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Mitka v. Ice Field Office Director

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

September 6, 2019

ROBERT MITKA, Petitioner,
v.
ICE FIELD OFFICE DIRECTOR, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Robert 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.

         The 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.

         BACKGROUND

         Mr. 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).

         Mr. 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. 10-3.

         On 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.

         DISCUSSION

         The 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.[1] 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.

         The 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 Zadvydas.

         Mr. 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.

         To 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.

         The 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 ...


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