Case 3:07-cv-01100-WQH-LSP Document 6 Filed 09/26/07 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`JESS MUSTANICH, aka JESS WILLIAM
`ALFARO,
`
`vs.
`ALBERTO GONZALES, et al.,
`
`Petitioner,
`
`Respondents.
`
`CASE NO. 07CV1100 WQH (LSP)
`ORDER GRANTING PETITION FOR
`WRIT OF HABEAS CORPUS IN
`PART
`
`HAYES, Judge:
`Pending before the Court is Petitioner Jess Mustanich’s Petition for Writ of Habeas Corpus
`pursuant to 28 U.S.C. § 2241. (Doc. # 1).
`BACKGROUND
`Born in El Salvador on August 15, 1978, Petitioner Jess Mustanich was adopted by United
`States citizens shortly after his birth and moved to the United States. Petition for Writ of Habeas
`Corpus (Pet.), ¶ 15. On February 22, 1979, the United States admitted Petitioner, age six months, as
`a lawful permanent resident. Pet., ¶ 15.
`In 1988, Petitioner’s father met with and telephoned officers of the Department of Homeland
`Security in an attempt to secure United States citizenship for Petitioner pursuant to 8 U.S.C. § 1433.1
`
`1 Pursuant to 8 U.S.C. § 1433, “a citizen of the United States may apply to the Attorney
`General for a certificate of citizenship on behalf of a child born outside the United States,” and the
`Attorney General “shall issue such a certificate” if statutory conditions are fulfilled.
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`Pet., ¶ 9; Return, Ex. C at 4-6. Petitioner’s father also sought the help of a juvenile court. Return, Ex.
`C at 4-6. However, Petitioner’s father was unsuccessful in timely completing the paperwork necessary
`to secure citizenship for Petitioner. Pet., ¶ 9. Petitioner alleges that the United States Government’s
`neglect and error resulted in Petitioner’s application for citizenship not being processed before
`Petitioner’s eighteenth birthday. Pet., ¶ 9; Return, Ex. C at 4-6.
`On April 15, 1997, Petitioner was convicted of two counts of residential burglary, in violation
`of California Penal Code §§ 459 and 460(a). Pet., ¶ 16. On December 21, 1998, Petitioner was
`convicted of being a prisoner in possession of a sharp instrument, in violation of California Penal
`Code § 4502(A). Pet., ¶ 16.
`On July 10, 2003, Respondents took Petitioner into custody and initiated removal proceedings
`against him pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of an alien
`convicted of an aggravated felony. Pet., ¶ 17; Return, Ex. B. On February 10, 2004, an Immigration
`Judge (IJ) denied Petitioner’s request for termination of removal proceedings and ordered Petitioner
`removed to El Salvador. Pet., ¶ 17; Return, Ex. C. Petitioner argued unsuccessfully to the IJ that the
`United States Government delayed and wrongfully impeded Petitioner’s father’s attempt to secure
`citizenship for Petitioner. Pet., ¶ 15; Return, Ex. C. On July 29, 2004, the Bureau of Immigration
`Appeals (BIA) affirmed the IJ’s administrative order of removal. Pet., ¶ 17; Return, Ex. D.
`On August 26, 2004, Petitioner filed a Petition for Review of the BIA decision in the Court
`of Appeals for the Ninth Circuit. Pet., ¶ 6; Return, Ex. H (Docket, Court of Appeals for the Ninth
`Circuit Case No. 04-74290). Petitioner also filed a motion to stay deportation. Return, Ex. H. On
`August 27, 2004, the Court of Appeals for the Ninth Circuit ordered Respondents to respond to
`Petitioner’s motion to stay deportation and to file the administrative record on or before October 26,
`2004. Return, Ex. H. Respondents did not comply with the Court of Appeals’ order. On November
`3, 2004, Respondents requested an additional three months to file the administrative record and a
`response to Petitioner’s motion to stay deportation. Return, Ex. H. On November 8, 2004, the Court
`of Appeals for the Ninth Circuit granted Respondents’ request for an extension of time, and ordered
`Respondents to file the administrative record and a response to Petitioner’s motion to stay deportation
`on or before January 25, 2005. Return, Ex. H. Respondents once again did not comply with the order
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`of the Court of Appeals. Return, Ex. H. On January 28, 2005, Respondents filed the administrative
`record. Return, Ex. H.
