The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS DATED OCTOBER 30, 2008 (Doc. 16) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner, currently in the custody of the Bureau of Immigration and Customs Enforcement ("ICE"), through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The petition was originally filed in the Sacramento Division of this Court on June 18, 2007, and transferred to the Fresno Division on June 29, 2007. (Docs. 1, 5). At the time of filing of the petition, Petitioner was being detained at the Lerdo Detention Facility, Bakersfield, California, which lies within the jurisdiction of this Court. (Id. at p. 2).
Petitioner, a native of India, attempted to enter the United States on September 25, 2000. (Id. at p. 3). After an interview with authorities, Petitioner was paroled in October 2000, but later served with a Notice to Appear and placed in removal proceedings. (Id. at p. 5). After Petitioner's parole was revoked and he was returned to ICE custody, Petitioner applied for asylum, but the Immigration Judge denied his application, finding Petitioner was not credible. (Id. at p. 6). Petitioner ultimately appealed the final order of removal to the United States Court of Appeals for the Ninth Circuit and that appeal has been pending in the Ninth Circuit since December 27, 2006. (Id. at p. 8). In conjunction with Petitioner's Petition for Review, the Ninth Circuit granted a stay of removal until the appeals court resolved the case. (Id.).
ICE notified Petitioner in January 2007 that it was conducting a custody review of Petitioner. (Id. at p. 8). On February 5, 2007, ICE denied release for Petitioner. (Id. at p. 10). The letter sent to Petitioner informing him of ICE's decision indicated that the government of India "has issued a travel document for [Petitioner's] return to that country. Your removal has been delayed solely through your filing of a Petition for Review with the US Court of Appeals for the Ninth Circuit, and the resulting automatic stay of removal." (Doc. 9, Exh. A). Petitioner was advised that he "must demonstrate that you are making reasonable efforts to comply with the order of removal, and that you are cooperating with ICE's efforts to remove you by taking whatever actions ICE requests to effect your removal." (Id.). The decision also indicated that, while Petitioner did not have a criminal record nor did he "present a danger to the community," he nevertheless posed a flight risk based on his attempt to illegally enter the United States smuggled in the trunk of a car. (Id. at p. 10).
Petitioner filed the instant petition alleging two claims for relief: (1) that Petitioner's continued detention by Respondent violates 8 U.S.C. § 1226 because there has "been no showing that the Petitioner is subject to mandatory detention and there has been no determination, under standard bond principles as elucidated by the Board of Immigration Appeals, that the Petitioner should not be released on a reasonable bond"; and (2) that the Court should extend the principles of Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001) to detentions under § 1226 and determine whether Petitioner's lengthy detention violates his due process rights. (Doc. 1, pp. 17--20). Petitioner requests relief in the form of an order issuing from this Court to require Respondent to "immediately schedule the Petitioner for an individualized custody redetermination hearing." (Doc. 1, p. 20).
On August 17, 2007, Respondent filed a response to the petition. (Doc. 9).*fn1 On December 20, 2007, Petitioner filed his traverse. (Doc. 13). On February 14, 2008, Petitioner filed a supplement to his legal arguments, appending several additional documents. (Doc. 14). On October 30, 2008, the Court issued findings and recommendations requiring that Respondent permit Petitioner to have a bond hearing before the appropriate Immigration Judge within sixty days. (Doc. 16). In the findings and recommendations, the Court rejected Respondent's argument that Petitioner was properly detained under 8 U.S.C. § 1231(a)(1)(B), concluding instead that Petitioner was actually being held pursuant to 8 U.S.C. § 1226. Relying on the Ninth Circuit's then-recent decisions in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), the Court concluded that detention pursuant to § 1226 was discretionary and that Respondent was obligated to provide Petitioner with the opportunity to appear before an Immigration Judge to determine whether he could be released on bond. (Id.). The findings and recommendations provided that any objections should be filed within fifteen days, or by November 17, 2008.
On November 19, 2008, two days after the expiration of the objection period but before the District Judge had adopted the Magistrate Judge's findings and recommendations, Respondent filed objections in which Respondent, for the first time, argued that Petitioner was being held as an "arriving alien" and that the Immigration Judge lacked authority to conduct a bond hearing to redetermine the custody status of that individual. (Doc. 18, p. 4). Respondent also informed the Court that a bond hearing had been held on November 18, 2008, but that the Immigration Judge had refused to proceed with the hearing upon the judge's determination that Petitioner was an arriving alien. (Id.).
