United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
Mitka, a native and citizen of the United Kingdom, brings
this 28 U.S.C. § 2241 habeas action to challenge his
continued detention by U.S. Immigration and Customs
Enforcement (“ICE”) at the Northwest Detention
Center. He has been detained without bond since May 1, 2018,
and he seeks release or a bond hearing. Mr. Mitka initiated
this action pro se, and the Court subsequently
appointed the Federal Public Defender to represent him.
Government has moved to dismiss, arguing that Mr. Mitka's
detention is statutorily authorized and that he is not
entitled to a bond hearing or release. Mr. Mitka's
response did not address the statutory basis for his
detention and instead argued that his detention violates his
due process rights. The Court ordered Mr. Mitka to file a
supplemental brief addressing the statutory basis for his
detention, but he did not comply with the Court's order.
For the reasons explained below, the Court concludes that Mr.
Mitka is not entitled to release, but due process requires
that the Government provide him with a bond hearing.
Mitka entered the United States in October 2016 under the
Visa Waiver Program (“VWP”). Dkt. 10-1. The VWP
allows noncitizens from designated countries to visit the
United States without obtaining a nonimmigrant visa. 8 U.S.C.
§ 1187(a). VWP entrants are subject to numerous
restrictions, including waiver of any right “to
contest, other than on the basis of an application for
asylum, any action for removal of the [noncitizen].” 8
U.S.C. § 1187(b)(2); Nicusor-Remus v. Sessions,
902 F.3d 895, 896 (9th Cir. 2018).
Mitka was authorized to remain in the United States until
January 20, 2017, but he overstayed. Dkt. 10-1. On May 1,
2018, U.S. Customs and Board Patrol officers encountered him
and determined that he was deportable based on his overstay.
Id. He was ordered removed from the United States
and made a formal claim for asylum. Id. On September
18, 2018, an immigration judge (“IJ”) denied his
request for asylum, withholding of removal under the
Immigration and Nationality Act, and withholding of removal
under the Convention Against Torture. Dkt. 10-4. On October
11, 2018, he appealed to the Board of Immigration Appeals
(“BIA”), and his appeal remains pending. Dkt.
December 12, 2018, an IJ denied Mr. Mitka's request for
release on bond because he is in asylum only proceedings.
Dkt. 10-2. On July 11, 2019, ICE officials reviewed his
custody status and denied release, finding that he presents a
significant flight risk. Dkt. 16-1.
Government argues that § 1187 authorizes Mr. Mitka's
detention and that IJs lack jurisdiction to hold bond
hearings for noncitizens detained pursuant to the VWP. Dkt. 9
at 5-6 (citing, inter alia, Matter of A-W-,
25 I. & N. Dec. 45 (BIA 2009) (holding that §
1187(c)(2)(E) authorizes the detention of VWP noncitizens,
and that IJs lack jurisdiction to hold bond hearings for such
individuals)). The Court expressly ordered Mr. Mitka to file
a supplemental brief addressing the statutory basis for his
detention, but he failed to do so. Because Mr. Mitka does not
oppose the Government's argument on this issue, the Court
presumes that the Government's position is
correct. See W.D. Wash. Local Rules LCR
7(b)(2) (“Except for motions for summary judgment, if a
party fails to file papers in opposition to a motion, such
failure may be considered by the court as an admission that
the motion has merit.”); Olson v. Uehara, No.
13-782, 2014 WL 6808818, at *8 (W.D. Wash. Dec. 2, 2014)
(dismissing claims under LCR 7(b)(2) based on plaintiff's
failure to specifically address defendants' arguments in
his response brief). Therefore, the Court concludes that Mr.
Mitka does not have a statutory basis to obtain a bond
hearing or release from detention.
question, then, is whether Mr. Mitka's prolonged
mandatory detention of more than 16 months violates his due
process rights. Mr. Mitka argues that he is entitled to
release because his detention is indefinite. Dkt. 13 at 1. In
Zadvydas v. Davis, the Supreme Court concluded that
“indefinite” detention of noncitizens would
“raise serious constitutional concerns” and
therefore construed the statute governing post-removal order
detention as containing an implicit “reasonable
time” limitation. 533 U.S. 678, 682 (2001) (holding
that noncitizens detained indefinitely must be released).
