The statute does not equate the procurement of a judicial order staying removal with active prevention of removal. Indeed, legislation equating the exercise of a constitutional right to seek redress in the courts with refusing "to make timely application in good faith for travel or other documents necessary to the alien's departure or ... acting to prevent ... removal," 8 U.S.C. § 1231(a)(1)(C), would be problematic. See Abukar v. Ashcroft, 2004 U.S. Dist. LEXIS 5998, No.

The court concluded that an alien cannot trigger [a constitutional right to be free from indefinite detention by the INS] with his outright refusal to cooperate with INS officials. Sango-Dema v. District Director, I.N.S., 122 F.Supp.2d at 221; See also, 8 U.S.C. § 1231(a)(1)(c) (“... or conspires or acts to prevent the alien’s 13 Case 4:11-cv-03978-WMA-RRA Document 6 Filed 01/10/12 Page 13 of 16 removal subject to an order of removal.”); Hall v. Mukasey, 2009 WL 5627646 (N.D. Ala.)(slip opinion).

ECF Nos. 18, 19. Moreover, it should be noted that in the course of that litigation, Plaintiffs acknowledged that the authority to detain individuals for purposes of removal under 8 U.S.C. § 1231 applied to minors, and was not precluded by the Agreement so long as it did not otherwise violate the statute. See ECF No. 19 at 31 (“[N]othing in the settlement precludes defendants from detaining a child in the course of physically removing him or her, but neither does it permit Case 2:85-cv-04544-DMG-AGR Document 184 Filed 08/06/15 Page 38 of 60 Page ID #:2806 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 months or years of open-ended incarceration.”)

This is when they claim Petitioner failed to appear at an immigration hearing. This is not obstructionist behavior under the cited Case 4:11-cv-03978-WMA-RRA Document 12 Filed 03/16/12 Page 8 of 13 8 statute, 8 U.S.C. § 1231(a)(1)(c), since that statute is only applicable to a post order of removal situation, and where the alien is detained. 2 Seemingly, the Government is also arguing that a failure to cooperate and obstructionist behavior occurred when the Petitioner allegedly refused to board a plane in February of 2011.

Detention under § 1231(a)(6) is discretionary, not mandatory, and the regulations allow for release where the immigrant does not poses a danger or flight risk. 8 U.S.C. 1231(a)(6) (an “alien ordered removed who is inadmissible . . . may be detained beyond the removal period”) (emphasis added); 8 C.F.R. § 241.4(e).

ICE Officers are empowered by statute and regulation to reinstate prior orders of removal against non- citizens, clearly placing them within the class of officials that the Butz court contemplated would be protected by absolute prosecutorial immunity for their administrative actions. See id.; see also 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8.

343-0775 Email: cwang@aclu.org Jayashri Srikantiah Stanford Law School Immigrants' Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way Stanford , CA 94305-8610 650-724-2442 Email: jsrikantiah@law.stanford.edu Monica M Ramirez ACLU Immigrants Rights Project 39 Drumm Street San Francisco , CA 94111 415-343-0775 Email: mramirez@aclu.org Peter Bibring ACLU Foundation of Southern California 1313 West Eight St Los Angeles , CA 90017 213-977-9500 Email: pbibring@aclu-sc.org Peter J Eliasberg ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles , CA 90026-5752 213-977-9500 Email: peliasberg@aclu-sc.org Case 2:06-cv-07452-TJH-FMO Document 78 Filed 10/02/2009 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I hereby certify that on this 2nd day of October 2009, true and correct copies of the Defendant-Respondents' Opposition to Petitioner's Motion For Reconsideration Of Court's Order Regarding 8 U.S.C. § 1231(a)(6) were served via U.S. Postal Service to the following non-ECF filer: Judy Rabinovitz ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York , NY 10004 212-549-2618 /s/ Gjon Juncaj GJON JUNCAJ Senior Litigation Counsel Office of Immigration Litigation, District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Case 2:06-cv-07452-TJH-FMO Document 78 Filed 10/02/2009 Page 10 of 10

30 (same); 8 U.S.C. § 1231(b)(3) (individuals otherwise subject to reinstatement of prior removal order may not be removed if life or freedom would be threatened on enumerated grounds); 8 C.F.R. § 241.8 (individuals otherwise subject to reinstatement of prior removal order under 8 U.S.C. § 1231(a)(5) are referred for interview to determine whether they have a “reasonable fear” of torture or persecution); 8 C.F.R. § 208.31 (describing “reasonable fear” interview).

STATEMENT OF FACTS Detained Individuals When an individual found to be in the United States illegally is ordered removed, DHS, and specifically ICE, generally places that individual in administrative detention until removal is effected. See 8 U.S.C. § 1231; Second Declaration of Ryan Law (“Second Law Decl.”) ¶ 5.

INA Section 241 [a], 8 U.S.C. Sections 1231 raJ. INA Section 241 [a] [2], 8 U.S.c. 1231 [a] [2] provides that the Attorney General "Shall Detain The Alien" during this 90-Day-Removal-Period. The Statute also offers plain language that if Removal cannot be accomplished during the 90-Day-Removal-Period, the Alien shall be released Subject to an order of Supervision.