Ortega v. Hodgson, et al
Filing
19
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE:PETITION FOR WRIT OF HABEAS CORPUS (DOCKET ENTRY # 1). Respondent is ORDERED to file a status report of the progress of the BIA proceeding to date on or before September 21, 2011. Respondents request to deny the petition (Docket Entry # 12, p. 17) is held in abeyance pending receipt of the status report.(Feeney, Eileen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CARMEN ORTEGA,
Petitioner,
v.
CIVIL ACTION NO.
11-10358-MBB
THOMAS HODGSON, Sheriff Bristol
County House of Corrections,
Respondent.
MEMORANDUM AND ORDER RE:
PETITION FOR WRIT OF HABEAS CORPUS
(DOCKET ENTRY # 1)
September 13, 2011
BOWLER, U.S.M.J.
Petitioner Carmen Ortega (“petitioner”) has been in the
custody of Immigration and Customs Enforcement (“ICE”) since
November 17, 2009, pursuant to 8 U.S.C. § 1226(c) (“section
1226(c)”) awaiting the administrative adjudication of deportation
proceedings.
On March 2, 2011, she filed a petition for writ of
habeas corpus (“the petition”) under 28 U.S.C. § 2241.
(Docket
Entry # 1).
Petitioner, housed at the Bristol County House of
Corrections, argues that her prolonged detention, which exceeded
15 months in March 2011, is unreasonable and violates her right
to due process.
(Docket Entry ## 1 & 16).
Respondent Thomas
Hodgson (“respondent”), Sheriff of the Bristol County House of
Corrections, and Bruce Chadbourne, the Boston Field Office
Director of ICE, filed an answer and response to the petition.1
(Docket Entry # 12).
On May 6, 2011, this court heard oral
argument and took the matter under advisement.
BACKGROUND
Petitioner was born in 1949 and admitted to the United
States as a lawful permanent resident (“LPR”) on January 29,
1969.
(Docket Entry # 1, Ex. 4).
On June 9, 2008, petitioner
pleaded nolo contendere to possession of a schedule I-V
controlled substance under Rhode Island General Laws section 2128-4.01(c)(1) and received a three year suspended sentence.
(Docket Entry # 1, Ex. 5).
On August 8, 2008, petitioner was
charged with a second offense for possession of a schedule I-V
controlled substance under Rhode Island General Laws section 2128-4.01(c)(1).
(Docket Entry # 1, Ex. 6).
pleaded not guilty.
Petitioner originally
(Docket Entry # 1, Ex. 6).
On October 20,
2009, petitioner retracted her not guilty plea and pleaded nolo
contendere.
(Docket Entry # 1, Ex. 6).
The Rhode Island state
court sentenced petitioner to one year of imprisonment and
additionally imposed a five year suspended sentence.
(Docket
Entry # 1, Ex. 5).
1
Petitioner
petition. In
stipulated to
(Docket Entry
names Thomas Hodgson and Bruce Chadbourne in the
response to a March 14, 2011 show cause order, they
naming Thomas Hodgson as the sole respondent.
# 12).
2
On November 17, 2009, upon completion of the one year
sentence,2 the United States Department of Homeland Security
(“DHS”) issued and executed an arrest warrant.
12, Ex. 6).
(Docket Entry #
Petitioner was transferred to DHS custody for
removal proceedings pursuant to section 1226(c).
(Docket Entry #
12, Ex. 6).
On December 1, 2009, petitioner first appeared before an
immigration judge (“IJ”).
The IJ recommended that petitioner
request a continuance to find an attorney, which petitioner
agreed to seek during the proceeding.
conference for December 15, 2009.
8).
The IJ scheduled a further
(Docket Entry # 12, Ex. 16, p.
On December 15, 2009, petitioner appeared before the IJ for
a second time without representation and requested another
continuance to find an attorney.
12).
(Docket Entry # 12, Ex. 16, p.
The IJ allowed the continuance.
(Docket Entry # 12, Ex.
16, p. 12).
At petitioner’s third appearance before the IJ on January 5,
2010, she claimed she could not afford private counsel and had
yet to secure one willing to take her case from the court’s pro
bono list.
(Docket Entry # 12, Ex. 16, pp. 15-16).
The IJ
assigned the case to an attorney present in the courtroom
(“petitioner’s counsel”) who agreed to represent petitioner pro
2
When petitioner pleaded guilty to the second offense, her time
of incarceration during the criminal proceedings was considered
part of the time served on the one year sentence.