Detention becomes “indefinite” if, for example,
the country designated in the removal order refuses to accept
the noncitizen or if removal is barred by the laws of this
country. See Diouf v. Mukasey, 542 F.3d 1222, 1233
(9th Cir. 2008); Casas-Castrillon v. Dep't of
Homeland Sec., 535 F.3d 942, 948-49 (9th Cir. 2008)
(noncitizen's nearly seven-year detention was not
“indefinite” because nothing would prevent his
removal if he were ultimately unsuccessful in his
then-pending petition for review). There is no evidence in
the record that the United Kingdom would not accept Mr. Mitka
if he loses his asylum claim or that removing him under such
circumstances would violate the laws of this country.
Accordingly, he is not entitled to release under
Mitka also argues that his prolonged detention violates due
process because it does not bear a reasonable relationship to
the asserted governmental interests in continued detention.
Dkt. 13 at 2-3. Judges in this District have determined that
unreasonably prolonged mandatory detention under 8 U.S.C.
§§ 1225(b) and 1226(c) without a bond hearing
violates due process. Banda v. McAleenan, 385
F.Supp.3d 1099, 1106 (W.D. Wash. 2019), appeal
pending (Robart, J.) (addressing § 1225(b), which
authorizes mandatory detention for unadmitted noncitizen
detainees); Martinez v. Clark, No. 18-1669-RAJ, Dkt.
17 (W.D. Wash. May 23, 2019) (Theiler, M.J.) (Report and
Recommendation addressing § 1226(c), which authorizes
mandatory detention for certain criminal noncitizens in
removal proceedings). As Judges Robart and Theiler
recognized, the Ninth Circuit has expressed “grave
doubts that any statute that allows for arbitrary prolonged
detention without any process is constitutional or that those
who founded our democracy precisely to protect against the
government's arbitrary deprivation of liberty would have
thought so.” Rodriguez v. Marin, 909 F.3d 252,
256 (9th Cir. 2018); see also Demore v. Kim, 538
U.S. 510, 532 (2003) (Kennedy, J., concurring)
(“[S]ince the Due Process Clause prohibits arbitrary
deprivations of liberty, a lawful permanent resident alien .
. . could be entitled to an individualized determination as
to his risk of flight and dangerousness if the continued
detention became unreasonable or unjustified.”). The
Court concludes that the Ninth Circuit's constitutional
concerns apply to VWP entrants who are detained pending
asylum only proceedings.
determine whether a noncitizen's prolonged mandatory
detention has become unreasonable, Judges Robart and Theiler
adopted a multi-factor, case-specific analysis used by many
other courts. See Banda, 385 F.Supp.3d at 1106-07,
1116-18; Martinez, No. 18-1669-RAJ, Dkt. 17 at
12-19. The factors courts consider when the petitioner is an
unadmitted noncitizen detained under § 1225(b) are
“(1) the total length of detention to date; (2) the
likely duration of future detention; (3) the conditions of
detention; (4) delays in the removal proceedings caused by
the detainee; (5) delays in the removal proceedings caused by
the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.”
Banda, 385 F.Supp.3d at 1118 (quoted source
omitted). The analysis for criminal noncitizens detained
under § 1226(c) involves two additional factors: whether
the detention will exceed the time the petitioner spent in
prison for the crime that made him removable, and the nature
of the crimes the petitioner committed. Martinez,
No. 18-1669-RAJ, Dkt. 17 at 19. As there is no evidence Mr.
Mitka has committed any crimes, the Court will consider the
factors outlined in Banda.
first factor, the length of detention, is the most important.
Banda, 385 F.Supp.3d at 1118. Mr. Mitka has been
detained for over 16 months, which is “a very long
time.” Id. (concluding that 17-month detention
was “a very long time” and collecting cases that
granted bond hearings for petitioners who were ...