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Kiniti v. Gonzales


June 6, 2008


The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge


Now pending before this Court is Petitioner Isaac Kigondu Kiniti's ("Petitioner"), a prisoner held by the Department of Homeland Security, Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2241. [Doc. No. 1.] Petitioner's Petition challenges his removal proceedings and detention pending removal proceedings. The Petition has been fully briefed by the parties. After a careful consideration of the pleadings and the relevant exhibits submitted, and for the reasons set forth below, this Court DENIES the Petition in its entirety.


Petitioner is a Kenyan citizen who came to the United States as a student in 1998. (See Pet. at 5.) On May 10, 2004, Petitioner was taken into custody by the Department of Homeland Security ("DHS") based on his conviction for possession of a controlled substance for sale, and removal proceedings were initiated. (See id. at 7.) On July 13, 2004, Petitioner appeared before an immigration judge ("IJ") and petitioned for a withholding of removal. (See id. at 8.) The IJ denied Petitioner's request, holding that his controlled substance conviction was a "particularly serious crime" that rendered Petitioner ineligible for withholding of removal. (See id. Ex. A at 2.)

Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Petitioner argued that the IJ acted improperly by conducting independent research regarding Petitioner's family and by threatening Petitioner. See id. Petitioner also asserted that the IJ erred in finding that Petitioner's controlled substance conviction was a "particularly serious crime." (See id. Ex. A at 3.) The BIA held that even if Petitioner's crime was not considered a "particularly serious crime," Petitioner failed to meet his burden of proof of establishing eligibility for withholding of removal.*fn1 (See id. at 4.) Ultimately, the BIA affirmed the IJ's decision to remove Petitioner. (See id.)

On January 25, 2005, Petitioner petitioned for review by the Ninth Circuit and obtained a stay of removal. (See Pet'r Pet., Kiniti v. Gonzales, No. 05cv70411 (9th Cir. Jan. 25, 2005).) On January 24, 2006, Respondent filed a motion with the Ninth Circuit requesting that the case be remanded back to the BIA and held in abeyance. (See Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Jan. 24, 2006).) The Ninth Circuit denied Respondent's motion on May 23, 2006. (See Order Deny. Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. May 23, 2006).

Petitioner remained in custody during these proceedings. DHS conducted custody reviews on April 10, 2005, August 21, 2006, and July 12, 2007. (See id. at 13, Ex. L at 1-3.)

At these hearings, DHS determined that Petitioner should remain detained pending his petition for review because he was both a flight risk and a danger to the community. (See id.)

On July 17, 2006, Respondent requested and obtained from the Ninth Circuit an extension for filing his opposition to Petitioner's Petition for Review. (See Resp't Mot. for Ext. of Time to File, Kiniti v. Gonzales, No. 05-70411 (9th Cir. July 17, 2006).) Respondent again filed a Motion to Remand the case to the BIA on August 21, 2006. (See Resp't Mot. for Remand to BIA, Kiniti v. Gonzales, No. 05-704211 (9th Cir. Aug. 21, 2006).) Petitioner filed an Opposition to Respondent's Motion on September 1, 2006, alleging that any further delay was prejudicial to him, and that remanding the case to the BIA would be improper since the government did not demonstrate that it intended to produce any new evidence. (See id. Ex. G at 4-7.) The Ninth Circuit denied Respondent's Motion on December 1, 2006, and ordered that Respondent file his opposition by February 2, 2007. (See Order Deny. Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Dec. 1, 2006).)

On February 21, 2007, Petitioner filed a "Motion to Expedite"*fn2 in the Ninth Circuit. (See Pet. Ex. H). The Ninth Circuit denied the Motion, and ordered Respondent's Opposition Brief due by March 28, 2007. (See Order Den. Pet. Mot. Expedite, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Mar. 26, 2007).) On March 28, 2007, Respondent filed an Opposition brief. On June 1, 2007, Petitioner filed a reply brief. As of this date, Petitioner's case is still pending review by the Ninth Circuit.

Legal Standard

I. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241

A federal court has jurisdiction to review a habeas petition brought by a person "held in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2241(c)(3). While this statute allows a person in custody to file a habeas petition if he alleges that such custody violates the Constitution or federal law, habeas petitions challenging "purely discretionary (yet arguable unwise) decisions made by the executive branch that do not involve violations of the Constitution or federal law" are impermissible. Gutierrez-Chavez v. INS, 298 F. 3d 824, 827 (9th Cir. 2002).

