United States District Court, W.D. Washington, Seattle
ORDER ON REPORT AND RECOMMENDATION
MARSHA J. PECHMAN, District Judge.
The above-entitled Court, having received and reviewed:
1. Report and Recommendation (Dkt. No. 19)
2. Petitioner's Objections to Magistrate's Report and Recommendation (Dkt. No. 20)
3. Respondents' Objections to Magistrate's Report and Recommendation (Dkt. No. 21)
4. Respondents' Return on Habeas Petition (Dkt. No. 12), Petitioner's Response to the
Return (Dkt. No. 14) and Respondents' Reply in Support of Return (Dkt. No. 18) and all attached declarations and exhibits, declines to adopt the Report and Recommendation and makes the following ruling:
IT IS ORDERED that Respondents' motion to dismiss is DENIED.
IT IS FURTHER ORDERED that Petitioner's motion for a preliminary injunction is STRICKEN as moot in light of the fact that the Court is granting his request for a writ of mandamus.
IT IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus is DENIED to the extent that it requests Petitioner's immediate release.
IT IS FURTHER ORDERED that Petitioner's request for a writ of mandamus is GRANTED and Respondents are ordered to provide a bond hearing for Petitioner within five (5) business days of the filing of this order.
In October 1998, Petitioner (a native of El Salvador) entered the United States illegally. An immigration judge issued a removal order for him in absentia in August 2009. In May 2010, Petitioner was removed to El Salvador and in October 2011 he re-entered this country illegally.
While in custody in Jackson County, Oregon in June 2013, Petitioner entered U.S. Immigration and Customs Enforcement (ICE) custody and on June 19, 2013 he was served with a Reinstatement of Removal Notice. In July and August of 2013, Petitioner failed to complete two interviews and failed to complete the proper documents for the Consulate of El Salvador, thus delaying the issuance of his travel documents. ICE issued Petitioner Notices for Failure to Comply twice during those two months for his failure to cooperate; Petitioner refused to sign acknowledgements of either form.
Meanwhile, Petitioner had filed a motion to reopen and review his removal order in August 2013 (claiming that he had received no notice of the removal); an automatic stay of removal was entered at that time. The following month, an immigration judge denied the motion to reopen and review; there is no indication that further judicial review of this decision was ever sought.
Also in August of 2013, Petitioner's case was referred to U.S. Citizenship and Immigration Services for a "reasonable fear determination" based on his expressed fear of returning to El Salvador. Following an interview by an asylum officer in February 2014, it was found that Petitioner had not established a reasonable fear of persecution or torture in his homeland, a determination which was upheld by an immigration judge in May 2014.
ICE granted Petitioner a stay of removal from May 9 to May 23 so that he could file a U-Visa application and motion to reopen. On May 27, 2014, Petitioner filed a motion to reopen and request for stay which was denied by an immigration judge on June 10. A second motion to stay (filed on June 19) was denied on June 25. On June 27, Petitioner filed the Petition for Writ of Habeas Corpus (Dkt. No. 1) and motion for preliminary injunction (Dkt. No. 2) which are presently before the Court.
Also on June 27, Petitioner filed his application for a U-Visa (Dkt. No. 17, Ex. 2). In July, he was twice interviewed by the El Salvador Consulate; both times he informed them that he was still fighting his case and both times the consulate declined to issue travel documents. On July 29, ICE sent an email to the El Salvador Consulate advising them that (1) Petitioner's request for stay of removal had been denied and (2) there was nothing preventing his removal. ICE requested the issuance of travel documents for Petitioner and, on August 7, 2014 served Petitioner with an I-299 (Warning for Failure to Depart) form.
On August 12, Petitioner's counsel was informed that Petitioner's U-Visa request had received a "prima facie grant" and his case was being "expedited." (Dkt. No. 17, Decl. of Bhuket, ¶ 3.) On August 18, the El Salvador ...