Вы находитесь на странице: 1из 8

U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net


A , F OHS/ICE Office of Chief Counsel - FLO
A -863 3250 N. Pinal Parkway Ave.
OHS/ICE Florence, AZ 85132
3250 N PINAL PKWY AVE
P.O. BOX 6900
FLORENCE, AZ 85132

Name: A F A 863

Date of this notice: 5/23/2017

Enclosed is a copy of the Board's decision in 'the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms an Immigration Judge's
decision ordering that you be removed, any petition for review of the attached decision must
be filed with and received by the appropriate court of appeals within 30 days of the date of
this decision.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Greer, Anne J.
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: F-A-, AXXX XXX 863 (BIA May 23, 2017)
U:S. Depar.tment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 863 - Florence, AZ Date:


MAY 2 3 2017
In re: F A

Immigrant & Refugee Appellate Center, LLC | www.irac.net


IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Pro se

APPLICATION: Redetermination of custody status

The applicant, a native and citizen of Morocco, appeals from November 30, 2016, bond order
of the Immigration Judge denying his request for a redetermination of his custody status based on
a lack of jurisdiction. The record will be remanded for further proceedings.

The Board reviews an Immigration Judge's findings of fact under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and
judgment - and all other issues in appeals from decisions of Immigration Judges - de novo.
8 C.F.R. 1003.l(d)(3)(ii).

The issue in this case is whether the applicant is among the members of the class of detained
aliens recently determined by the United States Court of Appeals for the Ninth Circuit to be entitled
to a custody redetermination hearing every 6 months to determine if they remain a danger to the
community or a flight risk. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted
sub nom. Jennings v. Rodriguez, No. 15-1204, --- S.Ct. ----, 2016 WL 1182403 (Mem) (U.S.
June 20, 2016) (Rodriguez Ill). The Immigration Judge determined that the applicant, because he
is subject to reinstatement of a prior removal order pursuant to section 241(a)(5) of the Immigration
and Nationality Act, 8 U.S.C. 1231(a)(5), is being detained under section 241(a) of the Act and
is thus not a member of this class. See id. at 1086 (''the 123l(a) subclass does not exist").
However, we are persuaded by the clear language in Rodriguez III that the applicant, whose
removal is subject to further administrative review before an Immigration Judge on his application
for withholding of removal, is not being detained pursuant to section 241(a) of the Act, and he is
thus entitled to the bond redetermination hearing mandated by that decision. A brief review of the
Rodriguez litigation and the Ninth's Circuit's recent holding will demonstrate why this is the case.

In September 2012, the United States District Court for the Central District of California
Western Division issued an Order and Preliminary Injunction in Rodriguez v. Robbins,
No. 2:07-CV-03239 (C.D. Cal. Sep. 13, 2012), aff'd, 715 F.3d 1127 (9th Cir. 2013) (Rodriguez//),
requiring the government to identify all class members detained pursuant to 8 U.S.C. 1226 and
1225(b) of the Act and to provide each of them with a bond hearing before an Immigration Judge
with power to grant their release. See also Rodriguez v. Hayes (Rodriguez/), 578 F.3d 1032 (9th
Cir. 2009), amended by 591 F.3d 1105 (9th Cir. 2010).

Cite as: F-A-, AXXX XXX 863 (BIA May 23, 2017)
863

Subsequently, in August 2013, the United States District Court for the Central District of
California Western Division issued an Order and Permanent Injunction clarifying that detainees
incarcerated for re[in]statement under 8 U.S.C. 1231(a)(5), detainees held for proceedings
initiated by an administrative removal order under 8 U.S.C. 1228(b) (expedited removal), and
detainees held under the general immigration statute after entering the United States through the
Visa Waiver Program are also members of the previously certified class of individuals entitled to

Immigrant & Refugee Appellate Center, LLC | www.irac.net


a bond hearing. See Rodriguez v. Holder, No. 2:07-CV-03239, 2013 WL 5229795 (C.D. Cal. Aug.
6, 2013). The court indicated that members of all four subclasses -those detained under 8 U.S.C.
1225(b), 1226(a), 1226(c), and 1231 - should be afforded bond hearings after 6 months of
detention, consistent with Rodriguez II.

