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Jose Luis Tapia-Fierro v. Eric Holder

January 23, 2012

JOSE LUIS TAPIA-FIERRO PETITIONER,
v.
ERIC HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, AND JANET NAPOLITANO, SECRETARY OF UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ROBIN F. BAKER, FIELD OFFICE DIRECTOR, GABRIELA PACHECO, ASSISTANT FIELD OFFICE DIRECTOR, JOHNNY WILLIAMS, ASSISTANT FIELD OFFICE DIRECTOR RESPONDENTS.



The opinion of the court was delivered by: Hon. Manuel L. Real United States District Judge

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

TABLE OF CONTENTS

I. UNCONTROVERTED FACTS ....................................................................1

II. CONCLUSIONS OF LAW............................................................................2

I.UNCONTROVERTED FACTS

1. In March 2007, Petitioner Jose Luis Tapia-Fierro was taken into immigration custody, where he remained until October 2011. (Sept. 26, 2011 Order Granting Motion for Preliminary Injunction, Dkt. No. 25 at 2.)

2. On January 5, 2011, this Court held that Mr. Tapia-Fierro was "erroneously deported" in 2001 and ordered that his 2001 removal proceedings be reopened so that he would have thirty days from any subsequently issued removal order to appeal that order. By operation of law, Mr. Tapia-Fierro's immigration status was restored to the status he held at the time of his 2001 removal proceeding: that of an admitted lawful permanent resident ("LPR"). (Id. at 1.)

3. On January 11, 2011, the government nevertheless lodged inadmissibility charges against Mr. Tapia-Fierro under section 212 of the Immigration and Nationality Act ("INA"). On February 16, 2011, the Immigration Judge presiding over Mr. Tapia-Fierro's reopened 2001 removal proceedings (1) dismissed the remaining aggravated felony charge in Mr. TapiaFierro's 2001 removal proceeding; (2) determined that Mr. Tapia-Fierro could not be subject to inadmissibility charges under section 212 of the INA because he was an admitted LPR; and (3) permitted the government two weeks to assert deportability charges under section 237 of the INA instead. (Id. at 1.)

4. On March 17, 2011, after being informed that the government had elected not to proceed on section 237 charges, the Immigration Judge (1) terminated Mr. Tapia-Fierro's 2001 removal proceedings; and (2) after conducting a bond hearing pursuant to Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999), ordered his release upon the posting of $1,500 bond, concluding that the government had failed to demonstrate by clear and convincing evidence that he is a danger to the community or flight risk. (Id. at 1.)

5. The government subsequently appealed the Immigration Judge's bond order and merits decision to the Board of Immigration Appeals ("BIA"). On June 22, 2011, a panel of the BIA reversed the Immigration Judge's bond order, holding that the Immigration Judge had no authority to change the status of Mr. Tapia-Fierro from that of an "arriving alien" to that of an admitted LPR. (Id. at 1-2.)

6. Thereafter, on August 3, 2011, a different panel of the BIA denied the government's appeal of the Immigration Judge's March 17 order on the merits, and affirmed the Immigration Judge's decision to dismiss section 212 charges against Mr. Tapia-Fierro, holding that Mr. Tapia-Fierro is an admitted LPR who is not subject to inadmissibility charges. (Id. at 2.)

7. On September 26, 2011, this Court granted Mr. Tapia-Fierro's motion for preliminary injunction and ordered his release from custody, concluding that (1) Mr. Tapia-Fierro's detention of fifty-four months constituted "prolonged detention;" (2) that section 236(c) of the Immigration and Nationality Act, under which the government purported to detain Mr. Tapia-Fierro, did not permit such prolonged detention; (3) that prolonged detention without adequate procedural protections violated the Due Process Clause of the Constitution; and

(4) that the government was not likely to succeed in showing that Mr. TapiaFierro's continued detention was justified even if it has asserted INA ...


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