United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
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.
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. 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
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.
Mr. Fatty's arrival in the United States
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.
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 ¶
Mr. Fatty's second removal proceedings and ICE's
efforts to remove him
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
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.
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.
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.
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.
The instant habeas action
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.
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.
Mr. Fatty's T visa application
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.
eligible for a T visa, a noncitizen (1) must be or have been
a victim of a severe form of trafficking in
persons; (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).
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).” 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.”).
[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. 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.
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. §
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 ...