`On February 7, 2005, the Court of Appeals accepted Respondents’ late filing of the
`administrative record, but noted that Respondents had “failed to file a response to the motion for a
`stay.” Return, Ex. H. The Court of Appeals ordered that “within 21 days from the date of this order,
`[respondents] shall file a response to the motion for stay. In light of this delay, if [respondents] [fail]
`to comply with this order, the court will construe [respondents’] failure to respond as a [statement]
`of non/opp to the stay motion.” Return, Ex. H.
`Respondents did not file a response to Petitioner’s motion to stay deportation within 21 days
`of the Court of Appeals’ February 7, 2005, order. Return, Ex. H. On March 10, 2005, the Court of
`Appeals ordered that, “[i]n light of this [court’s] Feb. 7, 2005 order, [respondents’] failure to respond
`to the motion to stay removal is construed as a statement of non/opp to the stay motion.” Return, Ex.
`H. The Court of Appeals granted Petitioner’s motion for stay of deportation, and set a briefing
`schedule with respect to Petitioner’s Petition for Review of the BIA’s decision. Return, Ex. H.
`On May 19, 2005, Petitioner filed the opening brief in the Court of Appeals. Return, Ex. H.
`Thereafter, on June 17, 2005, Respondents sought an extension of time to file an answering brief.
`Return, Ex. H. On July 6, 2005, the Court of Appeals granted Respondents’ motion for an extension,
`and ordered Respondents to file an answering brief on or before July 29, 2005. Return, Ex. H.
`Respondents filed an answering brief on August 4, 2005. Return, Ex. H.
`On June 18, 2007, Petitioner filed the pending Petition for Writ of Habeas Corpus pursuant to
`28 U.S.C. § 2241. (Doc. # 1). As of the date of the Petition, Petitioner had been incarcerated for three
`years and eleven months. Pet., ¶ 31.
`During Petitioner’s detention, Respondents internally reviewed the terms of Petitioner’s
`detention on three occasions. Return, Exs. E-G. On February 2, 2005, Respondents concluded that
`Petitioner could not be released on supervision because, “you have demonstrated your inability and/or
`lack of respect for the laws of this country as is reflected in your criminal and immigration record.”
`Return, Ex. E. Respondents did not interview Petitioner before the February 2, 2005, custody
`determination, and did not identify Petitioner as a flight risk or a danger to the community at the time.
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`Return, Ex. E. On November 1, 2005, Respondents concluded that Petitioner could not be released
`on supervision because he was considered a “flight risk.” Return, Ex. F. Respondents did not
`interview Petitioner before the November 1, 2005, custody determination, but noted that Petitioner
`had a place to live, close family ties, and employment prospects in the United States. Return, Ex. F.
`Respondents also concluded that Petitioner did not meet any of the criteria for continued detention
`pursuant to 8 C.F.R. § 241.14. Return, Ex. F. On November 8, 2006, Respondents concluded that
`Petitioner could not be released on supervision because he was considered “a threat to the
`community,” and a “flight risk.” Return, Ex. G. Respondents did not interview Petitioner before the
`November 8, 2006, custody determination. Return, Ex. G.
`During each of the three internal custody reviews, Respondents indicated that Petitioner was
`being detained as an alien removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). See Return, Exs. E-G.
`Petitioner has not received a bail hearing before an IJ during his more than four year detention.
`Pet., ¶ 31.
`
`DISCUSSION
`Petitioner contends that he should be released pending resolution of his Petition for Review
`in the Court of Appeals for the Ninth Circuit. Petitioner contends that he is being detained indefinitely
`under the general detention statutes in violation of those statutes and the Constitution as articulated
`in Zadvydas v. Davis, 533 U.S. 678 (2001), Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), and
`Nadarajah v. Gonzales, 433 F.3d 1069 (9th Cir. 2006). Petitioner contends that there is no significant
`likelihood that he will be removed in the reasonably foreseeable future. Petitioner further contends
`that the sheer length of his detention–over four years as of the date of this Order–violates his right to
`due process. Petitioner contends in the alternative that he is entitled to a bail hearing before an
`immigration judge.
