Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 1558

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 1558

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DANIEL G. KNAUSS United States Attorney District of Arizona BRIDGET S. BADE Assistant U.S. Attorney Arizona State Bar No. 13406 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Moses Gai Geng, Petitioner, v. Michael Chertoff, et al., Respondents. CIV-07-0870-PHX-EHC (JRI) REPLY TO PETITIONER'S RESPONSE TO ORDER TO SHOW CAUSE

In his petition seeking a writ of habeas corpus (Doc. No. 1), Petitioner Geng (Geng)

16 challenged his continued post-order detention based on the Supreme Court's decision in 17 Zadvydas v. Davis, 533 U.S. 678 (2001). While Geng's petition was pending, the Department 18 of Homeland Security, Immigration and Customs Enforcement (ICE) determined that Geng 19 should be released from custody on the condition that he post a $10,000 bond. See Release on 20 Bond Notice, dated June 21, 2007, attached as Exhibit 1 to Respondents' Response to Petition 21 for Writ of Habeas Corpus and Suggestion of Mootness (Doc. No. 7).1 Therefore, Geng received 22 the relief that he sought in his petition, Respondents requested that the Court dismiss the petition 23 as moot (Doc. No. 7), and the Court issued an order to show cause for Geng to establish why his 24 petition should not be dismissed as moot. (Doc. No. 8). 25 26 The Release on Bond Notification also requires that Geng (1) report to his parole officer within 48 hours of his release to fulfill probationary requirements, (2) present a current travel 27 document or application for travel document within 60 days of release, and (3) report monthly in person to an ICE office and report weekly by telephone until he is removed. It does not appear 28 that Geng objects to these conditions.
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In response to the Court's order to show cause why his petition should not be dismissed

2 as moot, Petitioner Geng makes two arguments. First, it appears that he is arguing that the 3 government cannot order his release subject to conditions of supervision, including the posting 4 of a bond. This argument must fail because both the Supreme Court and the Ninth Circuit have 5 held that the imposition of a bond as a condition of supervised release is lawful. Second, Geng 6 argues that he cannot pay any amount for a bond and, therefore, the requirement that he post 7 bond subjects him to "indefinite detention." This argument must fail as well because Geng has 8 not requested a bond redetermination from ICE and, therefore, he has failed to exhaust 9 administrative remedies and the Court should not determine the alternative relief that Geng now 10 seeks. 11 For these reasons, the Court should dismiss Geng's petition as moot or order a stay until

12 Geng exhausts his administrative remedies. 13 14 I. 15 16 ARGUMENT The Supreme Court and the Ninth Circuit have Determined that Bond is a Reasonable and Lawful Condition of Release. In his response to the Court's order to show cause, Geng argues that his petition is not

17 moot because "nothing prevents ICE from later revoking my bond or increasing the bond 18 amount." Response to Respondents' Response to Petition for Writ of Habeas Corpus and 19 Suggestion of Mootness, at 1 (Response to Order to Show Cause) (Doc. No. 10). In this 20 argument, it appears that Geng is arguing that ICE may not impose conditions upon his release 21 or revoke his release if he violates those conditions. 22 The Supreme Court, however, has held that release subject to conditions is the appropriate

23 alternative to detention. See Zadvydas v. Davis, 533 U.S. 678, 696 (2001). The Court explained 24 that "the choice, however, is not between imprisonment and the alien `living at large.' It is 25 between imprisonment and supervision under release conditions that may not be violated." Id. 26 (citing 8 U.S.C. §§ 1231(a), 1253; 8 C.F.R. § 241.5) (internal citations omitted). "[T]he alien's 27 release may and should be conditioned on any of the various forms of supervised release that are 28 2

1 appropriate in the circumstances, and the alien may no doubt be returned to custody upon a 2 violation of those conditions. Id. at 700. 3 The Ninth Circuit has also held ICE may condition an alien's release upon posting of a

4 bond. See Doan v. Immigration and Naturalization Service, 311 F.3d 1160,1161 (9th Cir. 2002) 5 ("a bond is well within the kinds of conditions contemplated by the Supreme Court in Zadvydas, 6 where the Court observed that 8 C.F.R. § 241.5 (2001) establishes conditions of release. Those 7 conditions include the posting of a bond.") (citing Zadvydas, 533 U.S. at 688-89).2 Thus, 8 Supreme Court and Ninth Circuit precedent establish that an alien's release may be subject to 9 conditions and can be revoked if those conditions are violated. Therefore, this Court should 10 reject Geng's argument that his habeas petition is not moot because his conditions of release 11 could be altered or revoked. 12 II. 13 14 The Petition Should be Dismissed or Stayed Because Geng has Failed to Exhaust Administrative Remedies. Geng also argues that his petition is not mooted by the Release on Bond Notification

15 because he cannot pay a bond in any amount and, therefore, requiring him to post a bond as a 16 condition of release is the same as imposing indefinite detention. See Response to Order to Show 17 Cause, at 3 (Doc. No. 10). To support his argument, Geng attaches a declaration in which he 18 claims that he cannot pay a bond of any amount and that he has no family or friends who could 19 pay a bond of any amount. Id. Based on this declaration alone, Geng argues that he should be 20 released without bond. 21 ICE, however, has established an administrative procedure for an alien to request

