9th Cir issues significant decision re extended detention
Saturday, 26 July 2008
Prieto-Romero v. Clark (9th Cir. 7/25/08)
FISHER Farris MSmith
This case considered prolonged detention pending a CtApp appeal, where a stay of removal was entered. The CtApp found that it couldn't be mandatory, but that continued detention was in fact authorized - and CtApp couldn't review the amt of IJ bond.
(a) that prolonged detention is not authorized by 1231(a) or 1226(c), so that 1226(a) is the appropriate statute for analysis;
(b) that where removal is possible to the person's country (in this case, Mexico), that prolonged detention is not unauthorized by the statute, as in Zadvydas or Ly v. Hansen (distinguishing Nadarajah, which involved a possible AG certification, as unique)
(c) declined to address whether Govt has burden of proof as to flight risk and dangerousness, because here the IJ set a bond (implicitly finding him not to be a flight risk);
(d) found no jurisdiction over the claim that the bond amt was excessive - jurisdiction stripped by 1226(e).
1. 1226(a) is the only authority for extended detention - not 1231(a) or 1226(c) (rejects Chevron deference to passing BIA reference, finding the statute clear)
Because § 1231(a) authorizes detention only “[d]uring the removal period,” § 1231(a)(2), and “beyond the removal period,” § 1231(a)(6), it clearly does not provide any authority before the removal period. Therefore, the plain language of § 1231(a) provides no authority to detain aliens such as Prieto-Romero whose removal order is administratively — but not judicially — final. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003); Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).
* * *
Rather than functioning as an independent source of detention authority, § 1231(a)(1)(C) merely authorizes the government to continue detaining an alien “[d]uring the removal period.” See § 1231(a)(2). Consequently, § 1231(a)(1)(C) cannot be invoked to justify the detention of an alien whose removal period has not yet begun. Moreover, we are highly skeptical about the government’s suggestion that an alien’s attempt to seek judicial relief from deportation constitutes “conspir[ing] or act[ing] to prevent [his] removal.” See § 1231(a)(1)(C).
2. 1226(a) does not forbid extended detention (except in the Nadarajah situation)
Prieto-Romero argues that Zadvydas squarely controls his case, because Congress could not have authorized his three-year detention under any immigration statute. We partly agree: that an alien is being held under § 1226(a), and not § 1231(a)(6), does not render Zadvydas inapplicable. Zadvydas held that § 1231(a)(6) did not contain any clear “indication of congressional intent to grant the Attorney General the power” to indefinitely detain. Id. at 697. It would be incongruous for us to conclude, in the absence of clear evidence, that Congress intended other detention statutes to authorize the indefinite detention of aliens, where such detention would clearly pose the same constitutional concerns. Therefore, without clear congressional direction to the contrary, we conclude that § 1226(a), like § 1231(a)(6), also does not authorize indefinite detention. * * *
We nonetheless reject Prieto-Romero’s bid for habeas relief because, as the government forcefully argues, Prieto- Romero’s detention continues to be authorized by § 1226(a), even as interpreted to avoid the constitutional problem of indefinite detention recognized by Zadvydas. Although his removal has certainly been delayed by his pursuit of judicial review of his administratively final removal order, he is not stuck in a “removable-but-unremovable limbo,” as the petitioners in Zadvydas were. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 347 (2005). Here there is no evidence that Prieto-Romero is unremovable because the destination country will not accept him or his removal is barred by our own laws. Cf. Zadvydas, 533 U.S. at 697. To the contrary, the government introduced evidence showing that repatriations to Prieto-Romero’s country of origin, Mexico, are routine and that the government stands ready to remove Prieto-Romero as soon as judicial review is complete.
* * *
Prieto-Romero foreseeably remains capable of being removed — even if it has not yet finally been determined that he should be removed — and so the government retains an interest in “assuring [his] presence at removal.” See Zadvydas, 533 U.S. at 699. His continued detention, while lengthy, is not indefinite. It remains authorized by § 1226(a) because it is consistent with the implicit limitation that Zadvydas requires us to read into the Attorney General’s statutory detention authority. Other circuits have come to the same conclusion. See Lawrence v. Gonzales, 446 F.3d 221, 227 (1st Cir. 2006) (holding alien’s prolonged post-removal detention “was necessary to bring about [his] removal” when it “occurred pursuant to his own procuring of stays incident to his legal challenges”); Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004) (holding alien’s detention during judicial review not indefinite because it has a “definite and evidently impending termination point”); cf. Ly v. Hansen, 351 F.3d 263, 265 n.1 & 271 (6th Cir. 2003) (holding alien’s detention unreasonable where there was “no chance of actual, final removal” because his home country, Vietnam, “has not and does not accept deportees because there is no repatriation agreement”). We therefore hold that § 1226(a) permits Prieto- Romero’s continuing detention while he pursues judicial review of his administratively final order of removal.
3. Did not resolve whether Govt should have borne burden of proof as to flight risk and dangerousness, finding that the IJ's act of setting bond showed that he concluded that there wasn't a flight risk - so that the issue was moot.
Prieto-Romero contends that Tijani requires all aliens to receive bond hearings where the government bears the burden of establishing ineligibility for release. We need not resolve the issue because Prieto-Romero cannot demonstrate prejudice. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994) (holding that due process violations in immigration proceedings are susceptible to harmless error analysis). * * *
Prieto-Romero, unlike Tijani, has already received an individualized determination of the governmental interest in his continued detention by a neutral decisionmaker.11 In setting bond at $15,000 at Prieto-Romero’s third bond hearing, the IJ necessarily found — even with the burden of proof on the alien — that Prieto-Romero did not present a flight risk or a danger to the community, and thus merited release from custody. Prieto-Romero is not entitled to habeas relief, because he cannot show that the alleged due process violation adversely affected the IJ’s determination that he was eligible for bond.
4. Found jurisdiction stripped by 1226(e) to consider whether the bond was excessive.
Atty: Matt Adams, NWIRP, Judy Rabinowitz, Nancy Morawetz, etc. - see also, Casas-Castrillon.
