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Garcia-Consuegra v. Asher

United States District Court, W.D. Washington

December 2, 2014

NATHALIE R. ASHER, et al., Respondents

For Edith Aydee Garcia-Consuegra, Petitioner: Steve Tanijo, LAW OFFICE OF STEVE TANIJO, PLLC, SEATTLE, WA.

For Nathalie R Asher, Field Office Director, ICE, Lowell Clark, Warden, Northwest Detention Center, Daniel Ragsdale, Acting Director, ICE, Eric H Holder, Jr., U.S. Attorney General, Jeh Johnson, Secretary, Department of Homeland Security, Juan P Osuna, Director, EOIR, United States of America, Respondents: U.S. Attorney Habeas, LEAD ATTORNEY; Craig William Kuhn, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC.


JAMES P. DONOHUE, United States Magistrate Judge.


Petitioner Edith Aydee Garcia-Consuegra, a native and citizen of El Salvador, has been detained by U.S. Immigration and Customs Enforcement (" ICE") at the Northwest Detention Center since March 12, 2014, under a reinstated order of removal. See Dkt. 1. An asylum officer found petitioner had a reasonable fear of return to El Salvador and referred her to an Immigration Judge (" IJ") for withholding-only proceedings, which remain pending. Dkt. 12-1 at 3. During her detention, she has not received an individualized bond hearing before an IJ. Id.; see also Dkt. 14 at 14.

Through counsel, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and writ of mandamus, seeking release from immigration detention or a bond hearing. Dkt. 1. She names as respondents Lowell Clark, warden of the Northwest Detention Center; Nathalie R. Asher, ICE Field Office Director; Daniel Ragsdale, Acting Director of ICE; Juan P. Osuna, Director of the Executive Office for Immigration Review (" EOIR"); Jeh Johnson, Secretary of the Department of Homeland Security (" DHS"), and Eric H. Holder, Jr., United States Attorney General. Id. Petitioner also filed a motion for preliminary injunction. Dkt. 2.

Respondents have filed a return memorandum, motion to dismiss, and opposition to petitioner's motion for preliminary injunction. Dkt. 12. They contend that Mr. Clark is the only proper respondent to this action, and accordingly, the remaining respondents should be dismissed. Id. They further argue that petitioner's habeas petition should be denied because her detention is statutorily authorized and she is not entitled to a bond hearing. Id.

For the reasons discussed below, the Court recommends that both respondents' motion to dismiss and petitioner's habeas petition be granted in part and denied in part. Ms. Asher, Mr. Ragsdale, Mr. Johnson, and Mr. Holder should be dismissed because they are not proper respondents to the habeas petition or to the petition for writ of mandamus. Petitioner is not entitled to an order of release, but she should be given an individualized bond hearing before an IJ. Accordingly, the Court recommends that EOIR be ordered to provide her with a bond hearing within 14 days of the order on this Report and Recommendation. The Court further recommends that petitioner's motion for preliminary injunction be denied as moot.


In September 2013, petitioner was removed from the United States pursuant to a Notice and Order of Expedited Removal. Dkt. 12-1 at 2. On March 13, 2014, an ICE Border Patrol Agent encountered petitioner illegally reentering the country in the Rio Grande Valley, Texas. Id. at 3. She was taken into custody and served with a Notice of Intent/Decision to Reinstate Prior Order. Id. Petitioner asserted a fear of return to El Salvador. Id. After interviewing petitioner, an asylum officer found this fear to be reasonable and referred her for withholding-only proceedings. Id. Those proceedings are ongoing. Id.

During her detention, petitioner has requested release on bond. Dkt. 1 at 3. ICE has denied her requests, and an IJ found no jurisdiction to hold a bond hearing. Id.; Dkt. 12-1 at 3. Consequently, petitioner filed the instant habeas petition, seeking release from immigration detention or a bond hearing. See generally id.


A. Proper respondent

Respondents contend that Ms. Asher, Mr. Ragsdale, Mr. Osuna, Mr. Johnson, and Mr. Holder are improper respondents to this action and should be dismissed. As an initial matter, the Court may quickly reject respondents' assertion that Mr. Osuna, Director of EOIR, be dismissed. Petitioner names Mr. Osuna as the respondent to her petition for writ of mandamus because he is empowered to direct the Immigration Courts to conduct a bond hearing for her. Dkt. 14 at 17; see also 28 U.S.C. § 1361 (" The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."); 8 C.F.R. § 1003.0(b) (discussing the powers of the director of EOIR). Respondents fail to raise any argument against naming him for this purpose, and accordingly Mr. Osuna should not be dismissed.