`Respondents contend that Petitioner is being detained pursuant to 8 U.S.C. § 1226(a), and that
`Tijani and Nadarajah do not apply to discretionary detention under 8 U.S.C. § 1226(a). Respondents
`further contend that the delay in removing Petitioner is due to Petitioner’s Petition for Review and
`motion for a stay of removal in the Court of Appeals for the Ninth Circuit, and that the delay is not
`attributable to Respondents. Respondents contend that Petitioner’s release is reasonably foreseeable
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`and that the length of Petitioner’s detention does not violate due process.
`I. Jurisdiction
`Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge “the extent of the
`Attorney General’s authority” to detain a removable alien under the general detention statutes.
`Zadvydas v. Davis, 533 U.S. 678, 687-89 (2001); see also Denmore v. Kim, 538 U.S. 510, 516-17
`(2003). Whereas here, an administrative order of removal is not final, “habeas corpus jurisdiction
`remains in the district court . . . .” Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006);
`see also 8 U.S.C. § 1231(a)(1) (describing how a removal order becomes final).
`II. Respondents’ Authority to Detain Petitioner
`Respondents contend that Petitioner is currently being detained by the Department of
`Homeland Security (DHS) pursuant to its discretionary authority under 8 U.S.C. § 1226(a)(1).
`Respondents explain that DHS detained and charged Petitioner in July of 2003 as a criminal alien
`subject to deportation for commission of an aggravated felony, and that Petitioner was subject to
`mandatory detention pursuant to 8 U.S.C. § 1226(c)(1)(B) between July 10, 2003, the original date
`of detention, and July 19, 2004, the date that the Bureau of Immigration Appeals (BIA) affirmed the
`IJ’s order of removal. Return at 2-3. Respondents contend that the statutory authority to detain
`Petitioner changed administratively from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1226(a) when Petitioner
`appealed the decision of the BIA to the Court of Appeals for the Ninth Circuit. Return at 4-5
`(“Detention authority changes administratively when the removal order becomes administratively
`final.”). Respondents contend that an alien cannot be detained pursuant to 8 U.S.C. § 1226(c) during
`the time that the alien’s appeal from an order of removal is pending in the Court of Appeals.
`Petitioner does not address whether 8 U.S.C. § 1226(a) or 8 U.S.C. § 1226(c) is the proper
`basis for Petitioner’s detention, but Petitioner acknowledges Respondents’ contention that Petitioner
`is currently being discretionarily detained pursuant to 8 U.S.C. § 1226(a).
`8 U.S.C. § 1226 provides for the discretionary and mandatory detention of removable aliens
`by the Attorney General. 8 U.S.C. § 1226(a) outlines the Attorney General’s discretionary power to
`detain aliens, and provides that the Attorney General may arrest and detain an alien “pending a
`decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Those
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`aliens detained pursuant to 8 U.S.C. § 1226(a) may be released on bond in the discretion of the
`Attorney General. See 8 U.S.C. § 1226(a)(2). 8 U.S.C. § 1226(c) provides for the mandatory
`detention of certain aliens, including aliens who are removable by reason of having committed an
`aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43). See 8 U.S.C.
`§ 1226(c)(1)(B). Aliens subject to mandatory detention under 8 U.S.C. § 1226(c) must be detained
`by the Attorney General, and are not statutorily entitled to release on bond during the removal period
`except under the limited circumstances outlined in 8 U.S.C. § 1226(c)(2), which are not relevant here.2
`See 8 C.F.R. § 236.1(c)(1) (“[N]o alien described in section 236(c)(1) of the Act may be released from
`custody during removal proceedings except pursuant to section 236(c)(2).”).
`Respondents concede that Petitioner was detained and charged in July 2003 as an alien subject
`to removal for conviction of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8
`U.S.C. § 1101(a)(43)(g), and Petitioner does not dispute that he was convicted in California state court
`of two counts of First Degree Burglary in April of 1997. Respondents likewise concede that Petitioner
`was subject to mandatory detention pursuant to 8 U.S.C. § 1226(c) during his administrative removal
`proceedings before the IJ and BIA. However, Respondents argue that Petitioner’s current detention
`is not pursuant 8 U.S.C. § 1226(c) because Petitioner’s detention changed administratively from 8
`U.S.C. § 1226(c) to 8 U.S.C. § 1226(a) when Petitioner appealed the decision of the BIA to the Court
`of Appeals for the Ninth Circuit.
`Aside from citing to Code of Federal Regulation provisions which do not discuss the effect of
`judicial review on mandatory detention under 8 U.S.C. § 1226(c), see Return at 4-5, citing 8 C.F.R.
