Uttecht et al v. Napolitano et al

Filing 17

MEMORANDUM AND ORDER regarding MOTION for Preliminary Injunction 3 . On or before December 3, 2012, defendants shall provide a bond hearing to determine whether continued encroachment on the plaintiffs liberty interests is necessary in light of any credible government assertions that plaintiff Sanjuana Uttecht is a danger to the community or is a flight risk. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
THOMAS UTTECHT, SANJUANA
UTTECHT, BENJAMIN UTTECHT,
SILAS UTTECHT, ASHER UTTECHT,
PHOEBE UTTECHT, LEAH UTTECHT,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
JANET NAPOLITANO, Secretary
)
Department of Homeland
)
Security; SCOTT BANIECKE,
)
Field Office Director,
)
Immigration and Customs
)
Enforcement; MARK FOXALL,
)
Director, Department of
)
Corrections, Douglas County, )
ERIC HOLDER, Attorney General )
of the United States,
)
)
Defendants.
)
______________________________)

8:12CV347

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
for an injunction ordering the release of plaintiff Sanjuana
Uttecht (“Uttecht”) or in the alternative a bond hearing (Filing
No. 3).

Defendants challenge the Court’s jurisdiction as well as

the merits.

The Court finds that Uttecht’s detention is not so

prolonged and foreseeably indefinite as to warrant an order of
release.

However, the Court finds that Uttecht’s detention has

continued for a substantial period without procedures adequate to
ensure protection of her liberty interests, and that a bond
hearing should be held to address the appropriateness of her
release.

I. Factual Background
Uttecht was brought into the United States at the age
of six.

At some point she was taken to Mexico where she was

subject to serious abuse that was facilitated by her mental
disabilities.

She eventually returned to the United States

illegally, married a U.S. citizen, and established a family and
community ties in Norfolk, Nebraska.

After a dispute with her

mother-in-law, Uttecht was arrested and eventually turned over to
Immigration and Customs Enforcement.

On March 2, 2012, Uttecht

was served with a notice that her previous removal order had been
reinstated.

An appeal of the reinstatement order is currently

pending before the Eighth Circuit, but no stay of removal was
granted in connection with those proceedings.

However, Uttecht

has also requested withholding of removal, which has delayed her
actual deportation pending a final administrative order.

On July

23, 2012, as part of an internal custody review process,
Immigration and Customs Enforcement (“ICE”) issued a finding that
continued custody was warranted.
II. Jurisdiction
This motion does not concern the underlying merits of
Uttecht’s pending request for withholding of removal.

Rather,

plaintiffs are challenging the continued detention of Uttecht
while she awaits resolution of her request and the ultimate
removal that might follow.

District courts have jurisdiction to

hear such challenges under 28 U.S.C. § 2241 -- the Courts’ power
to grant writs of habeas corpus.

Despite the dwindling

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jurisdiction of the district courts in immigration matters, the
Supreme Court has explicitly recognized the continued
jurisdiction of the courts where, as here, continued detention
without due process raises constitutional concerns.

Demore v.

Kim, 538 U.S. 510, 517 (2003) (addressing 8 U.S.C. § 1226(c));
Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001) (addressing 8
U.S.C. § 1231).
III. Analysis
A.
“Where an alien falls within this statutory scheme can
affect whether his detention is mandatory or discretionary, as
well as the kind of review process available to him if he wishes
to contest the necessity of his detention.”

Prieto–Romero v.

Clark, 534 F.3d 1053, 1057 (9th Cir. 2008).

Defendant asserts

that Uttecht is being detained pursuant to 8 U.S.C. § 1231(a)(5).
However, while § 1231(a)(5) pertains to the reinstatement of
Uttecht’s prior removal order, the language of that provision
does not authorize her detention.

The authority for Uttecht’s

detention must be derived from § 1231(a)(6) authorizing “removal
period” and post “removal period” detention or § 1226(a)
authorizing detention “pending a decision on whether the alien is
to be removed.”

Authorization for detention shifts from

§ 1226(a) to § 1231(a)(5) at the critical moment when the
“removal period” begins as determined by § 1231(a)(1)(B):
The removal period begins on the
latest of the following:

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(I) The date the order of removal
becomes administratively final.
(ii) If the removal order is
judicially reviewed and if a court
orders a stay of the removal of the
alien, the date of the court’s
final order.
(iii) If the alien is detained or
confined . . . the date the alien
is released from detention or
confinement.
Uttecht’s progression through this round of removal
proceedings has been somewhat unusual, making a determination of
the start date unusually complicated.

The record indicates that

no stays have been issued and that Uttecht has not yet been
released.