3
bono.
(Docket Entry # 12, Ex. 16, p. 17).
In light of the
appointment of counsel, the IJ continued the case for two weeks,
as opposed to one week, at the request of petitioner’s counsel.
(Docket Entry # 12, Ex. 16, p. 19).
On January 19, 2010, at petitioner’s fourth appearance,
petitioner’s counsel raised concern about her ability to
represent petitioner because she was not licensed to practice in
Rhode Island where the offenses occurred.
Ex. 16, p. 21).
(Docket Entry # 12,
Petitioner’s counsel, who had not yet filed an
appearance, advised the IJ that she had spoken with an individual
who operated the Roger Williams Law School Clinic willing to
represent petitioner.
(Docket Entry # 12, Ex. 16, p. 22).
Petitioner’s counsel then requested another continuance and the
court scheduled a further conference for February 2, 2010.
(Docket Entry # 12, Ex. 16, p. 24).
On February 2, 2010, Mary Holper, Esq. (“Holper”) of the
Roger Williams Law School Clinic accompanied petitioner to her
fifth appearance before the IJ.
At this proceeding, Holper
submitted an appearance and requested two weeks to file
pleadings.
(Docket Entry # 12, Ex. 16, pp. 27-28).
allowed the request for a continuance.
The IJ
(Docket Entry # 12, Ex.
16, p. 28).
At petitioner’s sixth appearance on February 16, 2010,
Holper submitted petitioner’s pleadings.
4
She conceded
removability and sought a cancellation of removal.
Holper then
asked the IJ for three weeks in which to file an application
(“42(a) application”) to cancel removal under 8 U.S.C. § 1229(b).
(Docket Entry # 12, Ex. 16, p. 31).
On March 9, 2010, petitioner, represented by Holper,
appeared before the IJ for the seventh time, filed a 42(a)
application for cancellation of removal (Docket Entry # 12, Ex.
9) and requested a hearing on the merits of the application.
(Docket Entry # 12, Ex. 16, pp. 36-39).
hearing for April 13, 2010.3
The IJ scheduled the
(Docket Entry # 12, Ex. 16, p. 39).
The merits hearing took place on April 13, 2010.
Entry # 12, Ex. 16, pp. 40-42).
At the hearing, Holper requested
an opportunity to file a number of documents.
12, Ex. 16, p. 41).
(Docket
(Docket Entry #
The IJ allowed the late filing.
(Docket
Entry # 12, Ex. 16, p. 42).
On April 21, 2010, the IJ rendered a decision on the merits
hearing.
(Docket Entry # 12, Ex. 10).
In the decision, the IJ
found that petitioner met her burden of proof.
The IJ determined
that petitioner had not been convicted of an aggravated felony,
was credible in her testimony, and the positive factors
outweighed the negative factors in the case.
Ex. 10, p. 3).
The IJ noted that the
3
(Docket Entry # 12,
positive factors included
Thus, the delay from the start of petitioner’s ICE custody in
November 2009 up until April 2010 was due to petitioner’s efforts
to obtain representation and her counsel’s requests for
continuances.
5
family ties in the United States,4 41 years of residence in the
United States as an LPR and a strong work history.
found that removal would be a hardship.
The IJ also
(Docket Entry # 12, Ex.
10, pp. 3-6).
On June 29, 2010, DHS appealed the IJ’s decision to the
Board of Immigration Appeals (“BIA”), arguing that petitioner was
an aggravated felon and therefore ineligible for cancellation of
removal.
(Docket Entry # 12, Ex. 11).
In an October 18, 2010
decision, the BIA found that petitioner failed to meet her burden
of proof to show she was not an aggravated felon and remanded the
case for further proceedings consistent with the BIA’s decision
that petitioner was ineligible for cancellation of removal.
(Docket Entry # 12, Ex. 2).
On November 23, 2010, the IJ found that petitioner had not
met her burden of proving that the aggravated felony bar did not
apply to her case and entered an order to remove her from the
United States to the Dominican Republic.
12, p. 3).
(Docket Entry # 12, Ex.
On December 20, 2010, petitioner appealed the IJ’s
November 23, 2010 order to the BIA, contending that her offenses
did not constitute an aggravated felony.
(Docket Entry # 1, Ex.
14).
4
Petitioner has five adult children, 14 grandchildren and one
great grandchild, all of whom are United States citizens.
(Docket Entry # 1, Ex. 4, ¶ 8).
