Respondents Return in Response to Order to Show Cause

More documents

Recommendations

Info

Case5:13-cv-00512-EJD Document12 Filed02/15/13 Page4 of 10123456expedited processing of her U visa application and determined her to be prima facie eligible forU nonimmigrant classification pursuant to 8 C.F.R. 214.14(b). Cormier Decl. 3 and 5 and Ex.2. That eligibility classification expires on the earliest of: 1) its revocation, 2) a final decision onher U visa application, or 3) July 31, 2013. Cormier Decl Ex. 2. Mejia is scheduled for a hearingbefore an Immigration Judge on March 26, 2013. Cormier Decl. 6 and Ex. 3. In the meantime,she remains detained pursuant to § 1226(c).78III.ARGUMENTPetitioner is classified under federal immigration law as a criminal alien. As such, she is910111213141516171819202122232425considered inadmissible pursuant to 8 U.S.C. § 1182(a)(2). Such aliens “shall” be taken intocustody and can be released only under certain very limited circumstances which do not applyhere. 8 U.S.C. §1226(c). This is different from the discretionary detention rules applicable toaliens arrested and detained pursuant to warrants issued by the Attorney General, or aliens whohave received a final order of removal. See 8 U.S.C. § 1226(a) and 8 U.S.C. § 1231(a)(6). Thestatute expressly states that “[n]o court may set aside any action or decision by the AttorneyGeneral under this section regarding the detention or release of any alien or the grant, revocation,5or denial of bond or parole.” 8 U.S.C. § 1226(e).A. Section 1226(c) constitutionally mandates Petitioner’s detention during thependency of her removal proceedings.Petitioner argues that neither the statute nor the Constitution authorize the AttorneyGeneral to hold her in prolonged detention without affording her a bond hearing at which thegovernment must “prove by clear and convincing evidence that she is either a flight risk or adanger to the community.” Petition 29. Section 1226(c) does not expressly limit the length ofthe detention for criminal aliens.The Supreme Court has ruled that the mandatory detention provision of § 1226(c) – i.e.,“detention of deportable criminal aliens pending their removal proceedings” – is constitutional.2627285The Supreme Court has held that district courts do have jurisdiction over habeaspetitions challenging the statutory framework of § 1226(c), but not challenges to discretionarydecisions of the Attorney General within that framework. Demore v. Kim, 538 U.S. 510, 516-517 (2003).RESPONDENTS’ RETURN IN RESPONSE TO ORDER TO SHOW CAUSE AND PETITION FOR HABEAS CORPUSCase No. C 13-0512 EJD 4
Case5:13-cv-00512-EJD Document12 Filed02/15/13 Page5 of 10123456789101112131415161718192021222324252627Demore v. Kim, 538 U.S. 510, 527-528 (2003) (emphasis in original). The Court distinguishedits prior decision in Zadvydas v. Davis, 533 U.S. 678 (2001), which related to detention of aliensunder 8 U.S.C. § 1231, which governs detention following a final order of removal. Demore,538 U.S. at 526-527. “[P]ost removal-period detention, unlike detention pending adetermination of removability . . ., has no obvious termination point.” Id. at 529 (emphasis inoriginal), quoting Zadvydas, 533 U.S. at 697. The Supreme Court did note that most cases ofdetention during removal proceedings last shorter times than Petitioner’s detention here, but itdid not set a numerical limit on the permissible length of detention during such proceedings. Seeid. at 530-531. Instead, it held that “[d]etention during removal proceedings is a constitutionallypermissible part of” the removal process. Id. at 531.Petitioner argues that the “Ninth Circuit has repeatedly construed immigration detentionstatutes as implicitly providing for bond hearings to avoid the due process concerns otherwiseposed by prolonged detention.” Petition 31. None of Petitioner’s cited cases discuss thesituation before the Court now: a criminal alien, who has never had lawful permanent residentstatus, who is detained during the pendency of her removal proceedings.Petitioner cites to Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005), for theproposition that mandatory detention is authorized only during “expeditious removalproceedings” and thus a bond hearing was required for a petitioner who had been detained forover two and a half years. The Ninth Circuit, in its very short majority opinion, found that it was“constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfullyadmitted resident aliens who are subject to removal.” Id. at 1242 (emphasis added). Though themajority opinion provides virtually no factual background or analysis, it appears from theconcurring opinion that, while the case is discussed in terms of detention under §1226(c), Tijaniactually had progressed past a final removal order. Id. at 1246, 1248, n. 7. (noting that Tijani hada petition for review of the removal order pending before the Ninth Circuit and that he hadalready received a BIA decision finding him removable). In contrast, Mejia is not a lawfulpermanent resident, and her removal proceedings are still in progress before the agency.28RESPONDENTS’ RETURN IN RESPONSE TO ORDER TO SHOW CAUSE AND PETITION FOR HABEAS CORPUSCase No. C 13-0512 EJD 5
Page 1 and 2: Case5:13-cv-00512-EJD Document12 Fi
Page 3: Case5:13-cv-00512-EJD Document12 Fi

Respondents Return in Response to Order to Show Cause

Create successful ePaper yourself

Delete template?

Save as template?