Thus, the start date must hinge on the date on which

Uttecht’s order of removal is administratively final.

Because

Uttecht was previously removed to Mexico pursuant to a 1998
removal order, the Attorney General was able to simply
“reinstate” that order without additional review of her status.
8 U.S.C. § 1231(a)(5).

Typically, the date of reinstatement

serves as the date of the final order of removal, starting the
removal period pursuant to 8 U.S.C. 1231(a)(1)(A).1
However, Uttecht’s removal is currently delayed while
her request for withholding of removal proceeds through the
administrative process.

Thus, the reinstated order of removal

1

See, e.g., Molina v. Holder, 8:09CV283, 2010 WL 445918,
*5-*6 (D. Neb. Jan. 26, 2010) (applying § 1231(a)(1)(B)(I) to
trigger removal period by reinstatement order); RodriguezCarbantes v. Chertoff, C06-1517Z, 2007 WL 1268500 (W.D. Wash. May
1, 2007) (“The removal period for reinstated removal orders is
triggered by the events listed in [§ 1231].”).
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does not constitute a final administrative order of removal in
this case.2

Rather, the administrative order in her case will

only be final when the Board of Immigration Appeals affirms the
order or when the period in which such an appeal can be requested
expires.

8 U.S.C. § 1101(a)(47)(B).

Since Uttecht’s removal

period has not yet started, the authority for her detention, for
the time being, lies in § 1226(a).
B.
The question for the Court is whether the procedural
protections in place for Uttecht are adequate given the duration
of her detainment.

While the Supreme Court has addressed the due

process limitations of § 1231 post-removal-period detention in
Zadvydas and the short period of § 1226(c) detention authorized
for criminal aliens in Demore, it has not directly addressed
§ 1226(a) detention for aliens “pending a decision on whether the
alien is to be removed.”

The Ninth Circuit has addressed the

provision at issue in the present case but the alien in that case
had been detained for a much longer period.

Casas-Castrillon v.

Dept. of Homeland Sec., 535 F.3d 942 (9th Cir. 2008).

2

See Pierre v. Sabol, 1:11-CV-2184, 2012 WL 1658293, *4
(M.D. Pa. May 11, 2012) motion for relief from judgment denied,
1:11-CV-2184, 2012 WL 2921794 (M.D. Pa. July 17, 2012)
(“Petitioner still has an application for withholding of removal
pending before the IJ, which means a decision has not yet been
made on whether he will be removed from the United States. It
also means the reinstated order of removal has not yet become
administratively final because the IJ has yet to rule on his
application.”); see also, Bah v. Cangemi, 489 F.Supp.2d 905, 91518 (D. Minn. 2007) (analyzing a similar circumstance in which the
“removal order is no longer administratively final”).
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Here, Uttecht’s eight-month, pre-removal-period
detention clearly implicates concerns over primarily procedural
due process.

Zadvydas, 533 U.S. 690 (analyzing whether “adequate

procedural protections” were in place to ensure that the
government’s stated reasons for continued detention were fairly
weighed against the “individual’s constitutionally protected
interest in avoiding physical restraint”).

Her detention is

simply not so far beyond the Demore Court’s timing factors to
indicate the kind of major violation of substantive due process
that would warrant an order of immediate release.3
The defendants contend that the internal review process
provides sufficient process.

Possibly because ICE understood

Uttecht’s detention to be pursuant to § 1231, Uttecht’s file was
reviewed -- ostensibly giving consideration to a number of
factors weighing on her likelihood to be a flight risk or to
commit crimes while on release.

However, Zadvydas and Casas-

Castrillon both questioned the adequacy of the administrative
review process in protecting the rights of both post-removalorder and pre-removal-order detainees, especially as compared to
a bond hearing before a neutral decision maker.

Zadvydas, 533

U.S. at 692 (“[T]he sole procedural protections available to the
alien are found in administrative proceedings, where the alien
3

“The primary question for the Court [in Demore] was not
whether detention . . . violated substantive due process because
the alien’s detention was indefinite [as it was under Zadvydas],
but rather whether procedural due process required the government
to make an individualized finding that detention was justified by
a legitimate government interest.” Casas-Castrillon, 535 F.3d at
949.
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bears the burden of proving he is not dangerous, without . . .
significant later judicial review.”); Casas-Castrillon, 535 F.3d
at 951 (“This review falls far short of the procedural
protections afforded in ordinary bond hearings, where aliens may
contest the necessity of their detention before an immigration
judge and have an opportunity to appeal that determination to the
BIA.”); see also, Diouf v. Napolitano, 634 F.3d, 1081, 1091 (9th
Cir. 2011).

