Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 1 of 16
194,CLOSED,RELATED−G,REOPENED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:06−cv−07452−TJH−FMO

Amadou Lamine Diouf v. Michael B. Mukasey et al Assigned to: Judge Terry J. Hatter, Jr Referred to: Magistrate Judge fernando m. olguin Related Case: 2:06−cv−07451−TJH−CT
Case in other court: 9th CCA, 07−55337
9th CCA, 09−56774 Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)
Petitioner

Date Filed: 11/21/2006 Date Terminated: 04/18/2012 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Amadou Lamine Diouf

represented by Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5236 Fax: 213−977−5297 Email: aarulanantham@aclu−sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0775 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jayashri Srikantiah Stanford Law School Immigrants' Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way. Stanford, CA 94305−8610 650−724−2442 Fax: 650−723−4426 Email: jsrikantiah@law.stanford.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz American Civil Liberities Union Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 212−549−2618 Fax: 212−549−2654 Email: jrabinovitz@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Monica Ramirez Almadani Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067−4643

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424−332−4800 Fax: 424−332−4749 Email: mralmadani@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Bibring ACLU Foundation of Southern California 1313 West Eight Stree Los Angeles, CA 90017 213−977−9500 Email: pbibring@aclu−sc.org TERMINATED: 03/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5228 Fax: 213−977−5297 Email: peliasberg@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Bryan Kaufman ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−5232 Fax: 213−977−5297 Email: mkaufman@aclu−sc.org ATTORNEY TO BE NOTICED
Ranjana Natarajan University of Texas Law School Civil Rights Clinic 727 East Dean Keeton Street Austin, TX 78705 512−232−7222 Email: rnatarajan@law.utexas.edu TERMINATED: 07/16/2009

V.
Respondent
Alberto Gonzales United States Attorney General TERMINATED: 12/19/2007

represented by Assistant US Attorney LA−CV AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213−894−2879 Email: USACAC.Civil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Ira Lester AUSA − Office of US Attorney Civil Division 300 North Los Angeles Street Room 7516−AA Los Angeles, CA 90012 213−894−2464

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Fax: 213−894−7819 Email: robert.lester@usdoj.gov TERMINATED: 12/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Michael Chertoff Secretary, Department of Homeland Security

represented by Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj US Department of Justice Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202−307−8514 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole R Prairie US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 202−532−4074 Fax: 202−305−7000 Email: Nicole.Prairie@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore William Atkinson United States Department of Justice Office of Immigration Litigation − District Court Section P O Box 868 Ben Franklin Station Washington, DC 20044 202−532−4135 Fax: 202−305−7000 Email: theodore.atkinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Julie L Myers Assistant Secretary, United States Immigration and Customs Enforcement

represented by Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole R Prairie (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore William Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Norma Bonales−Garibay Field Office Director US Immigration and Customs Enforcement

represented by Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole R Prairie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore William Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
George Molinar Chief of Detention and Removal Operations, San Pedro Detention Facility

represented by Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole R Prairie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore William Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Respondent Stuart Cortez Officer−in−Charge, San Pedro Detention Facility
Respondent Michael B Mukasey

represented by Assistant US Attorney LA−CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole R Prairie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore William Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole R Prairie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Ira Lester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore William Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/21/2006
11/21/2006 11/21/2006 11/21/2006

# Docket Text
1 PETITION for Writ of Habeas Corpus by a Person In Federal Custody (28:2241) Case assigned to Judge Stephen V. Wilson and referred to Magistrate Judge Fernando M. Olguin.(Filing fee $ 5) , filed by petitioner Amadou Lamine Diouf.(rrey, ) (Entered: 11/30/2006)
2 NOTICE of Interested Parties filed by Petitioner Amadou Lamine Diouf. (rrey, ) (Entered: 11/30/2006)
3 NOTICE OF MOTION AND MOTION for Preliminary Injunction filed by petitioner Amadou Lamine Diouf. Lodged proposed order. (rrey, ) (Entered: 11/30/2006)
4 MEMORANDUM OF POINTS AND AUTHORITIES in Support of MOTION for Preliminary Injunction 3 filed by petitioner Amadou Lamine Diouf. (rrey, ) (Entered: 11/30/2006)