6
On February 1, 2011, Elizabeth Badger, Esq. of the Boston
University Litigation Program (“BULP counsel”)5 sent a letter to
respondent and Richard Lenihan, an ICE deportation officer,
requesting petitioner’s release “while the merits of her appeal
are adjudicated.”
(Docket Entry # 1, Ex. 3).
BULP counsel
stated in the letter that, if released, petitioner would comply
with any reasonable orders of supervision.
Ex. 3).
(Docket Entry # 1,
As set forth in the letter, BULP counsel argued that
petitioner’s prolonged detention was unreasonable.
also requested a response by February 18, 2011.
petitioner, she never received a response.
The letter
According to
(Docket Entry # 1, ¶
13).
On February 9, 2011, Holper requested on petitioner’s behalf
that the BIA grant an additional three week extension to submit
petitioner’s appellate brief.
(Docket Entry # 1, Ex. 16).
On
February 10, 2011, the BIA allowed the request and extended the
due date of petitioner’s and DHS’ briefs from February 22 until
March 15, 2011.
(Docket Entry # 1, Ex. 17).
Without awaiting a
decision from the BIA, petitioner filed this petition on March 2,
2011.
(Docket Entry ## 1 & 2).
DISCUSSION
I.
Jurisdiction
5
BULP counsel is petitioner’s counsel of record in these
proceedings.
7
Petitioner maintains that her continued detention violates
section 1226 “as limited by Constitutional Due Process concerns.”
(Docket Entry # 1, ¶ 31).
Section 1226 reads as follows:
The Attorney General’s discretionary judgment regarding the
application of this section shall not be subject to review.
No court may set aside any action or decision by the
Attorney General under this section regarding the detention
or release of any alien or the grant, revocation or denial
of bond or parole.
8 U.S.C. § 1226(e).
“[W]here Congress intends to preclude
judicial review of constitutional claims its intent to do so must
be clear.”
Webster v. Doe, 486 U.S. 592, 603 (1988).
A
challenge to the constitutionality of prolonged mandatory
detention is not a challenge to the Attorney General’s
“discretionary judgment” or “decision.”
510, 517 (2003).
Demore v. Kim, 538 U.S.
Following the majority in Demore,6 this court
therefore has the jurisdiction to hear petitioner’s challenge to
the constitutionality of her prolonged mandatory detention.
Demore, 538 U.S. at 517.
II.
Exhaustion of Administrative Remedies
Respondent argues that this court should deny the petition
because petitioner remains in removal proceedings and has not
received a final order.
(Docket Entry # 12).
6
Petitioner
The concurrence in Demore, however, disagrees on the issue of
jurisdiction and raised concern with the majority’s
interpretation of section 1226(e), finding “there is simply no
reasonable way to read this language other than as precluding all
review, including habeas review.” Demore, 538 U.S. at 537
(Kennedy, J., concurring).
8
contends that she exhausted her administrative remedies as a
result of her February 1, 2011 letter requesting release.
(Docket Entry # 1, Ex. 3).
The letter requested a response by
February 18, 2011, but petitioner failed to receive a response.
Accordingly, petitioner characterizes any further attempts to
exhaust administrative remedies as futile.
14-15).
(Docket Entry # 1, ¶¶
As of the March 2011 filing of the petition, the issue
of whether petitioner is an aggravated felon remained on appeal
before the BIA.7
(Docket Entry # 12, Ex. 14).
As previously explained, the BIA determined on October 18,
2010, that petitioner was an aggravated felon.
12, Ex. 2).
(Docket Entry #
After the remand and the IJ’s November 23, 2010
decision (Docket Entry # 12, Ex. 12), petitioner filed an appeal
with the BIA challenging the BIA’s prior determination.
Entry # 1, Ex. 14).
(Docket
As stated in 8 U.S.C. § 1252(d) (“section
1252(d)”), “A court may review a final order of removal only if-(1) the alien has exhausted all administrative remedies available
to the alien as of right.”
In the case at bar, petitioner challenges the length of her
detention as unreasonable and as a violation of her
constitutional rights to due process.
She seeks an immediate
release from custody subject to reasonable conditions of
supervision or a hearing requiring respondent to justify
7
The status of the appeal at present is unclear.
9
petitioner’s continued detention.
She therefore does not
challenge the merits of a final order of removal but rather seeks
both a determination regarding the constitutionality of her
prolonged detention and a release subject to supervisory
conditions similar to a bail or bond determination.