(“[A]t the 180-day juncture, the DHS regulations are

appropriate but not alone sufficient to address the serious
constitutional concerns raised by continued detention [under
§ 1231].”).
Like the internal reviews in the above cases, the
review of Uttecht’s detention status lacked a personal interview,
a genuine opportunity to contest the underlying facts on which
the determination was made, a genuine opportunity to contribute
to the record, and the right to an administrative appeal.
Uttecht has not been provided a bond hearing.
Finally, the Court must consider the duration of the
detention.

In Zadvydas, the Court used the “period reasonably

necessary to secure removal” as a benchmark for the
constitutionality of the duration of post-removal-period
detention.

Zadvydas, 533 U.S. at 699.

Recognizing that while

Congress probably did not expect all removals to be effectuated
within 90 days of the final order of removal, it likely believed
that detention longer than six months is generally unwarranted.
Id. at 701.

Regardless, the liberty interest becomes more
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substantial as the “period of . . . confinement grows.”

The

Court took a similar tack in Demore, finding that pre-finalremoval-order detention of six months was only a little more than
average for aliens that appeal their removal orders and was less
troublesome because the detainee requested a continuance that
delayed the proceedings for a month.

Demore, 538 U.S. at 530-31,

n.15 (“[T]he detention at stake . . . 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.”).
Central to this analysis is the idea that detention
must “bear a reasonable relation to the purpose for which the
individual was committed.”

Zadvydas, 533 U.S. at 690 (internal

quotation marks and alterations omitted).

Part of that

relationship is the time necessary to complete that purpose.

In

Zadvydas, it was clear that the purpose -- removal -- was “no
longer practically attainable,” diminishing the justification for
prolonged detention.

Id.

In Demore, the administrative removal

proceedings were delayed but ongoing and the detainee was being
removed because of his criminal history.

This presented a more

robust flight risk rationale and a more pronounced public safety
rationale for his six-month detention.

In navigating these two

guideposts to determine the standard under § 1226(a), the Ninth
Circuit noted that § 1226(c) is a narrower grant of detention
authority for the purpose of taking into custody and removing
criminal aliens on an expedited basis.
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Casis-Castrillon, 535

F.3d at 951.

The language of § 1226(a) allows detention of any

alien “pending a decision on whether the alien is to be removed.”
However, the court still found that the alien’s detention under
§ 1226(a) for seven years, “if unaccompanied by meaningful,
individualized review, would clearly be a far longer period of
detention than the ‘brief’ period of mandatory detention during
administrative review that the Supreme Court approved in Demore.”
Id. at 949-50.

The Court ordered a bond hearing.

Section 1226(a) may authorize a longer period of
detention but only if procedural safeguards protect the
detainee’s liberty interests.

Zadvydas, 533 U.S. at 688

(describing due process limitation as a limit of the authority
granted by statute).

In the present case, they do not.

Uttecht

has been detained without an individualized opportunity to
genuinely participate in the determination of whether she is a
danger to the community or a flight risk.

Her detention has

lasted nearly eight months, well beyond the six-month period
found constitutional in Demore.

The additional two months is

significant because the Court in Demore anchored its finding of
constitutionality to the average time of the administrative
appeals process and the fact that the plaintiff in that case
asked for a continuance that delayed the proceedings.

Uttecht’s

detention has lasted three months longer than the average
described in Demore.

Further, though her colorable appeals and

request for withholding have delayed a final administrative
order, the record does not indicate that Uttecht has requested
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any continuances or that she has acted in bad faith to delay the
termination of the requisite administrative proceedings.

In

addition, the appeals process could well extend these proceedings
for several more months or even a year.

Finally, though Casas-

Castrillon dealt with a much longer detention, it does not
preclude finding a violation in much shorter periods.
Though the government has statutory authority to detain
Uttecht under § 1226(a) until there is a final order of removal,
given the length of her detention, she is entitled to more than
discretionary review of her file.

Due process requires the

opportunity to “contest before a neutral decision maker whether
the government’s purported interest is actually served by
detention in this case.”

Casas-Castrillon, 535 F.3d at 949.

A

bond hearing weighing the factors set out by the Board of
Immigration Appeals is suitable for this purpose.
Guerra, 24 I. & N. Dec. 37 (BIA 2006).

See In Re

Accordingly,

IT IS ORDERED that on or before December 3, 2012,
defendants shall provide a bond hearing to determine whether
continued encroachment on the plaintiff’s liberty interests is
necessary in light of any credible government assertions that
plaintiff Sanjuana Uttecht is a danger to the community or is a
flight risk.
DATED this 1st day of November, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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