`§§ 1003.19, 1003.39, 236.1(c)(1), Respondents do not provide case or statutory support for their
`argument that Petitioner’s detention changed administratively from 8 U.S.C. § 1226(c) to 8 U.S.C. §
`1226(a) when Petitioner filed a Petition for Review with the Court of Appeals for the Ninth Circuit.
`Indeed, nothing in the text of 8 U.S.C. § 1226(c) limits mandatory detention to administrative removal
`
`2 An alien mandatorily detained pursuant to 8 U.S.C. § 1226(c), could also be released by the
`Attorney General if the Attorney General determined that the length and circumstances of the alien’s
`detention no longer was authorized by 8 U.S.C. § 1226(c) or violated the United States Constitution.
`See Tijani, 443 F.3d at 1242 (“[W]e interpret the authority conferred by § 1226(c) as applying to
`expedited removal of criminal aliens;” “it constitutionally doubtful that Congress may authorize
`imprisonment of this duration for lawfully admitted resident aliens who are subject to removal.” ).
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`proceedings as opposed to judicial removal proceedings, and no part of 8 U.S.C. § 1226 distinguishes
`between administrative and judicial review of an IJ’s order of removal. A review of the relevant
`statutory scheme, including the Code of Federal Regulations, reveals that aliens subject to
`discretionary detention under 8 U.S.C. § 1226(a) are eligible for release on bond and can appeal bond
`decisions to an IJ–two options statutorily unavailable to aliens subject to mandatory detention under
`8 U.S.C. § 1226(c). See 8 U.S.C. § 1226(a); 8 C.F.R. §§ 236.1(c)(1), 236.1(d), 1003.19(a). If this
`Court were to adopt Respondents’ arguments, however, such opportunities for release would be
`readily available to all aliens otherwise subject to mandatory detention despite clear language in 8
`C.F.R. § 236.1(c)(1) precluding release of mandatorily detained aliens and the important policies
`behind mandatory detention outlined in Denmore v. Kim, 538 U.S. at 528.
`After reviewing a number of cases, it is evident that courts view the continued detention of an
`alien after the alien has sought judicial review of an order of removal to remain statutorily authorized
`by the subpart of 8 U.S.C. § 1226 that authorized the detention before judicial review. For instance,
`in Madrane v. Hogan, 05-CV-2228, 2007 U.S. Dist. LEXIS 7970, *4-6, 8 (M.D. Pa. Feb. 5, 2007),
`a removable alien was detained pursuant to 8 U.S.C. § 1226(c), and thereafter filed a Petition for
`Review with the United States Court of Appeals and a Petition for Writ of Habeas Corpus in the
`district court. In evaluating the alien’s Petition for Writ of Habeas Corpus, the government argued
`and the district court agreed that the alien was “subject to pre-final order detention pursuant to §
`1226(c)(1)(B)” while awaiting “a decision from the United States Court of Appeals on his petition for
`review of a final order of removal.” Id. at 2-4, 8; see also Marks v. Clark, Case No. C06-1796-RSM,
`2007 U.S. Dist. LEXIS 53026, *8-11 (W.D. Wash. May 29, 2007) (alien is detained pursuant to 8
`U.S.C. § 1226(c) during pendency of alien’s Petition for Review in Ninth Circuit); Singh v. Clark,
`2007 U.S. Dist. LEXIS 50237, *8-11 (W.D. Wash. Feb. 13, 2007) (same). Similarly, in Gamez-
`Villagrana v. Gonzales, No. 05-75441, 2007 U.S. App. LEXIS 18854 (9th Cir. Aug. 2, 2007)3, the
`Court of Appeal for the Ninth Circuit evaluated an alien’s Petition for Review and noted that the alien
`had been detained pursuant to 8 U.S.C. § 1226(c) during the time period that the Petition for Review
`
`3 Pursuant to Court of Appeals for the Ninth Circuit Rule 36-3, this unpublished Ninth Circuit
`opinion may be cited, but is not binding “precedent.”
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`was pending in the Court of Appeals. Id. at 3 (“We note that petitioner has now been in the custody
`of the Attorney General, pursuant to INA § 236(c) . . . for more than three years.”).
