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March 1, 2004.

JAVIER ZAVALA, Petitioner,
TOM RIDGE, in his official capacity, Secretary Department of Homeland Security; JOHN ASHCROFT, in his official capacity, Attorney General, Department of Justice, Respondents

The opinion of the court was delivered by: JEFFREY WHITE, District Judge

Now before the Court is the petition for writ of habeas corpus by Petitioner Javier Zavala. Petitioner asserts that he is currently being detained in violation of the Due Process Clause of the United States Constitution by virtue of the automatic stay of his bail redetermination pursuant to 8 C.F.R. § 1003.19(i)(2). Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Petition is HEREBY GRANTED and the automatic stay dissolved effective March 8, 2004 at 5:00 p.m. This brief stay of this Order for one week will afford the Government an opportunity to seek an emergency stay from the Board of Immigration Appeals ("Board") under 8 C.F.R. § 1003.19(i)(1) of the bond redetermination ordered by Immigration Judge ("IJ") Lamonte S. Freerks dated November 21, 2003. If no emergency stay is obtained by the Government by March 8, 2004 at 5:00 p.m., Petitioner must be permitted to post bond and be released in accordance with IJ Freerk's decision and order. Page 2


  The background facts are not significantly disputed. Petitioner is a native and citizen of Mexico. He has lived in the United States since 1980, and has been a lawful permanent resident since December 1, 1990. His wife is also a lawful permanent resident. They live in Santa Cruz, California. On January 19, 1994, Petitioner was convicted in California Superior Court for the County of Sonoma of committing a lewd act on a child, in violation of California Penal Code § 288a(b)(1). He was sentenced to six months in the county jail and two years probation. He has had no other arrests or convictions.

  Petitioner was placed into removal proceedings on April 24, 2003, after his return from a trip abroad. He was charged with being removable under 8 U.S.C. § 1182(a)(2)(A)(i)(1), for having been convicted of a crime of moral turpitude. An IJ terminated the removal proceeding on October 15, 2003, on the ground that Petitioner's conviction fell within the "petty offense exception" to 8 U.S.C. § 1182(a)(2)(A)(ii)(II) as a single offense for which he was not sentenced more than six months.

  Petitioner was then placed into new removal proceedings on November 12, 2003. He was charged with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) (sexual abuse of a minor). Petitioner was taken into custody by the Bureau of Immigration and Customs Enforcement ("BICE" or "the Service") in San Francisco, California. Initially, the deportation officer in San Francisco. set a bond of $25,000. Immediately thereafter, Petitioner was transferred to Florence, Arizona. During transit, Petitioner's family was informed that it was not possible to post bond, as no officers had access to Petitioner's immigration file. Upon Petitioner's arrival at the detention facility in Florence, Arizona, on November 14, 2003, the deportation unit there changed the bond determination, revoking the $25,000 bond and determined to hold Petitioner without bond during the pendency of his removal proceedings.

  On November 14, 2003, Petitioner filed a request for bond redetermination with the IJ and his bond hearing was held on November 21, 2003, before IJ Freerks, in Florence, Arizona. In conducting the hearing, the IJ considered all written documents presented by both Petitioner and the BICE, as well as their testimony and provided an opportunity for cross-examination. Upon making a Page 3 determination that Petitioner was not a danger to the community or a significant flight risk, the IJ ordered that Petitioner be released from BICE custody on a $5,000 bond.

  On November 21, 2003, the BICE filed a Form EOIR-43, or Notice of Intent to Appeal Custody Redetermination, which automatically stayed the IJ's custody decision pursuant to 8 C.F.R. § 1003.19(i)(2) while the BICE appeals the IJ's decision to the Board and the Board rules on the Government's appeal.

  On December 5, 2003, the BICE filed a Notice of Appeal to the Board. Upon receipt of the appeal, the Board issued a briefing schedule, pursuant to which the parties were directed to file briefs in support of their positions over the propriety of the IJ's custody decision by February 13, 2004. On February 2, 2004, the Board received a motion from the Government for additional time to brief the issue. The Board granted the motion for a continuance, permitting the Government to file its brief by no later than March 5, 2004.

