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Giron-Castro v. Asher

United States District Court, W.D. Washington, Seattle

October 2, 2014

NATALIE ASHER, et al., Respondents.


JAMES L. ROBART, District Judge.

This matter comes before the court on the Report and Recommendation of United States Magistrate Judge James P. Donohue (R&R (Dkt. # 17)) and Respondents' objections thereto (Objections (Dkt. # 18); Errata re Objections (Dkt. # 19)[1]). Having carefully reviewed the foregoing, the balance of the record, and the governing law, the court ADOPTS the Report and Recommendation (Dkt. # 17) and therefore GRANTS in part and DENIES in part Petitioner's habeas petition (Dkt. # 1), DENIES as moot Petitioner's motion for a preliminary injunction (Dkt. # 4), and ORDERS the Executive Office of Immigration Review to provide Petitioner with an individualized bond hearing within 14 days of the date of this order.


Petitioner Christian Giron-Castro is a citizen of El Salvador who has been detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest Detention Center since June 19, 2013, under a reinstated order of removal. (R&R at 1.) Mr. Giron-Castro applied for withholding of removal ( id. at 2), but an immigration judge ("IJ") denied his application. ( Id. ) His appeal to the Board of Immigration Appeals is pending. ( Id. ) During his detention, Mr. Giron-Castro has requested release on bond, but ICE has denied his requests, and an IJ found no jurisdiction to hold a bond hearing. As a result, Mr. Giron-Castro brought the habeas petition at issue here seeking release from detention or a bond hearing ( id. at 2-3) on the ground that his prolonged detention without a bond hearing violates due process and 8 U.S.C. § 1226(a). (Pet. (Dkt. # 1) at 10-13.) Mr. Giron-Castro also filed a motion for a preliminary injunction, again seeking a bond hearing. ( See generally Mot. (Dkt. # 4).)

Magistrate Judge Donohue recommended granting the petition in part and denying it in part. (R&R at 16.) Specifically, Magistrate Judge Donohue recommended denying Mr. Giron-Castro's request for an order of release but granting his request for an individualized bond hearing. ( Id. ) In light of those recommendations, Magistrate Judge Donohue also recommended denying as moot Mr. Giron-Castro's motion for a preliminary injunction. ( Id. at 16-17.) Furthermore, as part of his analysis, Magistrate Judge Donohue concluded that Mr. Giron-Castro is being detained under 8 U.S.C. § 1231(a) rather than § 1225(b) or § 1226(a). ( Id. at 7-10.) Respondents filed timely objections to the Report and Recommendation. ( See generally Objections.)


A district court has jurisdiction to review a magistrate judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b)(3). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b)(3) ("The district judge may accept, reject, modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). "The statute makes clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).


Respondents object to only one of Magistrate Judge Donohue's recommendations-namely, that Mr. Giron-Castro is entitled to an individualized bond hearing under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (" Diouf II "). (Objections at 2.) The court, however, has thoroughly examined the record before it and the relevant law, and finds Magistrate Judge Donohue's reasoning persuasive. Moreover, the objections raise essentially the same arguments regarding the applicability of Diouff II to this case that Respondents submitted to Magistrate Judge Donohue. ( Compare Objections at 2-7 with Responsive Brief (Dkt. # 11) at 9-11.) As such, the court independently rejects those arguments for the same reasons articulated in the Report and Recommendation. ( See R&R at 13-16.)

Although Mr. Giron-Castro initially argued that he is being detained under 8 U.S.C. § 1226(a) ( see, e.g., Reply to Responsive Brief (Dkt. # 14) at 2-5), none of the parties have objected to Magistrate Judge Donohue's conclusion that Mr. Giron Castro is being held under § 1231(a). ( See Objections at 2; Resp. (Dkt. # 20) at 2.) Nevertheless, in light of the disagreement on this issue in this and other cases, [2] the court will address the matter.

First, the court agrees with Magistrate Judge Donohue's analysis of the case law cited by Mr. Giron-Castro in his reply briefs. ( See R&R at 10-12; Reply to Resp. (Dkt. # 15) at 3-4; Reply to Responsive Brief at 2-5 (citing Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006); Owino v. Napolitano, 575 F.3d 952 (9th Cir. 2009); Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013); and Castillo v. ICE Field Office Dir., 907 F.Supp.2d 1235 (W.D. Wash. 2012)).) Those cases are inapplicable to the facts of this case because, as Magistrate Judge Donohue points out, none of them dealt squarely with the issue of the administrative finality of a reinstated order of removal. ( See R&R at 10-12.)

Second, the court concurs in Magistrate Judge Donohue's interpretation of Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012). ( See R&R at 7 n.3.) In that case, the Ninth Circuit was concerned with finality for the purposes of judicial review, not administrative finality under 8 U.S.C. § 1231. See Ortiz-Alfaro, 694 F.3d at 957-58. Moreover, the concern for preserving the right to appeal that animated the court of appeals' analysis in that case is inapplicable in the factual and procedural context of this matter. See id. at 958. Whether Mr. Giron-Castro is being detained under § 1231(a) as opposed to § 1226(a) has no effect on his right to seek judicial review of his reinstated order of removal, see 8 U.S.C. § 1231(a)(5), or the ultimate decision on his application for withholding of removal. See Ortiz-Alfaro, 694 F.3d at 958.

Finally, the court notes that several courts in other districts have reached the contrary conclusion on this issue. See Uttecht v. Napolitano, No. 8:12CV347, 2012 WL 5386618 (D. Neb. Nov. 1, 2012); Pierre v. Sabol, Civil No. 1:11-CV-2184, 2012 WL 1658293 (M.D. Pa. May 11, 2012). Like Magistrate Judge Donohue, however, the court finds the reasoning of those cases unpersuasive. In each instance, the opinion provides little analysis of whether reinstated orders of removal are administratively final while withholding-only proceedings are pending. Instead, both opinions simply conclude that because some sort of proceeding is ongoing, the reinstated removal order cannot be administratively final. See Uttecht, 2012 WL 5386618, at *2; Pierre, 2012 WL 1658293, at *4. Importantly, in reaching that conclusion, neither opinion wrestles with the clear language of § ...

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