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11/21/2006 12/01/2006 12/05/2006
12/05/2006 12/11/2006
12/11/2006 12/13/2006
12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/20/2006 12/21/2006 12/21/2006

5 NOTICE of Related Case(s) filed by Petitioner Amadou Lamine Diouf. Related Case(s): CV 04−2270 TJH (Mc), CV 04−6656 TJH (MLG) and other related cases (rn, ) (Entered: 12/04/2006)
Motions No Longer Referred: MOTION for Preliminary Injunction 3 (vdr, ) (Entered: 12/07/2006)
6 ORDER TO REASSIGN CASE PURSUANT TO Section 5.4 of General Order 224 by Judge John F. Walter, Chair of the Case Management and Assignment Committee, all related Indefinite Detention cases are assigned to Judge Terry J. Hatter, Jr. The case number will now read as follows: CV 06−7452 TJH (FMO). The Related Group Control Case Number is: CV 06−7452 TJH (FMO).(rn, ) (Entered: 12/05/2006)
Judge Terry J. Hatter, Jr added. Judge Stephen V. Wilson no longer assigned to case. (rn, ) (Entered: 12/05/2006)
7 MINUTES held before Judge Terry J. Hatter Jr: Thew court haveing read and considered said motion hereby orders defendants to file any opposition to the above reference motion no later than 12/18/2006 and plaintiff−Petitioner to file a reply if any to the opposition no later than 12/26/2006. Court Reporter: Not Reported. (yc, ) (Entered: 12/12/2006)
12 PROOF OF SERVICE filed by petitioner Amadou Lamine Diouf, re MOTION for Preliminary Injunction 3 , Memorandum in Support of Motion 4 , Notice of Related Case(s) 5 , Certificate of Interested Parties 2 , was served on 11/27/2006. (yc, ) (Entered: 12/21/2006)
8 ORDER REQUIRING RETURN TO PETITION FOR WRIT OF HABEAS CORPUS by Judge Fernando M. Olguin, re Petition (2241) 1 . Respondent shall serve and file a Notice of Appearance no later than December 27, 2006. Respondent shall file a single Motion to Dismiss no later than thirty (30) days from the filing date of this Order. Respondent shall serve and file a Return to the Petition no later than February 12, 2007. Petitioner shall serve and file a Reply to the Return no later than April 13, 2007.(vdr, ) (Entered: 12/13/2006)
9 NOTICE of Appearance filed by Attorney Robert I Lester on behalf of Respondents.(vdr, ) (Entered: 12/19/2006)
10 EX PARTE APPLICATION for Order Directing Respondents to Comply With Court−Ordered Filing Deadlines filed by Petitioner Amadou Lamine Diouf.Lodged Proposed Order.(vdr, ) (Entered: 12/19/2006)
11 DECLARATION of Ahilan T. Arulanantham re EX PARTE APPLICATION for Order Directing Respondents to Comply With Court−Ordered Filing Deadlines 10 filed by Petitioner Amadou Lamine Diouf. (vdr, ) (Entered: 12/19/2006)
MOTIONS EX PARTE APPLICATION for Order Directing Respondents to Comply With Court−Ordered Filing Deadlines 10 . REFERRED to District Judge Hatter. (vdr, ) (Entered: 12/19/2006)
18 OPPOSITION to Diouf MOTION for a Preliminary Injunction 3 filed by respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez. (jp) (Entered: 01/13/2007)
19 OPPOSITION to Diouf EX PARTE APPLICATION filed on or about December 19, 2006 14 filed by respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez. (jp) (Entered: 01/13/2007)
13 ORDER by Judge Terry J. Hatter Jr, granting petitioner ex parte application for order directing respondents to comply with court oredered filin deadlines is DENIED.(yc, ) (Entered: 12/27/2006)
14 EX PARTE APPLICATION for Leave to file supplemental opposition fo Dioufs motion for preliminary injunction; memorandum; declaration filed by defendants−respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez. Lodged order (lc, ) Modified on 12/28/2006 (lc, ). (Entered: 12/28/2006)

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12/26/2006 12/28/2006 12/28/2006 01/04/2007 01/30/2007 01/31/2007
02/02/2007 02/02/2007 02/02/2007 02/14/2007 02/15/2007 02/28/2007 03/02/2007
03/02/2007 03/02/2007 03/06/2007