`Some courts have concluded that an alien’s detention pending judicial review of an order of
`removal was pursuant to 8 U.S.C. § 1226(a). See, e.g., Azeke v. Gonzales, No. C-07-0709 MMC, 2007
`U.S. Dist. LEXIS 33815, *1-3 & fn. 4 (N.D. Cal. Apr. 25, 2007). However, those cases do not stand
`for the proposition that an alien’s detention pending judicial review of an administrative order of
`removal changes administratively to 8 U.S.C. § 1226(a) as proposed by Respondents. Rather, those
`cases stand for the proposition that an alien subject to discretionary detention pursuant to 8 U.S.C. §
`1226(a) before judicial review, remains subject to detention under 8 U.S.C. § 1226(a) during the
`pendency of judicial review. Accordingly, while it is true that the alien in Azeke was subject to
`discretionary detention pursuant to 8 U.S.C. § 1226(a) pending judicial review, it was not because the
`statutory basis for the detention changed administratively to 8 U.S.C. § 1226(a)–rather, it was because
`the alien in Azeke was not subject to mandatory detention under 8 U.S.C. § 1226(c) for the charge of
`overstaying his visa. Azeke, No. C-07-0709 MMC, 2007 U.S. Dist. LEXIS 33815, *1-3 & fn. 4 (N.D.
`Cal. Apr. 25, 2007).
`DHS charged Petitioner with removability for being a criminal alien convicted of an
`aggravated felony, and Petitioner concedes that his convictions for burglary constitute aggravated
`felonies. See 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(g); Return, Ex. B. Accordingly,
`the Court concludes that Petitioner is subject to detention pursuant to 8 U.S.C. § 1226(c)(1)(B) until
`the Court of Appeals for the Ninth Circuit rules on Petitioner’s pending Petition for Review and lifts
`the stay of deportation. See Marks, Case No. C06-1796-RSM, 2007 U.S. Dist. LEXIS 53026, *8-11
`(W.D. Wash. May 29, 2007; see also 8 U.S.C. § 1231(a) (defining the removal period).
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`II. Whether 8 U.S.C. § 1226(c) Authorizes Petitioner’s Continued Detention For Over Four
`Years
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`A. Background
`In 2003, the United States Supreme Court held that mandatory detention of an alien pursuant
`to 8 U.S.C. § 1226(c) was a “constitutionally permissible” part of the removal process for the “limited
`period” necessary to complete removal proceedings. Denmore v. Kim, 538 U.S. at 526, 531. The
`Court distinguished Zadvydas v. Davis, a case in which the Supreme Court held that an alien subject
`to a final order of removal could not be indefinitely detained pursuant to 8 U.S.C. § 1231, on the
`grounds that (1) an alien detained for the limited period necessary to effect removal pursuant to 8
`U.S.C. § 1226(c) was not detained indefinitely, and (2) mandatory detention pursuant to 8 U.S.C. §
`1226(c) was generally of a much shorter duration than “post-removal-period detention” pursuant to
`8 U.S.C. § 1231–“in the majority of cases [mandatory detention pursuant to 8 U.S.C. § 1226(c)] lasts
`for less than the 90 days we considered presumptively valid in Zadvydas.” Denmore, 538 U.S. at 527-
`31. With respect to detention pursuant to 8 U.S.C. § 1226(c), the Supreme Court cited statistics from
`the Executive Office for Immigration Review and noted that “the detention at stake under § 1226(c)
`lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five
`months in the minority of cases in which the alien chooses to appeal.” Denmore, 538 U.S. at 530.
`Though the Denmore Court characterized constitutional detention pursuant to 8 U.S.C. § 1226(c) as
`“limited” and “brief,” it did not explicitly limit the length of mandatory detention pursuant to 8 U.S.C.
`§ 1226(c), and did not articulate a presumptively reasonable length of detention pursuant to 8 U.S.C.
`§ 1226(c) as it did in Zadvydas for detention pursuant to 8 U.S.C. § 1231.4 Denmore, 538 U.S. at 526,
`531; see also Madrane v. Hogan, No. 1:05-CV-2228, 2007 U.S. Dist. LEXIS 7970, *9 (M.D. Pa. Feb.
`7, 2007) (detailing Denmore’s references to “brief” and “limited” detention pursuant to 8 U.S.C. §
`1226(c)).