On December 9, 2008, the Court ordered Petitioner's counsel to file a brief responding to Respondent's argument that Petitioner was an arriving alien. (Doc. 19). On December 22, 2008, Petitioner, not his counsel, filed a brief that made two points: (1) neither Prieto-Romero nor Casas-Castrillon contained any mention of "arriving aliens," and (2) the Immigration Judge did not adjourn the hearing because he had classified Petitioner as an arriving alien but because the findings and recommendations of the Court had not been adopted by the District Judge and thus were not final. (Doc. 20).
On December 29, 2008, Respondent filed a reply to Petitioner's response in which Respondent provided the Court, for the first time, with documents pertaining to Petitioner's original detention by authorities in 2000, including a transcript of the interview with Petitioner the day after his apprehension at the United States-Mexico border, and, again for the first time, argued that because Petitioner was an arriving alien, he was not entitled to a bond hearing. (Doc. 21).
A. Issues Raised In The Petition
Both parties agree that, normally, once a final order of removal has been issued, during the subsequent 90-day removal period, an alien's detention is mandatory pursuant to 8 U.S.C. § 1231(a)(2). (Doc. 9, p. 3; Doc. 1, p. 10). Subsequently, the federal government has discretion to detain an alien while arranging his removal, but such discretionary detention is subject to a six-month presumptive reasonableness rule enunciated by the U.S. Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2505 (2001).
However, this is the only issue on which the parties agree. In the original Response, Respondent contended that Petitioner's detention is authorized pursuant to 8 U.S.C. § 1231(a)(1)(B)(i),*fn2 which confers on Respondent the discretion to extend detention when the alien has acted to prevent his own removal. (Doc. 9, p. 3). Petitioner, on the other hand, contended that he was under the discretionary detention of Respondent pursuant to 8 U.S.C. § 1226(a),*fn3 but that Respondent hds violated that statute by refusing to conduct a bond hearing.
(Doc. 1, p. 17). Petitioner contended that no basis exists for Petitioner's continued detention, that the manner of his arrival in the United States did not logically support a conclusion that he posed a flight risk, and that it was fundamentally unfair, as well as a due process violation, to effectively penalize him, through continued detention, for his decision to commence judicial review of his final order of removal. (Doc. 1, pp. 18-19; Doc. 13, p. 2). Petitioner also contended that the "reasonableness" standards of Zadvydas should apply to discretionary detentions pursuant to § 1226. (Doc. 1, p. 19). Petitioner requested, inter alia, that this Court order Respondent "to immediately schedule the Petitioner for an individualized custody redetermination hearing...." (Id. at p. 20).
B. Issues Raised In The Objections To Findings And Recommendations Filed On October 30, 2008
Subsequent to the issuance of the findings and recommendations on October 30, 2008, Respondent took an entirely new tack by arguing that Petitioner could not legally receive a bond hearing because he was an "arriving alien," supporting that contention with evidence that the Immigration Judge had adjourned the bond hearing on November 18, 2008 precisely because the judge had determined that he lacked jurisdiction to proceed because of Petitioner's status as an arriving alien. (Doc. 18). Petitioner, on the other hand, contends that the Court was correct in construing § 1226 to be the source of Petitioner's detention and in relying on Casas-Castrillon and Prieto-Romero to require a bond hearing. (Doc. 20). Petitioner notes that neither Ninth Circuit case mentions arriving aliens and that the only reason the Immigration Judge adjourned the bond hearing was to await the adopting of the Court's findings and recommendations before making a bond determination. In a reply to Petitioner's response, Respondent provided documents that indicate Petitioner has indeed been classified as an arriving alien upon his initial detention in 2000.
For the reasons set forth below, the Court finds that Petitioner is an arriving alien and that federal law excepts arriving aliens from the authority of Immigration Judges to conduct bond hearings. Accordingly, the Court orders the withdrawal of the October 30, 2008 findings and recommendations and issues herein these new findings and recommendations recommending denial of the petition.
C. Petitioner Is An Arriving Alien
1. Factual Context Of Petitioner's Initial Detention
In Respondent's reply in support of objections to findings and recommendations, Respondent, for the first time, has provided documents detailing Petitioner's initial detention by Respondent. The documents establish the following chronology.
On September 25, 2000, Petitioner was detained by U.S. authorities at the San Ysidro, California border crossing from Tijuana, Mexico. (Doc. 21, p. 4). The following day, an immigration officer conducted an interview with ...