Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 1 of 9 The Hon. James P. Donohue Chief Magistrate Judge 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 Daniel Ramirez Medina, 10 11 Petitioner, v. 12 13 14 15 16 17 Case No. 2:17-cv-00218-RSM-JPD BRIEF RE: COURT’S FEBRUARY 14, 2017, ORDER DIRECTING SERVICE, SETTING STATUS CONFERENCE, AND SETTING BRIEFING SCHEDULE U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN KELLY, Secretary of Homeland Security; NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs Enforcement; and Warden of Northwest Detention Center, Respondents. 18 19 20 21 22 23 24 25 26 27 28 Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 2 of 9 Respondents hereby respond to the questions contained in the Court’s February 14, 2017, 1 2 Order Directing Service, Setting Status Conference, and Setting Briefing Schedule. 3 a. Is petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program? 4 5 Petitioner is still detained. Petitioner’s detention is authorized by 8 U.S.C. § 1226(a).1 6 “The Attorney General may issue a warrant of arrest concurrently with the notice to appear,” 7 which is what happened here. Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008), 8 citing 8 U.S.C. § 1226(a); 8 C.F.R. § 236.1(a); Exhibit A, Notice to Appear. Moreover, 9 Petitioner’s Deferred Action as a Childhood Arrival automatically terminated upon ICE issuing 10 him a Notice to Appear (“NTA”) at immigration removal proceedings. See Exhibit B, DACA 11 Notice of Action; U.S. Citizenship and Immigration Services (“USCIS”), Frequently Asked 12 Questions re: Consideration of Deferred Action for Childhood Arrivals Process (updated Oct. 27, 13 2015) at Q27, available at https://www.uscis.gov/humanitarian/ consideration-deferred-action- 14 childhood-arrivals-process/frequently-asked-questions (last visited February 15, 2017).2 The 15 instructions to the application advise of this possibility. See U.S. Citizenship and Immigration 16 Services, Instructions for Consideration of Deferred Action for Childhood Arrivals, Form I- 17 821D, available at https://www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf (last 18 visited Feb. 16, 2017) (“Deferred action is a discretionary determination to defer removal of an 19 individual as an act of prosecutorial discretion. Individuals who receive deferred action will not 20 be placed into removal proceedings or removed from the United States for a specified period of 21 time, unless the Department of Homeland Security (DHS) chooses to terminate the deferral.”) 22 23 The attached Form I-213, Record of Deportable/Inadmissible Alien, indicates the following that may be responsive to the Court’s questions: 24 25 26 27 28 Petitioner was encountered by officers from U.S. Immigration and Customs Enforcement (“ICE”) while executing a warrant regarding Petitioner’s father. See Exhibit C, Form I-213 1 “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.” 8 U.S.C. § 1226(a). Section 1226 goes on to explain the procedures by which ICE may determine whether continued detention or release on bond or conditional parole is appropriate. Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -1- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 3 of 9 1 Record of Deportable/Inadmissible Alien, at 2. Petitioner’s father indicated that his adult sons 2 were here “illegally,” and gave ICE officers permission to enter his apartment. See id. at 3. 3 When questioned by ICE officers, Petitioner answered that he was born in Mexico and answered 4 “yes” to the question whether he was “illegally” in the United States. See id. In addition, when 5 asked whether he had ever been arrested, Petitioner answered “yes.” See id. 6 Petitioner was then transported to an ICE holding facility in Tukwila, Washington. See 7 id. Upon further interview by an ICE officer, Petitioner stated “[n]o, not no more,” when asked 8 if he is or has been involved with any gang activity. Id. Petitioner was then questioned further 9 regarding a “gang tattoo” on his forearm, to which he responded that he “used to hang out with 10 the Sureno’s in California,” that he “fled California to escape from the gangs,” and that he “still 11 hangs out with the Paizas in Washington State.” Id. ICE then determined Petitioner “to have 12 entered the United States without inspection, at an unknown location on an unknown date. In 13 doing so, he is in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as 14 amended.” Id. 15 Upon transfer to the Northwest Detention Center in Tacoma, Washington, Petitioner was 16 issued a Notice to Appear that charged him as removable from the United States under 8 U.S.C. 17 § 1182(a)(6)(A)(i), as “an alien present in the United States without being admitted or paroled, or 18 who arrived in the United States at any time or place other than as designated by the Attorney 19 General.” See Exh. A. Petitioner’s Deferred Action as a Childhood Arrival was automatically 20 21 2 22 USCIS’s DACA FAQ states : 23 Q27: Can my deferred action under the DACA process be terminated before it expires? 24 A27: Yes. DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. 25 26 27 28 In addition, the Supreme Court has addressed the definition of deferred action and availability of challenges to it. Specifically, deferred action is the exercise of discretion to not act to (1) commence removal proceedings; (2) adjudicate cases or (3) execute removal orders. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483 (1999) (discussing in the context of 8 U.S.C. § 1252(g)). Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -2- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 4 of 9 1 terminated as of the date ICE issued his NTA. See Exh. B. A Notice of Action from U.S. 2 Citizenship and Immigration Services informing Petitioner of the termination has been generated 3 and will be issued on February 17, 2017. See id. 4 b. Has petitioner been placed in removal proceedings? What was the result of ICE’s initial custody determination? Has petitioner requested a bond hearing before an Immigration Judge? When is any bond hearing scheduled to occur? 5 6 7 8 9 10 11 12 ICE has placed Petitioner in removal proceedings pursuant the ICE’s above-referenced issuance of an NTA to Petitioner. See Exh. A; 8 U.S.C. § 1229(a) (titled “Initiation of Removal Proceedings” and discussing requirements for NTA). ICE’s initial custody determination was “no bond.” See Exhibit D, Custody Determination; 8 C.F.R. § 236.1(g). Upon information and belief, Petitioner has not yet requested a bond hearing before an Immigration Judge, and accordingly, no bond hearing is scheduled. Upon information and belief, a master calendar hearing has been scheduled. 13 14 // 15 // 16 // 17 // 18 19 // 20 // 21 // 22 // 23 // 24 25 // 26 27 28 Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -3- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 5 of 9 1 2 c. Does the Court have the authority to order an Immigration Judge and the Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an expedited basis? 3 There is no legal basis for a district court to consider any challenge to Petitioner’s 4 detention at this time both because Petitioner, upon information and belief, has failed to exhaust 5 his administrative remedies with respect to his detention and because his habeas petition affords 6 him no relief in mandamus. 7 First, 8 U.S.C. § 1226(a) governs the detention and release of most aliens arrested inside 8 the United States. 8 U.S.C. § 1226(a). ICE considers each alien individually for release on 9 bond. 8 C.F.R. § 236.1(c)(8). If the ICE officer denies bond (or sets a bond the alien thinks is 10 too high), the alien may ask an immigration judge (“IJ”) for a redetermination of the custody 11 decision. 8 C.F.R. §§ 236.1(d)(1), 1003.19, 1236.1(d)(1); see Leonardo v. Crawford, 646 F.3d 12 1157, 1160 (9th Cir. 2011) (explaining the review process); Prieto-Romero, 534 F.3d at 1059 13 (same). If the alien is dissatisfied with the IJ’s bond determination, they may file an 14 administrative appeal so that the necessity of bond may be reviewed by the Board of 15 Immigration Appeals (“BIA”). 8 C.F.R. §§ 236.1(d)(3)(i), 1236(d)(3)(i); see Leonardo, 646 F.3d 16 at 116. If the alien remains dissatisfied, the alien may file a petition for habeas corpus in the 17 district court, followed by appeal to circuit court. See Leonardo, 646 F.3d at 116. An alien who 18 remains detained under 8 U.S.C. § 1226(a) may later obtain another custody determination 19 whenever circumstances have changed materially since the prior bond determination. 8 C.F.R. 20 § 1003.19(e). 21 Aliens are not permitted to “short cut” this process by asking the federal district court to 22 review an IJ’s bond determination without having first appealed to the BIA. See Leonardo, 646 23 F.3d at 116; see generally, Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (“Federal 24 prisoners are required to exhaust their federal administrative remedies prior to brining a petition 25 for a writ of habeas corpus in federal court”). Here, it appears that Petitioner has not yet sought a 26 bond hearing. 27 Second, Petitioner’s habeas petition provides him no relief in mandamus. See ECF Dkt. 28 1, Petition at 4 ¶ 1 (citing the Mandamus Act, 8 U.S.C. § 1346, as a source of jurisdiction). The Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -4- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 6 of 9 1 remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Kerr v. 2 U.S. Dist. Court of the Northern Dist. of Ca., 426 U.S. 394, 402 (1976). In order to ensure that it 3 is only invoked in such situations, the party seeking issuance must have no other adequate means 4 to attain the relief he desires. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). As 5 discussed, here, Petitioner has adequate means to attain the relief he seeks through a bond 6 hearing and in the course of his immigration proceedings. Further, while the Ninth Circuit has 7 required immigration judges to hold bond hearings at a time-certain in cases of allegedly 8 prolonged immigration detention, see, e.g., Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) 9 (cert. granted, pending decision), those circumstances are not implicated where: Petitioner is 10 seeking a district court to order his release and he has been detained pending removal 11 proceedings for less than one week; and, as stated above, he has failed to exhaust his claims in 12 the appropriate forum. See Leonardo, 646 F.3d at 116. 13 15 d. If petitioner is still detained and removal proceedings have not been initiated against him, what is the basis for ICE’s authority to detain him? What limitations are there, if any on the Court’s ability to hold a detention hearing for petitioner before the merits of his habeas petition have been decided? 16 Petitioner is currently in removal proceedings and these proceedings are not subject to 14 17 judicial review in district court. The NTA was dated February 10, 2017, and ICE filed it with the 18 immigration court on February 14, 2017. See Exh. A. Thus, removal proceedings have been 19 commenced. 