  Petitioner remains in BICE custody and in removal proceedings. On December 9, 2003, at the Master Calendar removal hearing, Petitioner requested a change of venue. He was subsequently transferred from Florence, Arizona to Oakland, California. On January 16, 2004, Petitioner filed this petition for writ of habeas corpus alleging that the applicable regulation invoked by the BICE for an automatic stay of the IJ's bond decision violates both his substantive and procedural due process rights under the Fifth Amendment and that the regulation is ultra vires because it exceeds the authority bestowed upon the BICE by Congress under 8 U.S.C. § 1226(a).


  A. Legal Background

  The custodial status of aliens who have committed crimes is governed by 8 U.S.C. § 1226. Section (a) provides that the Attorney General has discretion to arrest and detain an alien pending the removal decision and discretion to release the alien on bond. An alien may seek a bond redetermination hearing of the Attorney General's custody determination before an IJ. 8 C.F. R. § 236.1(d)(1). Section (c), however, is mandatory and requires that the Attorney General detain certain classes of aliens during the pendency of their removal proceedings, including aliens who have been convicted of an aggravated felony. 8 U.S.C. § 1226(c)(1); § 1227(a)(2)(A)(iii). Section 1226(c) Page 4 applies only prospectively, and therefore does not affect criminal aliens who were released from incarceration prior to the effective date of the law, October 9, 1998. See Matter of Adenjii, 22 I. & N. Dec. 1102 (BIA 1999). Because Petitioner was released from incarceration prior to October 9, 1998, he is subject only to the discretionary provisions of § 1226(a).

  Prior to the effective date of 8 C.F.R. § 1003.19(i)(2), aliens detained pursuant to the Attorney General's discretion under 8 U.S.C. § 1226(a) who were granted release on bond by an immigration judge could only remain in detention if the Service secured an emergency stay of the bond determination from the Board under 8 C.F.R. § 1003.19(i)(1). The new challenged regulation, which was implemented on an emergency basis and without public comment and made effective on October 31, 2001, amends the regulations by "expanding the regulatory provision for a temporary stay of an immigration judge's decision to order an alien's release in any case in which a district director has ordered that the alien be held without bond or has set a bond for $10,000 or more, to maintain the status quo while the Immigration and Naturalization Service seeks expedited review of the custody order by the Board of Immigration Appeals (Board) or by the Attorney General." Executive Office for Immigration Review; Review of Custody Determinations, 66 Fed. Reg. 54909 (Oct. 31, 2001).

  The automatic stay is invoked by virtue of the Service filing a Notice of Service of Intent to Appeal Custody Redetermination (a Form EOIR-43) with the immigration court within one business day of the issuance of the immigration judge's order. The individualized determination by the immigration judge remains in abeyance pending decision by the Board and possible further review by the Attorney General. 8 C.F.R. § 1003.19(i)(2). Although there is no mandatory time frame set by the regulation for final determination of custody, the Executive Office commentary indicates that the custody appeal proceedings are supposed to be conducted on an "expedited basis." 66 Fed. Reg. 54909 (Oct. 31, 2001). The Service must file its appeal within ten business days of the immigration judge's order and, after completion of the appellate briefing, the Board must rule within 90 days if before a single judge, and 180 days if before a three-judge panel, with a priority for cases or custody appeals involving detained aliens. See id.; 8 C.F.R. § 1003.1(e)(8)(i). If there is an "impending decision by the United State Supreme Court or a United States Court of Appeals, or impending Department regulatory amendments, or an impending en banc Board decision may substantially Page 5 determine the outcome of a case or a group of cases pending before the Board," a decision may be stayed. 8 C.F.R. § 1003.1 (e)(8)(iii). Lastly, if the Board ...

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