22 reconsideration of a bond amount set as a condition of release. See Declaration of Marcos 23 Contreras, at ¶ 7 ( attached as Ex. A). The Release on Bond Notification informs the alien of this 24 procedure and states: "[s]hould you have any concerns regarding you ability to post the required 25 26 See also Mahmoud v. Cangemi, 2006 WL 1174214, at *2 (D. Minn. 2006)(collecting cases in which the courts have held that the government may impose conditions upon an alien's 27 release under Zadvydas). 28 3
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1 bond, you may seek reconsideration by making a written request to ICE Headquarters Post-order 2 Detention Unit (HQPDU) at the above address. Your request should include any financial 3 documentation in support of your claim." Response to Petition for Writ of Habeas Corpus and 4 Suggestion of Mootness, at Ex. 1 (Doc. No. 7). Despite receiving this notice, Geng has not 5 submitted a written bond reconsideration request. Ex. A at ¶ 8. 6 The bond reconsideration process that ICE has established is a reasonable interpretation

7 of 8 C.F.R. § 241.5(b) that is entitled to substantial deference and should be upheld. See, e.g., 8 Auer v. Robbins, 519 U.S. 452, 461-63 (administrative agencies' interpretations of their own 9 regulations are entitled to substantial deference); Udall v. Tallman, 380 U.S. 1, 16 (1965) 10 ("When faced with a problem of statutory construction, the Court shows great deference to the 11 interpretation the statute by the officers or agency charged with its administration . . . . When the 12 construction of an administrative regulation is in issue, deference is even more clearly in order.") 13 (internal citations omitted). An agency's interpretation of its regulations is entitled this 14 substantial deference because the agency is presumed to have authority to set policy within the 15 sphere of its responsibility. See Martin v. Occupational Safety and Health Review Comm'n, 499 16 U.S. 144, 151 (1991) ("Because applying an agency's regulations to complex or changing 17 circumstances calls upon the agency's unique expertise and policymaking prerogatives, we 18 presume that the power authoritatively to interpret its own regulations is a component of the 19 agency's delegated lawmaking powers."). Therefore, Geng should be required to comply with 20 ICE's bond reconsideration process and exhaust his administrative remedies before seeking a 21 judicial determination of the issue. 22 Requiring Geng to exhaust his administrative remedies would also comport with the

23 doctrine of prudential exhaustion, which requires that parties generally exhaust available 24 administrative remedies before seeking relief from the federal courts. See McCarthy v. Madigan, 25 503 U.S. 140, 145 (1992) ( The exhaustion rule applies "with particular force when the action 26 under review involves exercise of the agency's discretionary power or when the agency 27 proceedings in question allow the agency to apply its special expertise."), superseded by statute 28 4

1 on other grounds as stated in Garrett v. Hawk, 127 F.3d 1293 (10th Cir. 1997); Schlesinger v. 2 Councilman, 420 U.S. 738, 756 (1975) (The rule "is based on the need to allow agencies to 3 develop the facts, to apply the law in which they are peculiarly expert, and to correct their own 4 errors" and it "ensures that whatever judicial review is available will be informed and narrowed 5 by the agencies' own decisions."); Joint Bd. of Control of the Flathead, Mission and Jocko 6 Irrigation Dist. v. United States, 862 F.2d 195, 199 (9th Cir. 1988) ("Exhaustion insures that a 7 court will have the benefit of the agency's experience in exercising administrative discretion, as 8 well as a factual record to review."). Moreover, the Ninth Circuit has expressly held that the 9 prudential exhaustion requirement applies to habeas petitions, such that a district court lacks 10 authority to hear a claim by a petitioner who has not exhausted his available judicial and 11 administrative remedies before seeking relief under 28 U.S.C. § 2241. See Castro-Cortez v. 12 INS, 239 F.3d 1037, 1047 (9th Cir. 2001) ("we require, as a prudential matter, that habeas 13 petitioners exhaust available judicial and administrative remedies before seeking relief under § 14 2241.") (citations omitted), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 126 15 S. Ct. 2422 (2006). 16 Furthermore, the Court should require Geng to exhaust his administrative remedies in the

17 interest of practical concerns of judicial economy because the agency's decision often will end 18 the need for any involvement by the courts. See King v. Gonzales, 2006 WL 2051697, at *3 19 (W.D. La. 2006) (denying habeas petition in which alien, who was ordered released subject to 20 posting bond, argued that the amount of bond was unreasonable; the court noted that the 21 petitioner could seek a review of the bond amount by ICE) (citing Shokeh v. Thompson, 375 F.3d 22 351 (5th Cir. 2004)). In addition, requiring Geng to exhaust his administrative remedies would 23 allow ICE to reconsider the amount of Geng's bond, with the possibility that ICE would impose 24 a lower bond, or impose no bond, or impose other conditions for release instead of a bond. 25 Finally, even if Geng submits a request for bond reconsideration and ICE determines that the 26 original bond imposed is reasonable, the Court will have the benefit of ICE's reasons and a more 27 complete record. For these reasons, it is in the best interest of the Court and the parties to 28 5

1 require that Geng comply with the bond reconsideration procedure before seeking habeas relief 2 in federal court. 3 4 CONCLUSION For the foregoing reasons, the Court should dismiss Geng's Petition for Writ of Habeas

5 Corpus as moot or, in the alternative, stay its ruling on the petition until Geng exhausts 6 administrative remedies. 7 8 9 10 11 12 13 14 15 16 17 18 CERTIFICATE OF SERVICE I hereby certify that on August 6, 2007, I submitted the attached document for filing through the CM/ECF System and served a copy of the attached document by mail, on the following, who is not a registered participant of the CM/ECF System to the following addresses: Respectfully submitted this 6th day of August, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Bridget S. Bade BRIDGET S. BADE Assistant U.S. Attorney

Moses Gai Geng 19 Reg. # A-79-820-796 Eloy Detention Center 20 1705 East Hanna Road Eloy, Arizona 85231 21 22 Office of the U.S. Attorney 23 24 25 26 27 28 6
s/Rufina Lebario