As explained
by the court in Campbell v. Chadbourne, 505 F.Supp.2d 191
(D.Mass. 2007), such a determination is not subject to section
1252(d)(1):
Thus, while exhaustion of administrative remedies is
required pursuant to 8 U.S.C. § 1252(d)(1) in order to
challenge final orders of removal, “this provision does not
cover challenges to preliminary custody or bond
determinations, which are quite distinct from ‘final
order[s] of removal.’”
Id. at 197 (quoting Gonzales v. O’Connell, 355 F.3d 1010, 1016
(7th Cir. 2004)).
Petitioner also correctly argues that requiring further
administrative exhaustion would be futile.
adequate basis to excuse exhaustion.
Futility provides an
See Sengkeo v. Horgan, 670
F.Supp.2d 116, 122 (D.Mass. 2009) (discussing futility as
exception to administrative exhaustion under section 1226);
accord Flores-Powell v. Chadbourne, 677 F.Supp.2d 455, 463
(D.Mass. 2010) (noting lack of exhaustion requirement under
section 1226 in certain circumstances).
The BIA lacks authority
to adjudicate constitutional questions.
Flores-Powell v.
Chadbourne, 677 F.Supp.2d at 463 (noting “the BIA’s lack of
authority to adjudicate constitutional questions”).
10
The BIA also
adheres to the position that section 1226(c) mandates detention
without bond and thus has “repeatedly upheld the denial of a bond
hearing.”
Sengkeo v. Horgan, 670 F.Supp.2d at 122.
Consequently, similar to the petitioner in Flores-Powell,
“exhaustion is excused by the BIA’s lack of authority to
adjudicate constitutional questions and its prior interpretation
of the mandatory detention statute.”
Flores-Powell v.
Chadbourne, 677 F.Supp.2d at 463.
Furthermore, where, as here, exhaustion is not explicitly
mandated, courts may hear unexhausted claims in “‘circumstances
in which the interests of the individual weigh heavily against
requiring administrative exhaustion.’”
Flores-Powell, 677
F.Supp.2d at 463 (citing Portela-Gonzalez v. Secretary of the
Navy, 109 F.3d 74, 77 (1st Cir. 1997), quoting McCarthy v.
Madigan, 503 U.S. 140, 146 (1992)).
Such circumstances exist
where “the situation is such that ‘a particular plaintiff may
suffer irreparable harm if unable to secure immediate judicial
consideration of his claim.’”
Flores-Powell, 677 F.Supp.2d at
463 (quoting McCarthy v. Madigan, 503 U.S. at 147).
liberty may be considered an irreparable harm.
A loss of
See
Flores-Powell v. Chadbourne, 677 F.Supp.2d at 463 (citing Bois v.
Marsh, 801 F.2d 462, 468 (D.C.Cir. 1986)).
In exercising the discretion to excuse exhaustion, the court
must consider whether the “twin purposes of protecting
11
administrative agency authority and promoting judicial
efficiency” are outweighed by a petitioner’s interest in
immediate adjudication of his claim by the court.
See Flores-
Powell, 677 F.Supp.2d at 464 (review of alien’s habeas petition
prior to a final order did not undermine the administrative
authority or judicial efficiency).
Here, requiring exhaustion of
the administrative process, where Congress has not explicitly
mandated such a requirement, would contribute to the delay
petitioner has already experienced in attempting to resolve her
immigration status.
See Vongsa v. Horgan, 670 F.Supp.2d 116, 123
(D.Mass. 2009) (excusing alien petitioner’s failure to exhaust
administrative remedies because exhaustion would be futile)
(citing McCarthy, 503 U.S. at 146-47) (noting that “requiring
resort to the administrative remedy may occasion undue prejudice
. . . [such as] an unreasonable or indefinite timeframe for
administrative action”).
In sum, this court finds that petitioner is not required to
exhaust administrative remedies and that such exhaustion is
futile.
III.
Applicability of the Mandatory Detention Statute
Respondent argues that the mandatory detention provisions of
section 1226 require that aliens, such as petitioner, be detained
during removal proceedings.
(Docket Entry # 12, p. 5).
Section
1226(c) states, “The Attorney General shall take into custody any
12
alien who . . . is deportable by reason of having committed any
offense covered in section 1227(a)(2) . . . (B) . . . of this
title.”
