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LI v. ASHCROFT

United States District Court, W.D. Washington, Seattle Division
Nov 25, 2002
CASE NO. C02-1960P (W.D. Wash. Nov. 25, 2002)

Opinion

CASE NO. C02-1960P

November 25, 2002


REPORT AND RECOMMENDATION


INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is a native of China who is being detained by the Immigration and Naturalization Service ("INS") pursuant to an order of removal to that country that became final on May 16, 2002. On September 27, 2002, he filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, which challenges, inter alia, the constitutional and statutory authority of the INS to detain him any further, due to the unlikelihood of his removal from this country in the reasonably foreseeable future. (Dkt. #3). His petition is one of several that have been filed in this court over the last three years that raise the same common legal issues regarding indefinite detention by the INS

On September 27, 2002, the Court ordered respondents to file their return and status report within 30 days from the date of that order. (Dkt. #7) On October 28, 2002, respondents filed petitioner's INS administrative record. (Dkt. #9). On the same date, respondents filed a motion to hold the proceedings in abeyance (Dkt #8). Respondents ask for a stay of the proceedings to allow the Solicitor General time to decide whether or not to petition the United States Supreme Court for a Writ of Certiorari in the case of Xi v INS, which held that the presumptively reasonable six-month post-removal order detention period under Zadvydas v Davis, 533 U S. 678 (2001), applies to inadmissible aliens as well as admissible aliens. (Dkt. #8) (citing to Xi v. INS, 298 F.3d 832 (9th Cir. 2002)) On November 13, 2002, petitioner opposed the motion. (Dkt. #10). After a careful review of the record, I recommend that respondents' motion be denied for the reasons set forth below.

Respondents have moved the Court to hold the proceedings in abeyance based on the same reason in Case Nos. C02-1237Z, C02-1834P and C02-1959R

DISCUSSION

In Xi, supra, the Ninth Circuit Court of Appeals held that 8 U.S.C. § 1231(a)(6), which was construed in Zadvydas to limit an alien's post-removal-period detention to six months if there is no likelihood of removal in the reasonably foreseeable future, also "bears the same meaning for an individual deemed inadmissible to the United States under 8 U.S.C. § 1182." Xi, 298 F.3d at 834. The Court reasoned:

Section 1231(a)(6) . . . does not draw any distinction between individuals who are removable on grounds of inadmissibility and those removable on grounds of deportabdity. On its face, the statute applies symmetrically to three classes of aliens, (1) those who are `inadmissible under section 1182'; (2) those who are deportable under sections 1227(a)(1)(C) (violation of nonimmigrant status or condition of entry), 1227(a)(2) (criminal offenses), or 1227(a)(4) (security and related grounds); or (3) those who are a risk to the community or unlikely to comply with the removal order.

* * *

The clear text of the statute, coupled with the Supreme Court's categorical interpretation, leaves us little choice but to conclude that Zadvydas applies to inadmissible individuals . . . The statute, on its face makes no exceptions for inadmissible aliens. The Supreme Court's unqualified holding provides that the statute `does not permit indefinite detention.'
Xi, 298 F.3d at 835-36 (citation omitted). The government petitioned the Ninth Circuit for a rehearing en banc, but on October 10, 2002, the petition was denied. (Dkt. #8 at 5)

The Court notes that is respondents' motion to hold proceedings in abeyance in Case No. C02-1834P states that the government's petition was denied by the Ninth Circuit on October 12, 2002. ( See Case No. C02-1834P, Dkt. #10 at 5).

Respondents now ask the Court to hold petitioner's proceedings in abeyance in order to allow the Solicitor General time to decide whether or not to petition the U.S. Supreme Court for a Writ of Certiorari. Respondents support their motion with three arguments: (1) the Court has discretion to control its own docket and calendar; (2) contrary to the Ninth Circuit's decision, Zadiydas does not apply to inadmissible aliens; and (3) application of the Xi decision will place significant burdens on the INS and will impair the Attorney General's ability to defend the country's Western borders. (Dkt. #8 at 5-11). Petitioner answers that Xi is now the controlling law of the Ninth Circuit, and that there is no authority to ignore the Ninth Circuit's decision and hold the proceedings in abeyance. (Dkt. #10 at 7-12). The Court agrees with petitioner.

The parties agree that Xi is the governing law of the instant petition, and also recognize that the filing of a petition for rehearing or petition for certiorari does not change the binding effect of the Ninth Circuit's decision on this Court. While respondents argue that the Ninth Circuit made the wrong decision in Xi, there is no authority for this Court to simply ignore it See Yong v INS, 208 F.3d 1116, 1119 n. 2 (9th Cir. 2000); Wedbush, Noble, Cooke, Inc v SEC, 714 F.2d 923, 924 (9th Cir. 1983). Yet respondents ask the Court to do just that, based on their assertion that "if the Solicitor General seeks Certiorari it most likely will be granted and the [ Xi] decision eventually overturned. Holding this case in temporary abeyance, therefore, would be an appropriate use of judicial resources." (Dkt. #8 at 9). This Court does not presume to know, nor will it hazard a guess, as to what the U.S. Supreme Court will or will not do if presented with a petition for certiorari. What is certain, is that Xi is the current controlling law of the Ninth Circuit, and that is the law this Court must follow.

