Judge Rejects Hosh and Rojas

December 14, 2012

Many readers may be familiar with the Board of Immigration Appeals’ 2001 decision in Matter of Rojas, where the Board held that individuals who are charged with removability on the basis of a state conviction and detained by the Department of Homeland Security at some point following their release from state custody are nonetheless subject to mandatory detention under I.N.A. § 236(c). Many courts and advocates have disagreed with the Board’s decision because the statutory language unambiguously directs the government to detain noncitizens “when the alien is released” from state custody.

The Western District of Washington, like many other district courts, has repeatedly rejected the Board’s decision in Rojas, refusing to defer to the Board’s interpretation because the statute does not leave any ambiguity for the agency to interpret. See, e.g., Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221 (W.D. Wash. 2004); Pastor-Camarena v. Smith, 977 F. Supp. 1415 (W.D. Wash. 1997). For several years after the court’s decisions, local DHS had acquiesced and permitted bond hearings for “when released” cases arising in the Northwest Detention Center in Tacoma, which falls under the jurisdiction of the Western District of Washington.

Recently, however, the DHS has changed its policy and is asserting mandatory detention in all “when released” cases. As a result, the district court has recently revisited the issue in Castillo v. ICE Field Office Director, __ F. Supp. 2d __, 2012 WL 5511716 (W.D. Wash. Nov. 14, 2012).

Petitioner Elton Castillo was removed to Belize in 2003 and subsequently reentered the United States. He was subsequently detained by the DHS and issued a notice that the DHS intended to reinstate his prior removal order. However, an asylum officer later found that Mr. Castillo had a reasonable fear of persecution and torture, and referred the matter to an immigration judge. Mr. Castillo filed a pro se petition for writ of habeas corpus in April 2012 seeking a bond hearing or release on an order of supervision.

On November 14, 2012, District Judge Marsha J. Pechman reaffirmed the Western District’s prior decisions on this issue, holding that “the language of the statute is not ambiguous.” The court continued:

Analyzing the precise language at issue here, multiple judges in this district have concluded that the clear language of the statute indicates that the mandatory detention of aliens “when” they are released requires that they be detained at the time of release.

Castillo, __ F. Supp. 2d __, 2012 WL 5511716 at *4. The Court ordered the DHS to provide Mr. Castillo with a bond hearing within 30 days.

Of particular note to practitioners is the district court’s thoughtful analysis of the Fourth Circuit’s contrary decision in Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012). In Hosh, the Fourth Circuit deferred to the Board’s interpretation of the mandatory detention scheme. The Castillo court found that the Government’s argument to adopt the reasoning of Hosh was “unpersuasive,” because Hosh had relied on cases “involving internal requirements of customs laws and the Bail Report Act of 1984 . . . .” The court declined to adopt Hosh because “this case is about providing due process to an individual, not taking away a benefit accorded by the government.”

The Government in Castillo also argued that detention was authorized under I.N.A. § 241 because Mr. Castillo had a reinstated order of removal. The court found that this argument “defies both logic and the clear text of the statute” because the reinstated removal order is “non-final” given the pending proceedings regarding Mr. Castillo’s withholding and CAT applications. The court noted that 8 C.F.R. § 241.8(e) provides that the “custody of aliens awaiting withholding of removal proceedings is explicitly not governed by § 241.”

Unfortunately, notwithstanding the district court’s decision in Castillo, the DHS continues to assert mandatory detention in all “when released” cases arising in the Western District. If you have cases raising this fact pattern, consider filing a habeas corpus petition. If you do not do habeas cases yourself, consider referring your client to another attorney who can help. And remember, given the repeated decisions rejecting the government’s position, it may be possible to obtain EAJA fees for favorable outcomes in these cases.

Devin Theriot-Orr


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