8 U.S.C. § 1226(c)(1)(B).
The specified subsection of
this mandatory detention statute provides:
Any alien who at any time after admission has been convicted
of a violation (or a conspiracy or attempt to violate) any
law or regulation of a State, the United States, or a
foreign country relating to a controlled substance (as
defined in section 802 of Title 21), other than a single
offense involving possession for one’s own use of 30 grams
or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
Section 1252(b)(9) channels all determinations of “‘law or
fact . . . arising from’” an action or proceeding “in connection
with the removal of an alien” to the court of appeals as opposed
to the district court.
Aguilar v. U.S. Immigration and Customs
Enforcement Div. of the Dep’t of Homeland Sec., 510 F.3d 1, 9
(1st Cir. 2007) (quoting section 1252(b)(9)).
This court
therefore lacks jurisdiction to determine whether petitioner’s
offenses fall within the reach of the foregoing mandatory
detention statute.
Flores-Powell, 677 F.Supp.2d at 468 (“under 8
U.S.C. § 1252(b)(9), the court lacks jurisdiction to decide
whether Flores’s offense is covered by the mandatory detention
statute, 8 U.S.C. § 1226(c)”) (citing Aguilar, 510 F.3d at 11).
A district court may, however, review a question that is
independent of removal in addition to those that cannot
effectively be handled through the available administrative
13
process.
See Flores-Powell, 677 F.Supp.2d at 467 (citing
Aguilar, 510 F.3d at 11); see also Hernandes v. Gonzales, 424
F.3d 42, 42-43 (1st Cir. 2005).
Here, as previously noted, the
petition only challenges the duration of petitioner’s detention
as unreasonable and unconstitutional.
IV.
Mandatory Detention and Due Process
Petitioner argues that the Due Process Clause of the Fifth
Amendment limits prolonged mandatory detention in removal
proceedings.
(Docket Entry # 1, p. 8).
As previously explained,
this court has jurisdiction to consider the constitutionality of
petitioner’s prolonged mandatory pre-removal detention.
See
Aguilar, 510 F.3d at 11; Hernandes v. Gonzales, 424 F.3d at 42.
Statutes that permit indefinite detention of an alien raise
serious constitutional due process concerns under the Fifth
Amendment.
See Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(“statute permitting indefinite detention of an alien would raise
a serious constitutional problem”).
“Under 1226(c), not only
does [pre-removal] detention have a definite termination point,
in the majority of cases it lasts for less than the 90 days we
considered presumptively valid in Zadvydas.”
529.
Demore, 538 U.S. at
That said, an unreasonable delay may raise constitutional
due process concerns whether it occurs before or after removal.
Flores-Powell, 677 F.Supp.2d at 471 (“‘“[u]nreasonable delay” can
be constitutionally problematic whether it occurs pre- or
14
post-removal’”) (quoting Vongsa, 670 F.Supp.2d at 123, discussing
Demore, 538 U.S. at 532 (Kennedy, J., concurring) (stating that
alien “could be entitled to an individualized determination as to
his risk of flight and dangerousness” where the government has
caused an “unreasonable delay”).
Consequently, courts in this
district and in the Sixth Circuit construe section 1226(c) “to
implicitly require that removal proceedings and the corresponding
detention be completed within a reasonable period of time, beyond
which detention may not continue without an individualized
determination of risk of flight and dangerousness.”
Flores-
Powell, 677 F.Supp.2d at 471 (citing Ly v. Hansen, 351 F.3d 263,
270 (6th Cir. 2003)).
In defining a reasonable time limitation for detention
during removal proceedings, the court in Flores-Powell, adhering
to a Sixth Circuit case, set out the following five factors to
assess prolonged mandatory detention:
(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence
for the crimes resulting in the deportable status; (3)
whether actual removal is reasonably foreseeable; (4)
whether the immigration authority acted promptly to advance
its interests; and (5) whether the petitioner engaged in
dilatory tactics in the Immigration Court.
Flores-Powell, 677 F.Supp.2d. at 471 (citing Ly v. Hansen, 351
F.3d at 271-272).
Examining these factors seriatim, petitioner’s
mandatory detention had lasted 15 months at the time she filed
this petition and presently stands at approximately 20 months.
15
In comparison, one court in this district determined that 19
months in detention exceeds the “limited period” of detention for
removal proceedings contemplated in Demore.
Geegbae v. McDonald,
2010 WL 4292734, at *2 (D.Mass. Nov. 1, 2010) (citing Demore, 538
U.S. at 531).
