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Fatty v. Nielsen

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

April 5, 2018

BANGALLY FATTY, Petitioner,
v.
KIRSTJEN M. NIELSEN, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Bengally Fatty brings this 28 U.S.C. § 2241 immigration habeas action to obtain a judicial stay of removal pending the adjudication of his T visa application by U.S. Citizenship and Immigration Services (“USCIS”), and a bond hearing. Dkt. 9. He asserts it would violate due process to remove him before his T visa application is processed, and he brings an Administrative Procedures Act (“APA”) claim alleging that U.S. Immigration and Customs Enforcement (“ICE”) abused its discretion when it denied his administrative request for a stay of removal. See Id. The Court temporarily stayed Mr. Fatty's removal pending consideration of his motion to stay. Dkts. 2 & 3.

         The Government has filed a return memorandum and motion to dismiss Mr. Fatty's amended petition, arguing that the Court does not have jurisdiction to stay his removal, and alternatively, that he cannot prevail on his due process and APA claims.[1] Dkts. 14, 16, 23, 25. The Government also argues that Mr. Fatty is not entitled to a bond hearing. Dkts. 14, 16. Mr. Fatty opposes dismissal. Dkts. 15 & 24.

         Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that the Government's motion to dismiss be GRANTED with respect to Mr. Fatty's due process and APA claims, and CONDITIONALLY GRANTED with respect to his request for a bond hearing; Mr. Fatty should not be granted a bond hearing unless the Government fails to remove him within 30 days of the Order on this Report and Recommendation. The Court further recommends that the temporary stay of removal be VACATED and Mr. Fatty's motion to stay be DENIED as moot.

         BACKGROUND

         A. Mr. Fatty's arrival in the United States

         Mr. Fatty, a native and citizen of the Republic of Gambia, entered the United States on an F-1 student visa on July 13, 2002, intending to attend Florida Memorial College. Dkt. 9 at ¶ 20; Dkt. 5-1 at ¶ 3. The funding he thought he would receive for school was not available, and he claims that subsequently he was the victim of labor trafficking at a Pennsylvania restaurant. Dkt. 9 at ¶¶ 21-24. After he escaped, he alleges, he eventually settled in Alaska. Dkt. 9 at ¶ 25.

         On June 22, 2004, the Department of Homeland Security (“DHS”) initiated removal proceedings against Mr. Fatty by serving him with a Notice to Appear charging him as removable based on his failure to maintain student status. Dkt. 5-1 at ¶ 5. On January 6, 2005, Mr. Fatty married his first wife, a United States citizen. Dkt. 9 at ¶ 25; Dkt. 5-1 at ¶ 6. On June 9, 2005, while in removal proceedings, an immigration judge (“IJ”) granted Mr. Fatty's application for adjustment of status based on his marriage, and as a result, Mr. Fatty became a lawful permanent resident. Dkt. 9 at ¶ 25; Dkt. 5-1 at ¶ 7-9.

         B. Mr. Fatty's second removal proceedings and ICE's efforts to remove him

         In 2006, Mr. Fatty was convicted of multiple offenses, including domestic violence. Dkt. 5-1 at ¶¶ 10-14. On February 6, 2007, DHS issued a second Notice to Appear, this time charging Mr. Fatty as removable based on his convictions for domestic violence and violating a protection order. Id. at ¶ 15. On January 8, 2009, an IJ denied Mr. Fatty's application for asylum and ordered him removed to the Republic of Gambia. Dkt. 9 at ¶ 25; Dkt. 5-1 at ¶¶ 20-21. Mr. Fatty appealed to the Board of Immigration Appeals (“BIA”). Dkt. 5-1 at ¶ 22. While his appeal was pending, he and his first wife divorced. Dkt. 9 at ¶ 25. On March 30, 2011, the BIA dismissed Mr. Fatty's appeal. Dkt. 5-1 at ¶ 23. Mr. Fatty filed a petition for review with the Ninth Circuit, which was dismissed for failure to prosecute. Id. at ¶¶ 24-26. Mr. Fatty's removal order became final.

         In December 2012, Mr. Fatty was convicted in Oklahoma state court for felony trafficking in illegal drugs, as well as jumping bail. Dkt. 5-1 at ¶ 27. He was released from prison on October 27, 2013, and transferred to ICE custody. Id. at ¶ 27. ICE attempted to obtain a travel document to remove Mr. Fatty but was unsuccessful. Id. at ¶¶ 28-30. On January 21, 2014, ICE released Mr. Fatty on an Order of Supervision and informed him that he would be re-detained once a travel document was obtained. Dkt. 9 at ¶ 26; Dkt. 5-1 at ¶ 31.

         After his release in 2014, Mr. Fatty committed to turning his life around. Dkt. 9 at ¶ 27. He enrolled at Shoreline Community College and then transferred to the University of Washington. Id. He did volunteer work and earned good grades. Id. In 2016, Mr. Fatty married his second wife and they had a daughter in July 2017. Id. at ¶ 28. Mr. Fatty also has a 9-year-old daughter who lives with her mother in Minnesota; Mr. Fatty helps support her. Id.