The Court is also unpersuaded by respondents' argument that the application of Xi will place significant administrative and litigation burdens on the INS and will impair the Attorney General's ability to defend this country's Western borders. (Dkt. #8 at 9-11). Respondents argue that inadmissible aliens in the Ninth Circuit will now be treated differently than those in other Circuits, and that this is contrary to "Congress's . . . intention . . . to prescribe uniform rules of national application regarding the admission of aliens." (Dkt. #8 at 10) While this may be true, it is not up to this Court to resolve issues of law that are split in the Circuits. Rather, this Court must apply the controlling law of the Ninth Circuit and let the U S Supreme Court resolve questions of law that differ among the Circuits. See Hathorn v Lovorn, 457 U S 255 (1982) (stating that federal questions are resolved by the Supreme Court) Respondents further argue that "[b]y requiring the supervised release of aliens legally outside the United States who have been denied admission, application of the Xi decision will lead to the loss of significant internal control of such aliens, and will impair the Attorney General's ability to control the initial entry of undocumented aliens." (Dkt. #8 at 10-11). The Court is not convinced that the Xi decision makes our Western borders any more vulnerable than before the case was decided. As petitioner notes, the "[ Xi] decision, as important as it is, only affects a small distinguishable group of people," namely "those excludable aliens with final orders whose countries of origin will not accept them back." (Dkt. #10 at 10)

Finally, respondents state that they are only requesting a "temporary and brief stay," and that in "balancing a short stay against the importance of the issues involved, the scale tips in favor of granting this motion. . . ." (Dkt. #8 at 6). The Court disagrees. Respondents have given no time limit as to their request. Instead they ask that the Court await the Solicitor General's decision to file for certiorari. Presumably, this could be as long as three months from the date the Ninth Circuit's decision becomes final. See Rules of the Supreme Court of the Unites States, Rule 13(1), Review on Certiorari Time for Petitioning. The petitioners affected by the Xi decision are those aliens that have been deemed inadmissible, and allege that they have been held longer than six months and that no country will repatriate them in the reasonably foreseeable future. To refuse to review their habeas petitions because the Solicitor General might petition for certiorari, the Supreme Court might grant certiorari, and the Supreme Court might overturn Xi, would be an abuse of the Court's discretion. Accordingly, I recommend that respondents' motion to hold these proceedings in abeyance be denied.

CONCLUSION

For the reasons set forth above, I recommend that respondents' motion to hold proceedings in abeyance be denied, and that petitioner's habeas petition be reviewed immediately. A proposed order accompanies this Report and Recommendation.

In light of the nature of the case, and the court's direction to expedite it in every way possible, this court has shortened the usual time for objections and other responses to this Report and Recommendation. ( See cover letter attached to this Report and Recommendation).

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

Because the court has ordered expedited consideration of these cases, we are directing responses to the Report and Recommendation more quickly than would otherwise be provided under the rules CHAMBERS OF UNITED STATES COURTHOUSE RICARDO S. MARTINEZ 1010 FIFTH AVE UNITED STATES MAGISTRATE JUDGE SEATTLE, WA 98104 (206) 553-1396 November 25, 2002 TO: Thomas W. Hillier II, Counsel for Petitioner Christopher L. Pickrell, Counsel for Respondent FROM RICARDO S MARTINEZ U S Magistrate Judge RE: Li v INS Case No C02-1960P Enclosed are copies of my Report and Recommendation and proposed order and proposed judgment in the above-captioned case The originals are being filed with the Clerk This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case. Objections to the recommendation should be filed and served within seven calendar days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. You should note your objections for consideration on the Judge's motion calendar for the second Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 6, 2002 Thank you for your cooperation Attachments RSM/csm cc Hon Marsha J. Pechman

ORDER DENYING MOTION TO HOLD PROCEEDINGS IN ABEYANCE

The Court, having reviewed respondents' motion to hold proceedings in abeyance, and all papers in support and in opposition to that; the Report and Recommendation of the Honorable Ricardo S Martinez, United States Magistrate Judge, and any objections or responses to that; and the remaining record, finds and Orders as follows:

(1) The Court adopts the Report and Recommendation;

(2) Respondents' Motion to Hold Proceedings in Abeyance (Dkt. #8) is DENIED;
(3) Petitioner's habeas petition shall be noted for consideration on November 29, 2002, and
(4) The Clerk shall send a copy of this Order to all counsel of record, and to Judge Martinez.


Summaries of

LI v. ASHCROFT

United States District Court, W.D. Washington, Seattle Division
Nov 25, 2002
CASE NO. C02-1960P (W.D. Wash. Nov. 25, 2002)
Case details for

LI v. ASHCROFT

Case Details

Full title:MING LI, Petitioner, v. JOHN D. ASHCROFT, et al, Respondents

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

Date published: Nov 25, 2002

Citations

CASE NO. C02-1960P (W.D. Wash. Nov. 25, 2002)