Another court found that detention of 27 months,
most of which was pursuant to section 1226(c), extended “far
beyond any reasonable period” and could not continue without a
bail hearing.
Bourguignon v. MacDonald, 667 F.Supp.2d 175, 176 &
184 (D.Mass. 2009).
Yet another court determined that 20 months’
detention could “hardly be characterized as ‘the brief period
necessary’ for removal proceedings” and ordered the government to
conduct a bond hearing.”
Vongsa, 670 F.Supp.2d at 127-129.
It
is also true, however, that a large part of the delay at the
outset resulted from petitioner seeking continuances to obtain
counsel and thereafter to file briefs.
See Demore, 538 U.S. at
530-531 (noting that the petitioner was “detained for somewhat
longer than the average-spending six months in INS custody prior
to the District Court’s order granting habeas relief, but [the
petitioner] himself had requested a continuance of his removal
hearing”).
The IJ also acted promptly and efficiently in
scheduling hearings, allowing only brief continuances and
rendering prompt decisions.
Second, petitioner argues that the disparity between the
one year of incarceration for her conviction and the length of
16
her ICE custody highlights the unreasonableness of her detention.
(Docket Entry # 1, ¶ 38).
Upon completion of her one year
sentence, petitioner was transferred to DHS custody.
Entry # 12, Ex. 7).
(Docket
The length of her civil detention therefore
exceeds the length of her incarceration.
See Flores-Powell, 677
F.Supp.2d at 472 (citing Ly, 351 F.3d at 271, as holding that 500
days of mandatory civil detention unreasonable as compared to
only 12 months of incarceration for underlying convictions).
Third, petitioner argues that her case will “continue to be
litigated for many more months” through appeals and actual
removal remains unforeseeable.
(Docket Entry # 1, ¶ 37).
The
Court in Zadvydas considered the constitutionality of
indefinitely detaining a person who could neither attain nor
foresee actual removal because the individual could not be
repatriated to another country.
Zadvydas, 533 U.S. at 690.
Here, although there will be an end point when the BIA renders a
decision, it is unclear whether or when that will take place.
It
is also unclear if petitioner will appeal the decision if
unfavorable.8
Fourth, the IJ acted promptly throughout the proceedings.
The BIA, however, took approximately four months to adjudicate
DHS’s appeal and petitioner’s December 2010 appeal to the BIA
8
This court takes judicial notice of the June 2, 2011 judgment
by the First Circuit in Ortega v. Holder, No. 10-2355, dismissing
the petition in that case for lack of jurisdiction.
17
remained pending as of the March 2011 filing of the petition.
See Flores-Powell v. Chadbourne, 677 F.Supp.2d at 473 (“‘although
an alien may be responsible for seeking relief, he is not
responsible for the amount of time that such determinations may
take’”) (quoting Ly, 351 F.3d at 272).
As the status of
petitioner’s appeal at this point in time remains unclear
clarification is necessary to allow this court to render a
decision on a more complete record.
This court must finally consider whether the petitioner
engaged in dilatory tactics during the removal proceedings.
A
large portion of the delay at the outset was attributable to
petitioner seeking counsel.
20).
(Docket Entry # 12, Ex. 16, pp. 1-
After the IJ’s favorable decision for cancellation of
removal, it was the government which appealed and triggered the
ongoing administrative appellate process.
Ex. 11).
(Docket Entry # 12,
The delay resulting from the first appeal and remand up
to the point when petitioner filed the second appeal is not
attributable to petitioner let alone any dilatory tactics.
Considering and weighing the foregoing factors, the
detention at this juncture appears unconstitutional in violation
of petitioner’s Fifth Amendment rights and a bail hearing
warranted if the BIA has not yet rendered a decision.
Respondent
is therefore ordered to file a status report on or before
September 21, 2011, updating what, if any, action has been taken
18
in the BIA proceeding and whether the BIA has rendered a decision
on the second appeal.
See, e.g., Flores-Powell, 677 F.Supp.2d at
461 (noting prior orders for the respondent to file weekly
updates regarding the status of the petitioner’s appeal before
the BIA).
In the event no action has been taken, this court will
set a bail hearing to determine petitioner’s risk of flight and
dangerousness.
See, e.g., id. at 479.
CONCLUSION
Respondent is ORDERED to file a status report of the
progress of the BIA proceeding to date on or before September 21,
2011.
Respondent’s request to deny the petition (Docket Entry #
12, p. 17) is held in abeyance pending receipt of the status
report.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
19
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