         On May 11, 2017, the Republic of Gambia issued a temporary travel document for Mr. Fatty, which expired on November 11, 2017. Dkt. 5-1 at ¶ 35. ICE subsequently obtained a second temporary travel document for Mr. Fatty, which is valid until May 28, 2018. Dkt. 14-2 at ¶ 8.

         On September 19, 2017, ICE took Mr. Fatty into custody to effect his removal and detained him at the Northwest Detention Center in Tacoma, Washington. Id. at ¶ 38. ICE scheduled Mr. Fatty to be removed on an October 24, 2017 flight. Dkt. 14-2 at ¶ 4. Mr. Fatty's attorney subsequently attempted to file an I-246 request for a stay of removal with ICE, but ICE refused to accept it because it did not comply with the regulations. Id. at 39; Dkt. 9 at ¶ 30.

         C. The instant habeas action

         On October 13, 2017, Mr. Fatty filed the instant habeas action and an emergency motion to stay his removal. Dkts. 1 & 2. Mr. Fatty claimed that he was eligible for a T visa because he was a trafficking victim and that it would violate due process to remove him before his application was adjudicated. See Dkt. 1. He also challenged ICE's refusal to accept his I-246 application for a stay of removal and requested a bond hearing. See id.

         On October 16, 2017, the Court granted a temporary stay of removal pending resolution of Mr. Fatty's motion to stay. Dkt. 3. The Court also directed that his habeas petition and motion to stay be served on the Government. Id.

         D. Mr. Fatty's T visa application

         Mr. Fatty submitted a T visa application, which was received by USCIS on or about October 18, 2017. Dkt. 14-3 at ¶ 6. The T nonimmigrant classification was created by Congress in 2000 to provide immigration relief to certain victims of severe forms of trafficking in persons, to strengthen law enforcement's ability to investigate and prosecute severe forms of trafficking in persons, and to encourage exploited and abused victims to report such trafficking even if they do not have immigration status. Dkt. 14-1 at ¶ 2; see also 8 U.S.C. §§ 1101(a)(15)(T), 1184(o), 1255(1); 22 U.S.C. §§ 7101, 7105; 8 C.F.R. § 214.11. If a T visa application is approved, the applicant will receive lawful T-1 nonimmigrant status and employment authorization for 4 years. Dkt. 14-1 at ¶ 2. Additionally, after three years of continuous physical presence in T nonimmigrant status, the T-1 nonimmigrant may apply for adjustment of status to lawful permanent residence. Id.

         To be eligible for a T visa, a noncitizen (1) must be or have been a victim of a severe form of trafficking in persons[2]; (2) must be physically present in the United States or at a port-of-entry; (3) must have complied with any reasonable request for assistance by government officials into the acts of trafficking in persons; and (4) would suffer extreme hardship involving unusual and severe harm upon removal. 8 C.F.R. § 214.11(b).

         A noncitizen who has been ordered removed may file a T visa application directly with USCIS, which has sole jurisdiction over such applications. 8 C.F.R. § 214.11(d)(1)(ii). The regulations make clear that “[t]he filing of an application for T nonimmigrant status has no effect on DHS authority or discretion to execute a final order of removal, although the [noncitizen] may request an administrative stay of removal pursuant to 8 C.F.R. § 241.6(a).”[3] Id.; see also 8 C.F.R. § 214.11(e)(3) (“The filing of an application for T nonimmigrant status does not automatically stay the execution of a final order unless USCIS has determined that the application is bona fide.”).

         “Once [a noncitizen] submits an application for T-1 nonimmigrant status, USCIS will conduct an initial review to determine if the application is a bona fide application . . . .” 8 C.F.R. §214.11(d)(7). An application will be deemed bona fide if it is properly filed and is complete, it does not appear to be fraudulent, it presents prima facie evidence of each eligibility requirement, biometrics and background checks are complete, and the applicant is either admissible or, if inadmissible on a ground that may be waived, the applicant has filed a request for a waiver.[4] 8 C.F.R. § 214.11(e)(1). Once USICS provides notice to the applicant that the application is bona fide, it automatically stays the execution of any final order of removal. 8 C.F.R. §§ 214.11(e)(2)-(3).

         If an application is incomplete or does not present sufficient evidence to establish prima facie eligibility, “USCIS may request additional information, issue a notice of intent to deny . . ., or may adjudicate the application on the basis of the evidence presented . . . .” 8 C.F.R. § 214.11(e)(2)(i). The burden is on the applicant to demonstrate eligibility, and “USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence.” 8 C.F.R. § 214.11(d)(6).

         Mr. Fatty's T visa application is based on his claim that he was the victim of labor trafficking shortly after he arrived in the United States. Dkt. 9-1 at 13. Mr. Fatty claims that his T visa application is bona fide. Dkt. 9 at ¶ 42. The Government, however, has submitted evidence that upon initial review, USCIS could not determine that his application was not fraudulent, and the Federal Bureau of Investigation had not yet completed his background ...


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