In the context of immigration, the scope of habeas jurisdiction is "limited to claims that allege constitutional or statutory error in the removal process." Sing v. Ashcroft, 351 F. 3d 435, 439 (9th Cir. 2003) (citing Gutierrez-Chavez, 298 F. 3d at 829-30). Discretionary decisions made by the Attorney General are generally unreviewable. See 8 U.S.C. § 1226(e). Section 1226(e) states:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

8 U.S.C. § 1226(e). Accordingly, if the decision in question was an exercise of the Attorney General's discretionary judgment, a district court does not retain jurisdiction to review the issue.


Petitioner raises the following arguments in his Petition: (1) Petitioner must be afforded an individualized hearing to determine whether his ongoing detention is justified; (2) the length of Petitioner's custody is unreasonable and he should be released pursuant to the Ninth Circuit's decision in Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006); and (3) the procedures used in determining whether Petitioner should be released pending his appeal violate his right to due process. For the reasons set forth below, this Court DENIES the Petition.

I. Petitioner's Request for an Individualized Hearing

Petitioner specifically requests that this Court order a hearing before an IJ at which the government must demonstrate that Petitioner's detention pending Ninth Circuit review is justified. (See id. at 32.) However, the decision to detain Petitioner pending Ninth Circuit review was a discretionary decision made by the Attorney General, and thus this Court does not have jurisdiction to decide the merits of Petitioner's claim.

The authority of DHS to detain an alien pending judicial review is set forth in 8 U.S.C. 1226(a), which provides in pertinent part:

(a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection

(c) of this section [mandatory detention] and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on--

(A) bond of at least $1,500...

8 U.S.C. § 1226(a) (emphasis added). Petitioner cites to Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), and Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006), for the proposition that immigration detention without a meaningful custody hearing is not permissible. (See Pet. at 33.) However, as Respondent correctly noted, both Tijani and Nadarajah concern the duration of mandatory detention pending administrative removal proceedings pursuant to section 1226(c). (Gov't Return Brief at 4.) Section 1226(c) mandates detention during removal proceedings for a limited class of deportable aliens. See 8 U.S.C. § 1226(c); Demore v. Kim, 538 U.S. 517-18 (2003). Because of aggravated felony conviction, Petitioner's detention was mandated while he awaited an administrative decision by the BIA. See 8 U.S.C. § 1226(c). However, after the BIA issued its opinion, Petitioner's detention was no longer mandatory. Because Petitioner's detention pending judicial review was based on the Attorney General's discretionary function pursuant to section 1226(a) and not section 1226(c), Petitioner's reliance on Nadarajah and Tijani is misplaced. Section 1226(e) divests this Court of jurisdiction to review the merits of the BIA's decision. See 8 U.S.C. § 1226. To the extent that Petitioner seeks a new hearing to replace the decision of the BIA, his claim fails. This Court DENIES this claim of the Petition.

II. Petitioner's Claim that His Custody Violates Due Process

Petitioner alleges that, regardless of what procedures were employed, the sheer length of his detention violates due process. (See Pet. at 35.) Petitioner also claims that his detention is unconstitutional because it is prolonged and indefinite, and removal is not likely in the reasonably foreseeable future. (See id. at 15.)

A. Nadarajah and Zadvydas are Inapplicable to Petitioner's Case

Petitioner argues that no statute authorizes his continued detention. (See id. at 16.) Petitioner points to the six-month presumptively reasonable limit on detention pending removal proceedings established by Zadvydas v. Davis, 533 U.S. 678 (2001), and Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006). (See id.) However, the six-month presumption applies only to detention pending administrative removal proceedings. See Nadarajah, 443 F.3d at 1080. The specific proceeding at issue in Nadarjah was under the discretionary review of the Attorney General. See id. Nadarajah and Zadvydas make no mention of a reasonable length of detention pending judicial review, nor can the Court locate any authority addressing detention pending judicial review. Because the detention Petitioner challenges occurred after the conclusion of the administrative removal proceedings, the six-month presumption of reasonableness is inapplicable.*fn3

B. Petitioner is Unable to Prove that there is No Significant Likelihood of His Removal in the Reasonably Foreseeable Future

Petitioner also argues that he should be released pending Ninth Circuit review because his removal is not likely to occur in the reasonably foreseeable future. (See Pet. at 16.) However, the standard articulated in Zadvydas for demonstrating that removal is unlikely is used to prove that a detention longer than the presumptively reasonable six-month period is unlawful. See Zadvydas, 533 U.S. at 701. As noted above, the six-month presumption is inapplicable in Petitioner's case because he is being detained pending judicial review, rather than administrative review. Petitioner's reliance on Zadvydas is therefore misplaced.