The appeal of the District Court's decision in Rodriguez v. Holder, supra, was considered in
Rodriguez Ill, in which the Ninth Circuit affirmed the first three subclasses but not the subclass
detained pursuant to 123l(a). In Rodriguez III, the Ninth Circuit noted that ''the class is defined,
in relevant part, as non-citizens who are detained 'pending completion of removal proceedings,
including judicial review."' Id at 1086. The Ninth Circuit stated that the petitioners in that case
had described the 123 l(a) subclass as consisting of individuals who had received a stay of
removal from the Board or a court. However, the Ninth Circuit stated that, if an individual's
removal has been stayed "pending further administrative review, then the order of removal is not
yet 'administratively final."' Id The Ninth Circuit concluded that 123 l(a) was inapplicable to
an individual whose removal has been stayed. Id. at l085-86. The Ninth Circuit cited its previous
precedents holding that 123l(a) does not apply while administrative proceedings or judicial
review are pending. See Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009);
Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008); Casas-Castrillon v. DHS, 535 F.3d
942, 947 (9th Cir. 2008).

We conclude that the clear language of Rodriguez III noted above compels us to reject the
interpretation of the applicant's class membership adopted by the Immigration Judge. We note
that the Immigration Judge did not claim in his order that the removal of individuals such as the
applicant would not be stayed while an Immigration Judge considered an application for
withholding of removal. This is the central point underlying the Ninth Circuit's determination that
the 123l(a) subclass does not exist. In this regard, the Ninth Circuit states that individuals with
pending administrative proceedings or judicial review are not being detained pursuant to
123l(a). See Rodriguez III, supra, at 1086; see also Owino v. Napolitano, supra;
Prieto-Romero v. Clark, supra; Casas-Castrillon v. DHS, supra. Further, as the Rodriguez III
court found the general detention statute at 1226(a) governs the 1225(b) and 1226(c) subclass
members, 1226(a) would also govern those individuals whose removal has been stayed pending
further administrative review, such as the applicant, once they had been detained for 6 months.
See Rodriguez III, supra, at 1079, 1082; see also Rodriguez II, supra, at 1139 (noting that its
decision in Diouf v. Napolitano, 634 F.3d 1081, 1086 (9th Cir. 2011), "strongly suggested that
immigration detention becomes prolonged at the six-month mark regardless of the authorizing
statute").

Thus, for the aforementioned reasons, we will remand the record for the Immigration Judge to
provide the applicant with a bond hearing. The following order will be entered.

Cite as: F-A-, AXXX XXX 863 (BIA May 23, 2017)
A 863

ORDER: The record is remanded for further proceedings consistent with the foregoing order.

/ a ,
.

_j.'
THF{/ FOR BOARD

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Board Member Garry D. Malphrus respectfully dissents without separate opinion.

Cite as: F-A-, AXXX XXX 863 (BIA May 23, 2017)
,.
' .
)

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
FLORENCE IMMIGRATION COURT
3260 NORTH PINAL PARKWAY
FLORENCE, AZ 85132

Immigrant & Refugee Appellate Center, LLC | www.irac.net


IN THE MATTER OF: ) BOND PROCEEDINGS
)
A ) FILE NO.: 863
F )
)
APPLICANT ) DATE: JAN - 4 2017

FOR THE APPLICANT: FOR THE DEPARTMENT:


F A i, Pro Se Robert Lundberg, Esq.
c/o OHS/ICE Dep't. of Homeland Security
3250 North Pinal Parkway 3250 North Pinal Parkway
Florence, Arizona 85132 Florence, Arizona 85132

