FINDINGS AND RECOMMENDATIONS
Petitioner is in the custody of the Secretary of the Department of Homeland Security and the Attorney General of the United States and their employees and agents. He has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims that he is being unlawfully detained as a result of U.S. Immigration and Customs Enforcement's (ICE) misapplication of the provisions of 8 U.S.C. §§ 1226 and 1231. Respondents' motion to dismiss is before the court.
Petitioner is a legal resident alien. He has been in the custody of respondents since June 2, 2006. In February 2007, the federal government obtained a final order of removal against him. See Pet. at 3. He has appealed that order, and the Ninth Circuit has issued a stay of his removal while his appeal of the final removal order is pending. Id.
Petitioner filed his application for a writ of habeas corpus in February 2008, alleging his continued detention is unlawful under 8 U.S.C. §§ 1226 and 1231 and demanding that he be given a conditional release on bond until the Ninth Circuit decides his appeal, or in the alternative, that the court order a hearing before an Immigration Judge (IJ) to evaluate petitioner's eligibility for supervision under appropriate conditions. See Pet. at 9. Petitioner does not seek any relief that would affect the final order of removal that is now before the Ninth Circuit. If he did, this court would not have jurisdiction to rule on his petition. 8 U.S.C. § 1252(b)(9). However, this court does have jurisdiction to hear legal challenges that are collateral to a final order of removal, such as those levied by an alien against the Attorney General's detention authority through a petition for writ of habeas corpus. See Nadarajah v. Gonzalez, 443 F.3d 1069, 1075 (9th Cir. 2006). The court therefore has jurisdiction to rule on the instant petition.
On July 25, 2008, approximately five months after this petition was filed, the Ninth Circuit handed down its opinion in Casas-Castrillon v. Dep't. of Homeland Security, 535 F.3d 942 (9th Cir. 2008). Casas-Castrillon concerned a § 2241 petition similar to this one. The petitioner there was an alien with a final order of removal pending on appeal before the Ninth Circuit. As is the case here, the petition in Casas-Castrillon did not challenge the order of removal; rather, it sought a hearing to contest the necessity of the alien's continued detention while he awaited the outcome of his appeal of the order of removal. The Ninth Circuit found that once an alien's removal proceedings before the Board of Immigration Appeals (BIA) were complete, the Attorney General's authority to hold the alien is no longer mandatory under 8 U.S.C. § 1226(c). Instead, detention is discretionary under 8 U.S.C. § 1226(a). See CasasCastrillon, 535 F.3d at 948. The court held that under § 1226(a), "prolonged detention of aliens is permissible only where the Attorney General finds such detention individually necessary by providing the alien with an adequate opportunity to contest the necessity of his detention." Id. at 951. An individual hearing on the alien's dangerousness or flight risk is therefore required to justify continued custody. "[A]n alien is entitled to release on bond unless the 'government establishes that he is a flight risk or will be a danger to the community.'" Id.
Petitioner in this case received a hearing before an IJ, as provided by CasasCastrillon, on November 19, 2008, some nine months after he filed this petition. See Mot. at 1. The IJ denied bond, finding petitioner to be a danger to the community. Id. Respondents then moved to dismiss the petition, arguing that the hearing before the IJ -- a remedy the petition demands as an alternative form of relief -- renders the entire petition moot. Id. Petitioner responded that his petition should not be dismissed because the hearing before the IJ did not meet the requirements of due process. He gave three bases for his due process argument: (1) the IJ improperly shifted the burden of proof from the government to petitioner; (2) the government should have been held to a "clear and convincing" standard of proof; and (3) the IJ did not make an adequate record of the bond hearing. See Opp'n at10.
When the court heard the motion to dismiss on February 25, 2009, petitioner's appeal of the IJ's decision was pending before the BIA. The government argued that, due to the pending appeal, petitioner had not administratively exhausted the due process challenges to the IJ hearing and that therefore habeas review under § 2241 was not yet appropriate. See Reply at 1. After considering the question, the court stayed this case until the petitioner's appeal before the BIA was complete. See Stay Order (docket no. 23). On June 8, 2009, the BIA rendered its decision, finding that the IJ "erred in placing the burden of proof on [petitioner] to demonstrate that he does not pose a danger to the community or a risk of flight." BIA Decision at 2.*fn1
However, the BIA agreed with the IJ that petitioner presents a danger to the community and upheld the denial of bond on that basis.
In supplemental briefing ordered by the court, the government now concedes that "[petitioner] has exhausted administrative remedies and the petition challenging the adequacy of the administrative process is properly before this Court." Resp'ts' Supp. Brief at 2. The government still argues the petition should be dismissed because (1) the bond hearing satisfied the requirements of due process, (2) any due process error at the hearing was harmless, and
(3) the court does not have jurisdiction to review the factual bases or discretionary aspects of the IJ's and BIA's rulings. Petitioner reasserts his position that the IJ violated his right to due process by (1) shifting the burden of showing he is not a danger to the community onto him, (2) applying the wrong standard of proof, and (3) failing to make an adequate record of the hearing.
With the exception of a few case cites, the government no longer frames its argument as one of mootness. In addressing petitioner's due process challenges, however, the thrust of the government's argument for dismissal is the same. As the court stated in staying this case, "the mere occurrence of the hearing before the IJ in November 2008 does not moot this petition. A bond hearing... must also have some requirements of due process; this petition is moot only if the IJ's hearing met them." Stay Order at 6. Therefore the question of whether the court should grant the petition based on a due process violation in the bond hearing, or find no such violation and dismiss the petition as moot, is now squarely before the court.
A. The Zadvydas Due Process Lineage
"[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The fact that an alien has a removal order pending against him does not strip him of his constitutionally protected interest in liberty. See id. at 693-94, 696. Zadvydas concerned a different factual scenario than here -- namely, the potentially permanent detention of an alien the government was unable to remove -- but the Ninth Circuit has "applied the Zadvydas framework to determine when prolonged discretionary detention*fn2 is authorized...." Rodriguez v. Hayes, ___ F.3d ___, 2009 WL 2526622 at *4 (9th Cir. 2009). Addressing the petition of an alien who had been detained for over two years and eight months, the Ninth Circuit has invoked Zadvydas for the proposition that "it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal." Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005).*fn3 In Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), the Ninth Circuit relied on Zadvydas in stating that even when detention is authorized by statute, as it is in this case, "due process requires 'adequate procedural protections' ...