Even if the above standard applied to Petitioner's detention, Petitioner's claim would still fail. The decision as to whether Petitioner will be removed has a definitive endpoint since review of Petitioner's case is already pending in the Ninth Circuit. Nevertheless, Petitioner argues that it is unlikely that he will be removed to Kenya, noting that Kenyan authorities have refused to issue a travel document to him without an adverse decision from the Ninth Circuit. (See Pet. at 27.) Petitioner's custody review by DHS, however, states that all that is needed upon adverse decision by the Ninth Circuit are passport-sized photographs, a $50 money order, a Fed Ex return envelope, and travel documents from the Kenyan government that are "readily available." (Pet. at Ex. L.3-4.) Because removal is likely if the Ninth Circuit issues an adverse decision, and because review is currently pending in the Ninth Circuit, Petitioner is unable to prove that there is no significant likelihood of his removal in the reasonably foreseeable future.

The remainder of Petitioner's detention following the BIA's decision is not due to any delay in the administrative removal process, but to Petitioner's pending Ninth Circuit review. Petitioner assigns fault to the government for the delay in the Ninth Circuit. (See Pet. at 36-37.) While this delay is unfortunate, there is no remedy available to Petitioner from this Court. Petitioner has already raised the issue of delay with the Ninth Circuit in his briefing papers, and the Ninth Circuit has ruled accordingly. (See Pet. Ex. C at 3-4; Ex. E at 6-7; Ex G at 9-10; Ex. H at 2.) In furtherance of judicial economy, this Court cannot review decisions made by the Ninth Circuit.

Because this Court can only consider Petitioner's detention pending administrative removal proceedings, and because Petitioner is unable to prove that there is no significant likelihood of removal in the reasonably foreseeable future, Petitioner's claim that the duration of his detention violates due process fails. The Court DENIES this claim of the Petition.

III. Petitioner's Claim for a Violation of Procedural Due Process

Petitioner additionally claims that the procedures used in determining whether he should be released pending Ninth Circuit review violate his right to procedural due process. (See Pet. at 29.) Specifically, Petitioner points to the potential for bias in the decision-making process, and actual bias in his case, through the behavior of both the deportation officer and the IJ. (See id.) While section 1226(e) strips this Court of jurisdiction to review purely discretionary decisions, it does not divest this Court of jurisdiction to hear claims that "[the agency] somehow failed to exercise discretion in accordance with federal law or did so in an unconstitutional manner." Gutierrez-Chavez, 298 F.3d at 829. A petitioner's allegation of a violation of the Constitution or federal statute in a section 2241 habeas petition should not be denied review simply because the case involves a discretionary determination. See id. Consequently, Petitioner's claim that the discretionary process was constitutionally flawed fits comfortably within the scope of section 2241. See id.

Petitioner has, however, raised this issue in his appeal to the Ninth Circuit. (See Kiniti v. Gonzales, No. 05-70411, 2007 WL 1374767 at *8 (9th Cir. Mar. 28, 2007).) For reasons of judicial economy, "'[a] district court should not entertain a habeas corpus petition while there is an appeal pending in [the appellate court] or in the Supreme Court.'" United States v. Pirro, 104 F.3d 297, 300 (9th Cir. 1997) (quoting United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991). While Pirro, involved a petitioner bringing a section 2241 petition to the district court in lieu of properly bringing a 2255 petition, the reasoning still applies. If this Court granted Petitioner review of this claim, Petitioner would simultaneously obtain review in both this Court and the Ninth Circuit. "This result would eviscerate our goal of judicial economy by engaging the attention of two courts on the same case at the same time." Id. As such, this Court DECLINES review of Petitioner's bias claim, pending Ninth Circuit review.


Petitioner's claims are either without merit or are not appropriate for review by this Court. For the reasons set forth above, this Court DENIES Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.


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