BOND MEMORANDUM AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Applicant is a forty-two (42) year-old native and citizen of Morocco. [Dep't Exh.
List for Bond Hr'g, Attach. A, Fonn I-213.] On October 15, 2007, the previously
assigned Immigration Judge in Miami, Florida, ordered Applicant removed in absentia to
Morocco [Dep't Exh. List for Bond Hr'g, Attach. F, IJ Order (Oct. 15, 2007).] In 2011,
Applicant filed a Motion to Reopen those proceedings, but the motion was denied. [Id. at
Attach. F, IJ 14, 2011).] Applicant was subsequently removed from the
Order (July
United States. On April 4, 2016, Applicant reentered the United States at or near Sasabe,
Arizona, without inspection or permission and was apprehended by Border Patrol. [Id. at
Attach. A.] On April 19, 2016, the Department of Homeland Security ("DHS" or "the
Department") reinstated Applicant's prior order of removal. [Id. at Attach. C.] Having
expressed a fear of return to Morocco, Applicant was referred to this Court after a
detennination by an Asylum Officer that he has a reasonable fear of return. [Exh. 1, Form
I-863.] On October 28, 2016, Applicant requested a custody redetermination hearing.
[Appl. Request for Custody Redetennination Hr'g Pursuant to Rodriguez III.] For the
foregoing reasons, the Court finds that it does not have jurisdiction over Applicant's
custody matter.

II. JURISDICTION & AUTHORITY

Applicant requests a Rodriguez custody redetermination hearing. This Court will


briefly explain the history of the Rodriguez mandate to conduct custody redetermination
,.

A F
863

hearings for applicants in withholding-only proceedings as it relates to this Court's


finding that it lacks jurisdiction or authority.

A. Rodriguez v. Holder
On August 6 , 2013, the United States District Court for the Central District of
California, Western Division, entered a permanent injunction requiring Immigration

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Judges ("IJ") to provide class members with custody redetermination hearings in which
the Government must demonstrate by clear and convincing evidence that class members
are a danger to the community or a flight risk. Rodriguez v. Holder, No. 2:07-3239 TJH
RNBX, 2013 WL 5229795 ( C.D. Cal Aug. 6 , 2013), affd in part, rev'd in part sub nom.
Rodriguez v. Robbins, 804 F.3d 106 0 (9th Cir. 2015). The District Court defined the class
as, inter alia, aliens "detained for longer than six months pursuant to one of the general
immigration detention statutes pending completion of removal proceedings including
judicial review." Id., at * 1 (emphasis added).

The District Court defmed "removal proceedings," not as "refer[red] to [] in 8


U.S.C. 1229a, but to any proceedings to determine whether persons detained pursuant
to the general immigration statutes, [] will be removed from the United States." Id., at *2.
Class members were subdivided dependent upon the "general immigration detention
statute[]" they were subjected to. The District Court considered four immigration
detention statutes: 8 U.S.C. 1225(b), 1226(a), 1226(c), 1231(a). In further explaining
the class members in 8 U.S.C. 123 l(a), the District Court expressly ordered and
included "detainees incarcerated for restatement [sic] under 8 U.S.C. 123l(a)(5),
detainees held for proceedings initiated by an administrative removal order under 8
U.S.C. 1228(b)[,] and detainees held under the general immigration statutes after
entering the United States through the Visa Waiver Program." Id., at *2.

B. Rodriguez v. Robbins
The Ninth Circuit, in Rodriguez v. Robbins ("Rodriguez !If'), subsequently
affirmed part of the District Court's order and reversed part. 804 F.3d 106 0 (9th Cir.
2015). The Ninth Circuit first determined that its prior ruling that "non-citizens subject to
prolonged detention under 1226(c) [and 1225(b)] are entitled to bond hearings-[was]
a pure question of law .... Therefore, [the Ninth Circuit] follow[s] Rodriguez II as law of
the case and law of the circuit." Id, at 1080. The Ninth Circuit then upheld the District
Court's order requiring custody redetermination hearings for aliens detained under 8
U.S.C. 1226(a) pursuant to its authority in Casas-Castrillon. 535 F.3d 942 (9th Cir.
2008) (detention authority shifts to INA 236(a) when detention becomes prolonged).