20 In light of this fact, there are critical limitations on the Court’s ability to grant Petitioner 21 any relief at this this time. There is no reason to hold a detention hearing before the merits of 22 Petitioner’s habeas petitions have been decided. First, as noted above, Petitioner has 23 administrative remedies he must first exhaust. Second, this Court lacks jurisdiction over this 24 action. The U.S. Court of Appeals for the Ninth Circuit has explained that 8 U.S.C. 25 § 1252(a)(5), entitled “Exclusive means of review,” prescribes the vehicle for judicial review: 26 “[A] petition for review ... shall be the sole and exclusive means for judicial review of an order 27 of removal . . . .” See J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016). It further 28 explained that “[l]est there be any question about the scope of judicial review,” § 1252(b)(9) Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -5- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 7 of 9 1 mandates that “[j]udicial review of all questions of law and fact, including interpretation and 2 application of constitutional and statutory provisions, arising from any action taken or 3 proceeding brought to remove an alien from the United States . . . shall be available only in 4 judicial review of a final order . . . .” See id. 5 Taken together, these two provisions “mean that any issue—whether legal or factual— 6 arising from any removal-related activity can be reviewed only through the PFR [Petition for 7 Review] process.” See id. (emphasis original). As a result, “[w]hen a claim by an alien, 8 however it is framed, challenges the procedure and substance of an agency determination that is 9 ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” Id. at 1032 10 citing Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (applying this principle in the 11 context of a claim brought under the Administrative Procedure Act); cf. Estrada v. Holder, 604 12 F.3d 402, 408 (7th Cir. 2010) (district court lacked jurisdiction because if the alien obtained the 13 relief he sought the “order of removal entered by the IJ and affirmed by the BIA . . . would 14 necessarily be flawed”). In addition, 8 U.S.C. § 1252(g) precludes judicial review over any 15 claim “arising from the decision or action . . . to commence proceedings, adjudicate cases, or 16 execute removal orders . . . .” See Sissoko v. Rocha, 509 F.3d 947, 949, 951 (9th Cir. 2007) 17 (concluding that detention arose from decision to commence expedited removal proceedings) cf. 18 Reno, 525 U.S. at 483 (interpreting this statutory provision). 19 Third, to the extent that Petitioner is seeking immediate release on a preliminary 20 injunction, this request is inconsistent with the framework of habeas proceedings. See, e.g., 21 Bader v. Coplan, No. 02-cv-508, 2003 WL 163171, at *3 (D.N.H. Jan. 23, 2003) (finding habeas 22 petitioner’s request for release under preliminary injunction “inconsistent with the overall 23 framework” of habeas proceedings and adjudicating motion for immediate release as request for 24 bail). A preliminary injunction is an extraordinary remedy. Winter v. Natural Res. Def. Counsel, 25 Inc., 555 U.S. 7, 24 (2008) (setting forth the traditional standard for a preliminary injunction). 26 And it is particularly disfavored in situations, such as here, where the Petitioner is not only 27 seeking relief that goes beyond maintaining the status quo, Garcia v. Google, Inc., 786 F.3d 733, 28 740 (9th Cir. 2015); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -6- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 8 of 9 1 879 (9th Cir. 2009), but is also seeking a grant of the ultimate relief at issue. See Tom Doherty 2 Assoc. v. Saban Entertainment, Inc., 60 F.3d, 27, 34 (2d Cir. 1995); Fundamentalist Church of 3 Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). 4 It is true that in other contexts, courts have released habeas petitioners on bail pending 5 determination of their petitions only in extraordinary cases presenting either “special 6 circumstances or a high probability of success.” Land v. Deeds, 878 F.2d 318, 319 (9th Cir. 7 1989); see also, In re Roe, 257 F.3d 1077, 1080-81 (9th Cir. 2001) (clarifying that courts will 8 grant bail pending disposition of a habeas petition only if the petitioner has raised both a 9 substantial claim for relief in the petition and extraordinary circumstances that require bail for 10 the habeas remedy to be effective). But these cases involve challenges under 28 U.S.C. § 2254 11 and are not applicable to the present case which involves a challenge to detention itself rather 12 than a challenge to an underlying criminal conviction 13 DATED: February 16, 2017 14 15 16 17 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 616-1246 Fax: (202) 305-7000 Email: jeffrey.robins@usdoj.gov WILLIAM C. PEACHEY Director 18 19 20 21 22 Attorneys for Respondents 23 24 25 26 27 28 Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -7- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246 Case 2:17-cv-00218-RSM-JPD Document 32 Filed 02/16/17 Page 9 of 9 CERTIFICATE OF SERVICE 1 2 3 4 I HEREBY CERTIFY that on February 16, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document should automatically be served this day on all counsel of record via transmission of Notices of 5 6 Electronic Filing generated by CM/ECF. /s/ Jeffrey S. Robins Jeffrey S. Robins Assistant Director U.S. Department of Justice 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brief re: Court’s February 14, 2017, Order Case No. 2:17-cv-00218-RSM-JPD -8- U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 616-1246