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Mitka v. Ice Field Office Director

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

November 12, 2019

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

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Marsha J. Pechman United States District Judge.

         THIS MATTER comes before the Court on Petitioner's Objections (Dkt. No. 19) and Respondent's Objections (Dkt. No. 18) to the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge. (Dkt. No. 17.) Having reviewed the Report and Recommendation, the Objections, and all related papers, the Court ADOPTS the Report and Recommendation, DENIES the Government's Motion to Dismiss (Dkt. No. 9), and GRANTS in part, DENIES in part Petitioner's habeas corpus petition (Dkt. No. 1). The Court ORDERS Respondent, within 30 days of the filing date of this order, to provide Petitioner with an individualized bond hearing that complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).

         Background

         Petitioner 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. (Dkt. No. 4.) Petitioner entered the United States in October 2016 under the Visa Waiver Program (“VWP”) and was authorized to remain in the United States until January 20, 2017, but overstayed. (Dkt. No. 10, Declaration of Sarah K. Morehead (“Morehead Decl.”), Ex. A at 2.) On May 1, 2018, U.S. Customs and Border Control took Petitioner into custody and ordered his removal from the United States. (Id.) The BIA has denied Petitioner's request for asylum and he now awaits the outcome of his Petition for Review (“PFR”), pending since August 15, 2019. Mitka v. Barr, 19-71153 (9th Cir. 2019). Petitioner has been in custody for more than 18 months.

         In his Report and Recommendation, Magistrate Judge Tsuchida found that Petitioner does not have a statutory basis to obtain a bond hearing[1] and his detention has not been indefinite in violation of Zadvydas v. Davis, 533 US. 678, 682 (2001). (Dkt. No. 17 at 3.) Judge Tsuchida then concluded that Petitioner has a constitutional right to a bond hearing under the factors outlined in Banda v. McAleenan, 385 F.Supp.3d 1099, 1106-07, 1116-18 (W.D. Wash. 2019), appeal pending (Robart, J.), concluded that Petitioner's continued mandatory detention has become unreasonable, and that due process requires the Government to provide him with a bond hearing. (Dkt. No. 17 at 8.)

         Both Parties have now filed objections to the Report and Recommendation.

         Discussion

         I. Legal Standard

         Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

         II. Petitioner's Objections

         Although Petitioner has submitted objections, they contain no argument against the Report and Recommendation. (Dkt. No. 19.) Rather, Petitioner's attorney apologizes to the Court and to Petitioner for failing to respond to the Court's earlier order requesting briefing on the statutory basis for Petitioner's detention, explaining this as a “particularly damning” error because many courts have rejected the government's claimed authority to detain persons who entered through the VWP. (Dkt. No. 19 at 2.) Petitioner also wrote to support Magistrate Judge Tsuchida's conclusion that Petitioner has a due process right to a bond hearing. (Dkt. No. 19 at 2.) The Court has reviewed Petitioner's objections, and finding no substantive argument was raised, does not address the objections further here.

         III. Respondent's Objections

         The Government raises three objections: (1) Petitioner is not entitled to a bond review as a VWP entrant in asylum-only proceedings, (2) Magistrate Judge Tsuchida erred in analyzing Petitioner's due process rights under the factors outlined in Banda, rather than the three-part test articulated in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), and (3) even if the Banda factors were applicable, they were misapplied to the facts in this case. (Dkt. No. 18.)

         A. Bond Review as ...


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