United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Richard
Cousins' 28 U.S.C. § 2241 Habeas Corpus Petition
(Dkt. No. 1); Respondents' Motion to Dismiss (Dkt. No.
6); the Report and Recommendation (“R&R”) of
the Honorable Brian A. Tsuchida, United States Magistrate
Judge (Dkt. No. 15); and the parties' objections thereto
(Dkt. Nos. 16, 18, 19). For the reasons described herein, the
Court DECLINES to adopt the R&R and GRANTS
Respondents' Motion to Dismiss (Dkt. No. 6).
a Jamaican citizen, petitions this Court for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 seeking release from
detention by the U.S. Department of Homeland Security
(“DHS”) pending completion of his removal
proceedings. (Dkt. No. 1.) Since filing his petition, Cousins
has been ordered removed by an Immigration Judge
(“IJ”). (Dkt. No. 17-1 at 2.) Cousins'
removal is currently stayed pending a Board of Immigration
Appeals (“BIA”) appeal of the IJ's removal
decision. (See Dkt. No. 17-2 at 2-4.) Cousins has
been detained since October 1, 2015, pending removal. (Dkt.
No. 15 at 3.) His lengthy detention results from multiple
continuances Cousins requested in his removal proceeding.
(Id. at 3-4.) During this time, Cousins received
four detention hearings before an IJ. (See Dkt. Nos.
1-1, 1-3, 1-5, 1-7, 15 at 10.) The IJ denied bond in each
instance, after finding that no amount of bond and/or
alternative conditions could ensure his appearance.
unsuccessful appeals to BIA of all but his last detention
hearing, Cousins filed a petition for a Writ of Habeas Corpus
with this Court. (Dkt. No. 1.) Judge Tsuchida recommends this
Court deny DHS's motion to dismiss Cousins' petition
and direct the IJ to order Cousins released on reasonable
bond and/or alternative conditions pending completion of his
removal proceeding. (Dkt. No. 15) Cousins and DHS both filed
objections to Judge Tsuchida's R&R. (Dkt. Nos. 16,
18.) Judge's Tsuchida's recommendation was made
before Cousins was ordered removed. (Dkt. No. 17-1 at 2.)
236(a) of the Immigration and Nationality Act provides DHS
with discretionary authority to detain aliens pending
removal. 8 U.S.C. § 1226(a). After DHS makes an initial
detention determination, a detainee may request a detention
redetermination hearing before an IJ. 8 C.F.R. §§
236.1(d), 1236.1(c)(8). At that hearing, the detainee must
demonstrate by clear and convincing evidence why release is
warranted. Id. Release is warranted if the detainee
is not a “threat to national security, a danger to the
community at large, likely to abscond, or otherwise a poor
bail risk.” In Re Guerra, 24 I. & N. Dec.
37, 40 (BIA 2006). At issue in this case is whether Cousins
is likely to abscond. An IJ may look to a number of factors in
determining that an individual pending removal proceedings is
likely to abscond, including the person's “record
of appearance in court” and his “criminal record,
including the extensiveness of criminal activity, the recency
of such activity, and the seriousness of the offenses.”
Guerra, 241 I. & N. at 40.
detention hearings are required for every six months of
continued detention. Rodriguez v. Robbins, 804 F.3d
1060, 1071 (9th Cir. 2015) (“Rodriguez
III”). Similar factors apply in a
Rodriguez hearing, except that the IJ must also
consider the length of detention, and the burden shifts to
DHS to demonstrate that continued detention is justified by
clear and convincing evidence. Id. at 1089;
Singh v. Holder, 638 F.3d 1196, 1203-09 (9th Cir.
2011). A detainee may appeal the IJ's determination to
BIA. Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th
Cir. 2011). If the detainee is dissatisfied with BIA's
review, the detainee may then file a habeas petition with the
district court, but the court's jurisdiction is limited
to constitutional claims and legal error. 8 U.S.C. §
1226(e); Singh, 638 F.3d at 1200.
Cousins' Habeas Petition
habeas petition alleges the following: (1) As a matter of
law, DHS failed to present clear and convincing evidence to
justify Cousins' continued detention, (2) the IJ erred in
failing to make an individualized determination as to an
appropriate bond amount or alternative conditions to ensure
Cousins' appearance, (3) the IJ failed to consider the
growing length of Cousins' detention, and (4) the IJ
erred in how he weighed the evidence put before him. (Dkt.
No. 1 at 15-17.)
Tsuchida recommends that this Court find, as a matter of law,
that denial of bond in Cousins' case is not supported by
clear and convincing evidence. (Dkt. No. 15 at 18-20.) Judge
Tsuchida further recommends this Court dismiss Cousins'
remaining claims, noting that the final claim goes beyond the
jurisdiction of this Court, and the remaining claims are
meritless. (Id. at 17-18, 20-22.) This Court must
conduct a de novo review of the portions of Judge
Tsuchida's R&R to which a party properly objects. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). A party
properly objects when he or she files “specific written
objections” to the magistrate judge's report as
required under Federal Rule of Civil Procedure 72(b)(2).
Here, both parties filed written objections. DHS objects to
Judge Tsuchida's recommendation that, as a matter of law,
it failed to present clear and convincing evidence justifying
continued detention. (Dkt. No. 16 at 3-9.) Cousins also
objects, alleging Judge Tsuchida erred in finding his
remaining claims to be meritless. (Dkt. No. 18 at 2-8.) As
described below, this Court finds DHS's objection
meritorious and Cousins's objections without merit.
Cousins' Detention is Permissible as a Matter of
Cousins' detention hearings, DHS primarily relied on the
following evidence to support its position that Cousins is a
sufficient flight risk to allow for continued detention:
Cousins' extensive criminal history and the nature of
some of his crimes, his failure to appear in a 1991 criminal
matter, and his risk of flight due to his limited forms of
relief from removal. (Dkt. Nos. 1-1 at 2-3; 1-3 at 2-4; 1-5
at 5-7; 1-7 at 7-8; 15 at 10.) Based on the totality of
evidence presented, the IJ found that Cousins represented a