However, the Ninth Circuit reversed the District Court's grant of summary
judgment and permanent injunction pertaining to subclass members detained pursuant to
8 U.S.C. 123 l{a), finding that the "123 l{a) subclass does not exist." Id, at 1086.
"Petitioners describe[d] the 123 l(a) subclass as individuals detained under that section

2
.
.

A F
863

who have received a stay of removal," but who have failed to depart the United States
and remain detained. Id. While the Department may detain aliens who have failed to
depart "beyond the removal period," it may only do so where the alien is in receipt of an
"administratively final" order of removal and the "removal period" has therefore been
triggered. 8 U.S.C. 123l(a)(l)(B)(i). Since an alien in receipt of a stay of removal is not
subject to an administratively final order of removal, the Ninth Circuit reasoned that the

Immigrant & Refugee Appellate Center, LLC | www.irac.net


removal period has not been triggered and that 123 l(a) is therefore inapplicable. Id.
(referencing Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009) ("[W]hile
administrative proceedings are pending on remand, Owino will not be subject to a final
order of removal, so 1231 cannot apply."). Since the District Court's original 123l(a)
subclass specifically included aliens in withholding only, supra., at *2, but the Ninth
Circuit specifically determined that this subclass does not exist, this Court has no
mandate under Rodriguez to conduct a custody redetermination hearing for an alien in
withholding-only proceedings. To the extent the Court previously interpreted prior cases
as providing that mandate, it is this Court's finding that Rodriguez III overruled that
interpretation.

III. CONCLUSIONS

It is well-settled that IJs "only have the authority to consider matters that are
delegated to them by the Attorney General and the Immigration and Nationality Act."
Matter of A-W-, 25 I&N Dec. 45, 46 (BIA 2009); accord 8 C.F.R. 1003.lO(b). This
Court has no jurisdiction or mandate to conduct a custody redetermination hearing for an
alien subject to detention pursuant to 8 U.S.C. 123 l(a)(6). Cf Diouf v. Napolitano
("Diouf II"), 634 F.3d 1081 (9th Cir. 2011) (an alien who had been detained pursuant to
8 U.S.C. 123l(a)(6) for 180 days and had a stay of removal and pending petition for
review with the Ninth Circuit was entitled to an individualized custody hearing).
Rodriguez III only upheld the United States District Court's injunction mandating bond
hearings for aliens detained pursuant to 8 U.S.C. 1226(a), 1226(c), and 1225(b).
This Court will not extend its authority to reconsider the Applicant's custody conditions.
Compare e.g., Diouf v. Mukasey ("Diouf/''), 542 F.3d 1222 (9th Cir. 2008) (remanding
for the District Court to consider in the first instance, "[g]iven the holding of Casas
Castrillon, it remains unclear whether similar due process concerns would require a
similar construction of 123l(a)(6) . . "),with Dioufv. Napolitano ("Diouf II"), 634 F.3d
.

at 1084 (reversing the District Court's conclusion on remand, and "hold[ing] that
individuals detained under 123 l(a)(6) are entitled to the same procedural safeguards
against prolonged detention as individuals detained under 1226(a)."); see generally
Matter ofG-K-,26 I&N Dec. 88 (BIA 2013) ("The Board oflmmigration Appeals and the
Immigration Judges do not have the authority to rule on the constitutionality of the
statutes they administer ... "). Since the Ninth Circuit's ruling did not uphold bond
hearings for aliens in withholding only, supra, and the Court has not been delegated the
authority to conduct these hearings, and the Act does not (nor does the Code of Federal

3
,.
-
.. . )
A ,F
863

Regulations) explicitly state, and has not been interpreted to express, an IJ's authority in
this matter, this Court lacks the authority to conduct a custody redetermination hearing in
a withholding-only case, like Applicant's.

ORDER: IT IS ORDERED THAT the Applicant's request for a custody

Immigrant & Refugee Appellate Center, LLC | www.irac.net


redetermination is hereby DENIED for lack ofjurisdiction.

JAN 4 t017
Date

Вам также может понравиться