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Ferrari Rivera v. Wilcox

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

September 24, 2019

JOHN SAMUEL FERRARI RIVERA, Petitioner,
v.
BRYAN S. WILCOX, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         John Ferrari Rivera (“Mr. Ferrari”) is the sole breadwinner for his wife and severely autistic U.S. citizen son. Mr. Ferrari, who is a citizen of Peru, also came to the United States unlawfully and has been subject to a final order of removal since 1996. Mr. Ferrari failed to depart the United States after he was ordered removed. In 2010, U.S. Immigration and Customs Enforcement (“ICE”) arrested him but, after receiving documentation regarding his son's diagnosis and his family situation, released him on an Order of Supervision (“OSUP”) in January 2011. Since that time, ICE has granted him two administrative stays of removal and a year-long deferred action. His two most recent requests for stays of removal, however, were denied.

         On March 8, 2019, ICE arrested Mr. Ferrari to execute his removal to Peru. On March 15, 2019, he initiated this 28 U.S.C. § 2241 habeas action and sought an immediate stay of removal, which the Court granted pending resolution of this action. In his amended petition, Mr. Ferrari seeks an order enjoining ICE from removing him, arguing that the denial of his most recent application for a stay of removal is arbitrary and capricious under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. He also argues that the revocation of his OSUP and subsequent detention were arbitrary, capricious, and an abuse of discretion under the APA. Finally, Mr. Ferrari challenges the immigration judge's (“IJ”) determination that he did not have jurisdiction to release Mr. Ferrari on bond and asks the Court to order his release or a bond hearing.

         The Government has moved to dismiss, arguing that the Court does not have jurisdiction to stay Mr. Ferrari's removal and that even if it does, Mr. Ferrari cannot show that his removal or continuing detention are contrary to law. Dkt. 13; see also Dkt. 19. Mr. Ferrari opposes dismissal. Dkt. 18. 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 in part and denied in part, as explained below.

         BACKGROUND[1]

         Mr. Ferrari unlawfully entered the United States in 1994 and has never left the country. Dkt. 11 at ¶ 20; Dkt. 11-1 at 8. In January 1995, he applied for asylum. Dkt. 11 at 20. In October 1996, an IJ denied his application and granted him voluntary departure on or before December 23, 1996, with an alternate order of removal to Peru. Id.; Dkt. 9-2. Mr. Ferrari did not timely depart or appeal the IJ's decision, and therefore the October 1996 decision became a final order of removal. Dkt. 11 at ¶ 20.

         Mr. Ferrari remained at large until October 2010.[2] See Id. at ¶ 25. On October 29, 2010, ICE arrested Mr. Ferrari and transferred him to the Northwest Detention Center. Id.; Dkt. 11-1 at 8; see also Dkt. 9-4. On January 5, 2011, Mr. Ferrari filed his first administrative application for a stay of removal. Dkt. 10 at ¶ 7. ICE granted a 90-day stay to allow Mr. Ferrari time to prepare for his departure from the United States or to have his immigration case reopened. Id. On January 7, 2011, ICE released Mr. Ferrari on an OSUP. Dkt. 11 at ¶ 26; Dkt. 11-2 at 11-12; Dkt. 11-11 at 8. On April 25, 2011, Mr. Ferrari filed a second administration application for a stay of removal. Dkt. 11 at ¶ 26; Dkt. 11-1 at 8; Dkt. 9-5. On September 16, 2011, ICE granted him a six-month stay. Dkt. 11 at ¶ 26; Dkt. 11-1 at 8; Dkt. 9-5. On March 1, 2012, Mr. Ferrari filed his third request for an administrative stay of removal. Dkt. 9-7. In February or March 2014, ICE denied the request for a stay but granted Mr. Ferrari one year of deferred action so that he could make all necessary arrangements to depart the United States by February 28, 2015.[3] Dkts. 9-7, 9-8. On January 13, 2015, Mr. Ferrari filed his fourth application for an administrative stay of removal. Dkt. 11 at ¶ 26; Dkt. 9-9. On January 18, 2018, ICE denied the request. Dkt. 9-9; see also Dkt. 9-10 (February 6, 2018 letter from ICE explaining decision).[4]

         On March 6, 2018, when Mr. Ferrari reported to ICE as required by his OSUP, ICE instructed him to return on June 12, 2018, with proof of his passport and Peruvian Id. Dkt. 11-2 at 12; see also Dkt. 11-1 at 9. Mr. Ferrari learned he had to renew his Peruvian ID before he could renew his passport. Dkt. 11-1 at 9. On June 12, 2018, he showed his Peruvian ID to the ICE officer, who told him that he needed to show by January 17, 2019, that he had applied to renew his passport. Dkt. 11-1 at 9; Dkt. 11-2 at 12. On January 17, 2019, Mr. Ferrari's counsel sent a copy of the passport renewal application to ICE, but she mistakenly sent the application to the wrong address. Dkt. 11-1 at 9; Dkt. 11-2 at 24-28. Mr. Ferrari then learned he needed to renew his passport in person in San Francisco. Dkt. 11-1 at 9.

         On February 20, 2019, when Mr. Ferrari reported to ICE, he was told to return the next day for a phone interview with a Peruvian consular officer, which he did. Dkt. 11-1 at 9; Dkt. 11-2 at 12. ICE also told Mr. Ferrari to purchase airline tickets to San Francisco and return with his renewed passport by March 21, 2019. Dkt. 11-1 at 9; Dkt. 11-2 at 12. On March 8, 2019, Mr. Ferrari reported to ICE to show his airline tickets, and he was arrested and informed that ICE had obtained a travel document to effect his removal to Peru. Dkt. 11-1 at 9; see also Dkt. 11-2 at 20. Mr. Ferrari was then transported to the Northwest Detention Center where he has remained. Dkt. 11 at ¶ 28.

         On March 11, 2019, Mr. Ferrari filed another administrative request for a stay of removal, which ICE denied on April 12, 2019. Dkt. 11 at ¶ 29; Dkt. 10 at ¶ 29.

         On March 15, 2019, Mr. Ferrari initiated the instant action and requested an immediate stay of removal, which the Court granted. Dkts. 1, 2, 5. ICE subsequently cancelled Mr. Ferrari's removal, which had been scheduled for March 22, 2019. Dkt. 10 at ¶¶ 25, 28. Mr. Ferrari's travel document expired on April 4, 2019, and ICE has been working on obtaining another travel document. Id. at ¶ 30.

         On April 18, 2019, an IJ denied Mr. Ferrari's request for bond because the immigration court did not ...


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