`Three years after Denmore, the Court of Appeals for the Ninth Circuit addressed a habeas
`petition filed by an alien who had been mandatorily detained pursuant to 8 U.S.C. § 1226(c) for “two
`years and four months.” Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005). Distinguishing Denmore on
`
`4 In Zadvydas, the United States Supreme Court held that a detention of six months or less
`pursuant to 8 U.S.C. § 1231 is presumptively reasonable. Zadvydas, 533 U.S. at 700-01.
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`the grounds that the alien in Denmore conceded removability, the Court of Appeals concluded that
`8 U.S.C. § 1226(c) applied to “expedited” removal proceedings, and remanded the petition to district
`court with instructions to grant the writ unless the Attorney General established that the alien was a
`flight risk or a danger to the community in a bail hearing before an IJ. Tijani, 430 F.3d at 1242. The
`Court of Appeals concluded that “two years and four months of process is not expeditious,” and cited
`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, 430 F.3d at 1242; see also Zadvydas, 533 U.S. at 690. The Court referenced the “year or
`more” of time necessary for judicial review to support the Court’s granting of the writ. Tijani, 430
`F.3d at 1242.
`Less than a year after Tijani, the Court of Appeals for the Ninth Circuit again addressed the
`scope of detention pursuant to general immigration statutes in Nadarajah v. Gonzales, 443 F.3d 1069
`(9th Cir. 2006). Rejecting the government’s contention that Denmore v. Kim authorized indefinite
`detention, the Court of Appeals held that, “general immigration detention statutes do not authorize the
`Attorney General to incarcerate detainees for an indefinite period.” Nadarajah, 443 F.3d at 1076,
`1078, 1080-81. The Court further held that detention pursuant to general detention statutes must be
`for a reasonable period, and only if there is a significant likelihood of removal in the
`reasonably foreseeable future. After a presumptively reasonable six-month detention,
`once the alien provides good reason to believe that there is no significant likelihood
`of removal in the reasonably foreseeable future, the Government must respond with
`evidence sufficient to rebut that showing.
`Id. at 1079. The Nadarajah Court held that a detention of nearly five years is “plainly unreasonable
`under any measure.” Id. at 1080.
`B. The Parties’ Arguments
`Citing Zadvydas, Tijani, and Nadarajah, Petitioner contends that his continued detention is
`indefinite and unreasonable, and that his removal is not significantly likely in the reasonably
`foreseeable future. Specifically, Petitioner argues that he is not likely to be removed because (1) his
`Petition for Review in the Ninth Circuit may well succeed, and (2) El Salvador is unlikely to issue
`travel documents for Petitioner because Petitioner was adopted by American citizens at age six months
`and moved to the United States. Petitioner contends that the sheer length of his detention without a
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`bail hearing is unreasonable and violates due process, and at the very least, entitles him to a bail
`hearing before an IJ under Tijani.
`Respondents contend that Petitioner’s detention is not indefinite, and note that the majority
`of Petitioner’s detention is attributable to Petitioner’s filing of a Petition for Review in the Court of
`Appeals for the Ninth Circuit. Respondents contend that delays pending judicial review are not
`attributable to the government. Respondents further contend that Nadarajah controls the analysis,
`and argue that Nadarajah displaced Tijani. With respect to Petitioner’s request for a bail hearing,
`Respondents contend that they afforded Petitioner three constitutionally adequate internal custody
`reviews.
`C. Analysis
`In light of Tijani’s holding that 8 U.S.C. § 1226(c) authorizes only “expedited” removal
`proceedings, and Nadarajah’s holding that detention pursuant to general immigration statutes must
`be “reasonable” in the first instance, the Court must determine whether Petitioner Jess Mustanich’s
`removal proceedings have been “expeditious,” and whether his continued detention without a bail
`hearing is “reasonable.” Tijani, 430 F.3d at 1242; Nadarajah, 433 F.3d at 1079-80. In Denmore, the
`United States Supreme Court held that a six month detention was authorized by 8 U.S.C. § 1226(c),
`and thus, at minimum, six months must be considered reasonable and expeditious. Denmore, 538 U.S.
`at 530-01. In Tijani, the Court of Appeals held that a removal proceeding of two years and four
`months was not “expeditious,” and granted the petitioner a bail hearing. Tijani, 430 F.3d at 1242. Of
`the two years and four months at issue in Tijani, at least some of the time accrued while the
`petitioner’s order of removal was before the Ninth Circuit. Id. In Nadarajah, the Court of Appeals
`held that a five year detention was “plainly unreasonable by any measure.” Nadarajah, 443 F.3d at
`1080.
