United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
Ferrari remained at large until October 2010. 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. 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
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.
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.
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.
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
April 18, 2019, an IJ denied Mr. Ferrari's request for
bond because the immigration court did not ...