Fatty v. Duke et al

Filing 33

ORDER denying Respondents' 31 Motion for Clarification and/or Reconsideration; ordering Respondents to proceed with the bond hearing date as scheduled, signed by Judge James L. Robart for Judge Marsha J Pechman. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BENGALLY FATTY,
Petitioner,

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v.

CASE NO. C17-1535-MJP
ORDER DENYING MOTION FOR
CLARIFICATION AND/OR
RECONSIDERATION

KIRSTJEN M. NIELSEN, et al.,
Respondents.

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THIS MATTER comes before the Court on Respondents’ Motion for Clarification and/or
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Reconsideration. (Dkt. No. 31.) The Court clarifies its May 6, 2018 Minute Order as follows:
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The Court ordered that Petitioner be afforded a bond hearing pending resolution of his 28
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U.S.C. § 2241 immigration habeas petition. (See Dkt. No. 30.) In so doing, the Court
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conclusively resolved the merits of his petition as it relates to his request for a bond hearing. The
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Court finds that Petitioner is eligible for a bond hearing for the following reasons:
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First, Petitioner faces a final order of removal and is being detained under 8 U.S.C. §
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1231(a)(6), which authorizes the detention of non-citizens who have been ordered removed
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beyond the 90-day removal period. While Respondents contend that Diouf II should be regarded
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ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION - 1

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as effectively overruled by the Supreme Court’s decision in Jennings v. Rodriguez, 138 S.Ct. 830

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(2018), the Court disagrees, and joins those district courts that have found that Diouf II remains

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controlling. See, e.g., Baños v. Asher, No. 16-1454JLR, 2018 WL 1617706 (W.D. Wash. Apr.

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4, 2018); Ramos v. Sessions, 293 F. Supp. 3d 1021 (N.D. Cal. 2018); Mercado-Guillen v.

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Nielsen, 2018 WL 1876916 (N.D. Cal. Apr. 19, 2018); Borjas-Calix v. Sessions, 2018 WL

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1428154 (D. Ariz. Mar. 22, 2018). In Jennings, the Supreme Court explicitly contrasted §§ 1225

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and 1226—the statutes at issue in that case—with § 1231(a)(6)—the statute at issue here and in

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Diouf II, and noted that §§ 1225 and 1226 use the mandatory language “shall,” while §

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1231(a)(6) uses the discretionary language “may.” See Jennings, 138 S.Ct. at 843. Because

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Jennings “at a minimum . . . left for another day the question of bond hearing eligibility under [§]

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1231(a),” it is not “clearly irreconcilable” with the Ninth Circuit’s holding in Diouf II, which

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remains binding circuit authority. Ramos, 293 F. Supp. 3d at 1027; see also Lair v. Bullock, 697

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F.3d 1200, 1207 (9th Cir. 2012) (holding that prior circuit precedent is binding unless it is

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“clearly irreconcilable” with intervening higher authority). Here, Petitioner falls directly within

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the category of non-citizens held pursuant to § 1231(a)(6), and his eligibility for a bond hearing

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is therefore governed by Diouf II.

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Second, while Respondents contend that Petitioner’s removal is “imminent,” such that he

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is not entitled to a bond hearing under Diouf II, whether Petitioner is to be removed at all is

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presently in dispute. Further, more than six months have elapsed since Respondent first made

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this argument, yet Petitioner remains in custody. (See Dkt. No. 14 at 4); see also Mercado-

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Guillen, 2018 WL 1876916, at *3 (“Respondents’ contention that ‘Petitioner has not and cannot

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show that he is not subject to removal in the reasonably foreseeable future’ is not sufficient to

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ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION - 2

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demonstrate that [Petitioner’s] removal is imminent, given that more than two months have

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elapsed since Respondents first made that argument . . .”).

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Respondents have informed the Court that Petitioner’s bond hearing is scheduled for May

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31, 2018. (Dkt. No. 32.) The Court hereby DENIES Respondents’ Motion for Reconsideration

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and ORDERS Respondents to proceed with the bond hearing date as scheduled.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated May 24, 2018.

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ORDER DENYING MOTION FOR CLARIFICATION AND/OR RECONSIDERATION - 3