.R. §
12 241.4(h)(1-2). By regulation, counsel must be served with any notice served on a detainee. See
13 8 C.F.R. §§ 292.5, 241.4(d)(3), (h)(1), (2). Here, despite the fact that petitioner’s counsel
14 submitted a G-28 notice of appearance, no notice of either the 2006 or 2007 custody review was
15 served on petitioner’s counsel.
16 However, petitioner’s counsel learned of the 2007 custody review from petitioner, and
17 notified ICE on August 23, 2007, that he would be submitting evidence by the October 21, 2007,
18 deadline. (Dkt. 15 at R836). In addition, petitioner’s counsel requested an in-person hearing
19 pursuant to 8 C.F.R. § 241.4(i)(3), should petitioner not be released. Id. On October 19, 2007,
20 petitioner, through counsel, submitted evidence to ICE in support of his release by overnight
21 courier. (Dkt. 15 at R850-67).
22 However, ICE had conducted its custody review on October 15, 2007, prior to the date

PAGE -12
01 listed on the Notice issued to petitioner. (Dkt. 15 at R845). The Post Order Custody Review
02 Worksheet indicates that petitioner did “not provide[] any documentary evidence for consideration
03 in this review.” (Dkt. 15 at R839). By letter dated October 22, 2007, ICE Field Office Director
04 A. Neil Clark informed petitioner that ICE had completed his custody review, and that ICE had
05 determined that he would continue to be detained pending the result of his appeal before the Ninth
06 Circuit. (Dkt. 15 at R847). ICE did not conduct an in-person interview with petitioner pursuant
07 to 8 C.F.R. § 241.4(i)(3) as requested.
08 The regulations provide that, if after an initial review, a detainee is not recommended for
09 release, a “Review Panel shall personally interview the detainee . . . who may be accompanied
10 during the interview by a person of his or her choice.” 8 C.F.R. § 241.4(i)(3)(i), (ii). Pursuant
11 to these regulations, petitioner’s counsel requested an in person hearing should petitioner not be
12 released. (Dkt. 15 at R836). Although petitioner was denied released and petitioner’s counsel had
13 requested an in-person hearing, ICE failed to provide an in-person hearing.
14 “The Fifth Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any
15 ‘person . . . of liberty . . . without due process of law.’” Zadvydas v. Davis, 533 U.S. 678, 690,
16 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001). It is well established that “the Due Process Clause
17 applies to all ‘persons’ within the United States, including aliens, whether their presence here is
18 lawful, unlawful, temporary, or permanent.” Id. at 693. Here, however, the record indicates that
19 ICE failed to adhere to its custody review procedures by making a decision regarding petitioner’s
20 custody status without notifying petitioner’s counsel or reviewing documentation submitted by
21 petitioner in support of his release. The Court finds that such review does not comport with due
22 process, as it was not implemented in a procedurally fair manner. ICE cannot constitutionally

PAGE -13
01 continue to detain petitioner without complying with the procedures laid out in the regulations.
02 Because petitioner has not received proper review of his eligibility for release on bond, the Court
03 finds that he is entitled to a bond hearing before an Immigration Judge.3
04 IV. CONCLUSION
05 For the foregoing reasons, I recommend that petitioner’s habeas petition and cross-motion
06 for summary judgment be granted, and that respondents’ motion to dismiss be denied. A proposed
07 Order accompanies this Report and Recommendation.
08 DATED this 25th day of July, 2008.
A
09
10 Mary Alice Theiler

United States Magistrate Judge
11
12
13
14
15
16
17
18 3
Respondents argue that the Immigration Court lacks jurisdiction to conduct a bond
hearing. (Dkt. 17 at 3). This Court has previously stated that “a court may order the Immigration
19 Court to hold a bond hearing if the court determines that such a hearing is statutorily or
constitutionally required. Morisath v. Smith, 988 F. Supp. 1333, 1340-41 (W.D. Wash. 1997).”
20 Felix v. Wilson, Case No. C02-2330L, Dkt. 34 at 2 (W.D. Wash. 2003). Moreover, this argument
has been repudiated by the Ninth Circuit. See Bromfield v. Mukasey, No. 07-72319 (9th Cir. Dec.
21 26, 2007) (holding that the IJ had jurisdiction to enter a bond decision and the BIA had
jurisdiction over the appeal of that bond decision because this was a pre-removal case given that
22 petitioner requested judicial review of the removal order and the Ninth Circuit had granted a stay).

PAGE -14
Page 1
56 of 62 DOCUMENTS
VOLSAINT DOISSAINT, Petitioner, v. MICHAEL CHERTOFF, et al.,

Respondents.
CASE NO. C08-0584-MJP
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