The Court turns now to the issue of who is a proper respondent to a habeas petition brought by an immigration detainee. This " quintessentially legal question, " Vasquez v. Reno, 233 F.3d 688, 693 (1st Cir. 2000), has not been decided by the Supreme Court, the Ninth Circuit, [1] or any court in the Western District of Washington. As discussed below, the Court concludes that the only proper respondent to the habeas petition is Mr. Clark, the warden of the Northwest Detention Center. Thus the remaining habeas respondents should be dismissed.

1. Legal landscape

The Supreme Court most recently discussed the issue of the proper respondent to a § 2241 habeas petition in Rumsfeld v. Padilla, 542 U.S. 426 (2004). The petitioner, who was designated an " enemy combatant" and detained in the Consolidated Naval Brig in Charleston, South Carolina, named the Secretary of Defense as the respondent to his petition. Id. at 430. The lower courts agreed that naming the Secretary was proper, rationalizing that although the warden of the naval brig exercised control of the petitioner's day-to-day activities, the Secretary maintained the legal reality of control. Id. at 433.

The Supreme Court disagreed. The Court began with the language of the habeas statute, which provides that the proper respondent is " the person who has custody over [the petitioner]." Id. at 434 (citing 28 U.S.C. § 2242); see also 28 U.S.C. § 2243 (" The writ, or order to show cause shall be directed to the person having custody of the person detained."). Based on the " consistent use of the definite article in reference to the custodian, " the Court concluded that " there is generally only one proper respondent to a given prisoner's habeas petition." Id.

The Court went on to reiterate its prior holding that the habeas statutes " contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Id. at 435 (quoting Whales v. Whitney, 114 U.S. 564, 574 (1885) (emphasis added in Padilla )). This is referred to as the " immediate custodian rule." Id. The Court found that " in habeas challenges to present physical confinement--'core challenges'--the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Id. Consequently, the Court held that the commander of the military brig was the proper respondent, not the Secretary. Id. at 436. The Court, however, expressly left open the question of whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation. Id. at 435 n.8.

Lower courts answering this question have come to a variety of conclusions. The majority have found that the warden of the facility where the alien is detained is the only proper respondent. See, e.g., Kholyavskiy v. Achim, 443 F.3d 946, 949-954 (7th Cir. 2006) (warden); Vasquez, 233 F.3d at 696 (warden, unless special circumstances warrant naming the Attorney General); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (warden); Nken v. Napolitano, 607 F.Supp.2d 149, 154 (D.D.C. 2009) (same); Bonitto v. Bureau of ICE, 547 F.Supp.2d 747, 751 (S.D. Tex. 2008) (same); Elcock v. Streiff 554 F.Supp.2d 1279, 1281 (S.D. Ala. 2008) (same); Nwabuisi v. Holder, No. CCB-14-49, 2014 WL 992698, at *1 n.1 (D. Md. Mar. 13, 2014) (same, following general approach of district courts in the Fourth Circuit); Alonso v. Office of Counsel/ICE, No. 13cv02514 MJD/JJK, 2013 WL 5999485, at *2-*3 (D. Minn. Nov. 12, 2013) (same, following general approach of district courts in the Eighth Circuit); Marroquin v. Robbins, No. CV 12-00876-VBF (SH), 2012 WL 4815404, at *2 (CD. Cal. Sept. 4, 2012), adopted by 2012 WL 4814998 (CD. Cal. Oct. 4, 2012) (same).

Before Padilla was decided, the Third Circuit in Yi concluded that the warden was the proper respondent, explaining:

This is because it is the warden that has day-to-day control over the prisoner and who can produce the actual body. That the district director has the power to release the detainees does not alter our conclusion. Otherwise, the Attorney General of the United States could be considered the custodian of every alien and prisoner in custody because ultimately she controls the district directors and the prisons.

24 F.3d at 507 (citations omitted). The First Circuit came to a similar conclusion in Vasquez, reasoning:

In terms of identifying a proper custodian, there is no principled distinction between an alien held in a detention facility awaiting possible deportation and a prisoner held in a correctional facility awaiting trial or serving a sentence. Since the case law establishes that the warden of the penitentiary not the Attorney General is the person who holds a prisoner in custody for habeas purposes, it would not only be illogical but also quixotic to hold that the appropriate respondent in an alien habeas case is someone other than the official having day-to-day control over the facility where the alien is being detained.

233 F.3d at 693.

Following Padilla, the Seventh Circuit concluded that the petitioner's attack on the constitutionality of his confinement while he was awaiting removal fell within the " core" category of habeas challenges, and that his immediate custodian-the warden of the facility where he was detained-was the only proper respondent. Kholyavskiy, 443 F.3d at 952-53. The court rejected the petitioner's assertion that the ICE Field Office Director was a proper respondent, reasoning that although she was responsible for authorizing custody, she did not maintain custody. Id at 953 (citing Al-Marri v. Rumsfeld 360 F.3d 707, 711 (7th Cir. 2004)); see also Padilla, 542 U.S. at 440 ...

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