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`Respondents have detained Petitioner for more than four years pursuant to 8 U.S.C. § 1226(c).
`Seven months accrued during proceedings before the IJ, five-and-a-half months during proceedings
`before the BIA, and approximately thirty-six months during proceedings before the Court of Appeals
`for the Ninth Circuit.
`In Denmore, the Supreme Court noted that removable aliens appeal to the BIA in only 15%
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`of cases involving detention pursuant to 8 U.S.C. § 1226(c), and that where an alien appeals an order
`of removal to the BIA, mandatory detention generally lasts only five months. Denmore, 538 U.S. at
`530. Here, Petitioner’s proceedings before the IJ and the BIA lasted approximately 12 ½ months, 7
`½ months longer than in the typical case. Respondents do not set forth facts which establish that
`Petitioner is responsible for delay during the IJ and BIA proceedings. Accordingly, the length of
`detention during proceedings before the IJ and the BIA weighs against a finding that Petitioner’s
`removal proceedings and detention have been “expeditious” and “reasonable.” Tijani, 430 F.3d at
`1242; Nadarajah, 433 F.3d at 1079-80.
`The majority of Petitioner’s detention accrued after Petitioner appealed the order of the BIA
`to the Court of Appeals for the Ninth Circuit. Respondents argue that this time is not attributable to
`Respondents because Petitioner appealed to the Ninth Circuit and filed a motion to stay deportation.
`Respondents contend that detention during judicial review of a BIA’s decision is irrelevant in
`evaluating the length of an alien’s detention in the context of a habeas petition. Petitioner contends
`that the sheer length of his detention during judicial review is relevant to whether his detention is
`reasonable.
`Whether detention pending judicial review can be considered in assessing the reasonableness
`of an alien’s mandatory detention pursuant to 8 U.S.C. § 1226(c), and if so, how it should be
`considered, is a question that has not been explicitly addressed by either the United States Supreme
`Court or the Court of Appeals for the Ninth Circuit. However, the Court of Appeals for the Ninth
`Circuit referenced the period of judicial review which had elapsed and that which was yet to come in
`support of its holding in Tijani that the alien’s removal proceedings were not expeditious, and it is
`apparent that the Tijani Court included at least some time which accrued during judicial review in its
`conclusion that the petitioner had been detained for two years and four months. Tijani, 430 F.3d at
`1242.5 As in Tijani, some district courts have considered detention pending judicial review in
`determining whether 8 U.S.C. § 1226(c) authorized a prolonged detention. See Martinez-Herrera v.
`Crawford, No. CIV 07-0267-PHX-NVW (DKD), 2007 U.S. Dist. LEXIS 53334, *6-8 (D. Ariz. Jun.
`
`5 In Gamez-Villagrana v. Gonzales, No. 05-75441, 2007 U.S. App. LEXIS 18854, *3-4 (9th
`Cir. Aug. 2, 2007), the Court of Appeal noted with approval the consideration of periods of detention
`which accrue during proceedings before the Court of Appeal.
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`20, 2007) (noting that the Ninth Circuit considered detention pending judicial review in evaluating
`the detention in Tijani); Singh v. Crawford, No. CV 06-2194-PHX-MHM (GEE), Doc. # 22 at 4 (D.
`Ariz. Apr. 13, 2007) adopted by Singh v. Crawford, No. CV 06-2194-PHX-MHM (GEE), 2007 U.S.
`Dist. LEXIS 57249 (D. Ariz. Aug. 3, 2007) (considering 2 years in which alien was detained pending
`judicial review); but see Singh v. Gonzales, No. CV 06-135-PHX-JAT, 2007 U.S. Dist. LEXIS 27837,
`*6 (D. Ariz. Apr. 13, 2007) (noting that petitioner’s continued custody is the result of his own actions
`in appealing to the Ninth Circuit). After reviewing the relevant case law, and particularly Tijani, the
`Court concludes that it can and must consider periods of detention which accrue pending judicial
`review in determining whether removal proceedings and detention pursuant to 8 U.S.C. § 1226(c) are
`expeditious and reasonable.
`The Court finds unpersuasive Respondents’ argument that because Petitioner appealed to the
`Court of Appeals for the Ninth Circuit and sought a stay of removal, the period of Petitioner’s
`detention which a