WASHINGTON
2008 U.S. Dist. LEXIS 66571
August 26, 2008, Decided

August 26, 2008, Filed
COUNSEL: [*1] For Volsaint Doissaint, Petitioner: Judge (Dkt. No. 20), Respondents' objections to the
Christopher Strawn, LEAD ATTORNEY, Report and Recommendation [*2] (Dkt. No. 21),
NORTHWEST IMMIGRANT RIGHTS PROJECT Petitioner's response to those objections (Dkt. No. 22),
(SEA), SEATTLE, WA. and the remaining record, does hereby find and ORDER:
For Michael Chertoff, Secretary of the United States (1) The Court adopts the Report and
Department of Homeland Security, Department of Recommendation;
Homeland Security, Michael Mukasey, Attorney General
of the United States, A. Neil Clark, Director of Detention (2) Petitioner's Petition for Writ of Habeas Corpus
and Removal Seattle District Office, Immigration and (Dkt. 4) and Cross-Motion for Summary Judgment (Dkt.
Customs Enforcement, U.S. Immigration and Customs 16) are GRANTED, and Respondents' Motion to Dismiss
Enforcement, George Wigen, the Geo Group Inc., (Dkt. 12) is DENIED;
Warden of the Northwest Detention Center, Warden of
(3) This matter is REMANDED to the Seattle
the Northwest Immigration Detention Center, The United
Immigration Court for the purpose of providing petitioner
States of America, Respondents: Patricia D Gugin, US
with an individualized bond hearing within 20 days of the
ATTORNEY'S OFFICE (TACOMA), TACOMA, WA.
date of this Order. The Immigration Judge is to
JUDGES: MARSHA J. PECHMAN, United States determine whether and under what conditions petitioner
District Judge. may be released from custody pending petitioner's
Petition for Review in the Ninth Circuit Court of
OPINION BY: MARSHA J. PECHMAN Appeals; and
(4) The Clerk shall send a copy of this Order to the

OPINION
parties, and to the Honorable Mary Alice Theiler.
ORDER GRANTING PETITION FOR WRIT OF
DATED this 26 day of August, 2008.
HABEAS CORPUS
/s/ Marsha J. Pechman
The Court, having reviewed petitioner's Petition for
Writ of Habeas Corpus, respondents' Motion to Dismiss, MARSHA J. PECHMAN
petitioner's Cross-Motion for Summary Judgement, all
papers and exhibits in support and in opposition to those United States District Judge
pleadings, the Report and Recommendation of the
Honorable Mary Alice Theiler, United States Magistrate

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Case 2:08-cv-00584-MJP Document 20 Filed 07/25/2008 Page 1 of 14

06 UNITED STATES DISTRICT COURT

08 VOLSAINT DOISSAINT, ) CASE NO. C08-0584-MJP

14 I. INTRODUCTION AND SUMMARY CONCLUSION

REPORT AND RECOMMENDATION

03 motion to dismiss (Dkt. 12) be DENIED.

04 II. BACKGROUND AND PROCEDURAL HISTORY

12 163.175, and was sentenced to seventy months incarceration. (Dkt. 15 at L116-20).

15 convicted of an aggravated felony as defined in INA § 101(a)(43)(F), relating to a crime of

REPORT AND RECOMMENDATION

12 BIA. (Dkt. 15 at R655-71).

REPORT AND RECOMMENDATION

01 Circuit, after oral argument on May 7, 2008.

07 to ICE at the Northwest Detention Center in Tacoma, Washington. (Dkt. 15 at R825-27).

18 by overnight courier. (Dkt. 15 at R850-67).

REPORT AND RECOMMENDATION

07 of your crimes you appear to be a danger to the community.” Id.

REPORT AND RECOMMENDATION

08 The removal period begins on the latest of the following:

09 (i) The date the order of removal becomes administratively final.

13 8 U.S.C. § 1231(a)(1)(B)(emphasis added). Thus, pursuant to Section 241(a)(1)(B)(ii), where

REPORT AND RECOMMENDATION

06 1224 (W.D. Wash. 2006).1

12 felony. Section 236(c) provides:

13 (c) Detention of criminal aliens

16 (A) is inadmissable by reason of having committed any offense covered in section

REPORT AND RECOMMENDATION

01 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

08 236(c)(1)(B), for whom detention is mandatory.

19 ICE’s failure to comply with its own custody review regulations.

REPORT AND RECOMMENDATION

04 Amendment entitles aliens to due process of law in deportation proceedings,” it recognized

05 “detention during deportation proceedings as a constitutionally valid aspect of the deportation

06 process.” Id. at 523.

REPORT AND RECOMMENDATION

REPORT AND RECOMMENDATION

01 The government attempts to distinguish Tijani, arguing that petitioner’s removal

REPORT AND RECOMMENDATION

01 Gerlinski, 332 F. Supp. 2d 735, 746 (M.D. Pa. 2004).

09 provide petitioner with an in-person hearing.

15 served on petitioner’s counsel.

18 deadline. (Dkt. 15 at R836). In addition, petitioner’s counsel requested an in-person hearing

21 courier. (Dkt. 15 at R850-67).

REPORT AND RECOMMENDATION

07 to 8 C.F.R. § 241.4(i)(3) as requested.

13 requested an in-person hearing, ICE failed to provide an in-person hearing.

20 custody status without notifying petitioner’s counsel or reviewing documentation submitted by

REPORT AND RECOMMENDATION

03 finds that he is entitled to a bond hearing before an Immigration Judge.3

07 Order accompanies this Report and Recommendation.

08 DATED this 25th day of July, 2008.

10 Mary Alice Theiler

REPORT AND RECOMMENDATION

VOLSAINT DOISSAINT, Petitioner, v. MICHAEL CHERTOFF, et al.,

CASE NO. C08-0584-MJP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF

2008 U.S. Dist. LEXIS 66571

August 26, 2008, Decided

(4) The Clerk shall send a copy of this Order to the

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