20 REPLY to Defendant Opposition to Petitioner MOTION for Preliminary Injunction 3 filed by petitioner Amadou Lamine Diouf. (jp) (Entered: 01/16/2007)
15 ORDER by Judge Terry J. Hatter Jr granting defendants EX PARTE APPLICATION for Leave to file supplemental opposition to Dioufs motion for preliminary injunction 14 (lc, ) (Entered: 12/28/2006)
16 SUPPLEMENTAL OPPOSITION to MOTION for Preliminary Injunction 3 filed by defendants Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez. (lc, ) (Entered: 12/28/2006)
17 ORDER Granting motion for preliminary injunction by Judge Terry J. Hatter Jr,(bp, ) (Entered: 01/05/2007)
21 PETITIONER'S UNOPPOSED REQUEST to Enlarge Time Due to Health Issues filed by Petitioner Amadou Lamine Diouf.Lodged Proposed Order. (vdr, ) (Entered: 01/30/2007)
22 ORDER by Judge Terry J. Hatter Jr GRANTING REQUEST to Enlarge Time Due to Health Issues 21 . For the reasons set forth in Petitioner Motion to Enlarge time Due to Health Issues, the Court hereby EXTENDS the time during which the government must hold a hearing pursuant to this Order of January 5, 2007 granting Petitioner Motion for a Preliminary Injunction in this case. The government must hold the hearing as described in that order by no later than 2/9/2007. (jp) (Entered: 02/02/2007)
23 PETITIONER'S EX PARTE APPLICATION for Order Directing Immigration Court to Create Transcript of Petitioner's Hearing re Continued Detention; Memorandum of Points and Authorities; Declaration and Exhibit in Support Thereof filed by Petitioner Amadou Lamine Diouf.Lodged Proposed Order.(vdr, ) (Entered: 02/02/2007)
24 ORDER by Judge Terry J. Hatter Jr, re EX PARTE APPLICATION for Order for Directing Immigration Court to Create Transcript 23 is DENIED.(see file)(yc, ) (Entered: 02/06/2007)
25 OPPOSITION to EX PARTE APPLICATION for Order for Directing Immigration Court to Create Transcript 23 filed by defendant Stuart Cortez. (yc, ) (Entered: 02/12/2007)
26 UNOPPOSED EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME to File Return to Petition for Writ of Habeas Corpus; Memorandum of Points and Authorities; Declaration filed by Respondents.Lodged Proposed Order.(vdr, ) (Entered: 02/14/2007)
27 ORDER by Judge Fernando M. Olguin, granting EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File 26 . Respondents' time to file a Return is extended to February 28, 2007. Petitioner shall file a Reply by March 30, 2007.(vdr, ) (Entered: 02/15/2007)
28 RETURN to Petition for Writ of Habeas Corpus (2241) 1 filed by Defendant−Respondents.(vdr, ) (Entered: 02/28/2007)
29 NOTICE OF APPEAL to 9th CCA filed by Defendants−Respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez. Appeal of Order 17 Filed On: 1/4/07; Entered On: 1/5/07; Appeal fee Waived. cc: Robert I. Lester, Assistant United States Attorney; Peter J. Eliasberg. (car, ) (Entered: 03/06/2007)
30 REPRESENTATION STATEMENT re Appeal to Circuit Court, 29 . (car, ) (Entered: 03/06/2007)
Civil Appeals Docketing Statement received from Defendant−Respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, George Molinar, Stuart Cortez forwarded to 9th CCA. RE: Appeal to Circuit Court, 29 (car, ) (Entered: 03/06/2007)
31 CERTIFICATE OF RECORD Transmitted to USCA re Appeal to Circuit Court, 29 filed by Alberto Gonzales, Norma Bonales−Garibay, Michael Chertoff, George Molinar, Julie L Myers, Stuart Cortez (car, ) (Entered: 03/06/2007)

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03/06/2007 03/22/2007
03/27/2007 03/29/2007 05/18/2007 08/22/2007 09/24/2007 09/25/2007
11/16/2007 12/05/2007 12/07/2007 12/07/2007 12/10/2007 12/14/2007 12/19/2007 12/19/2007 01/04/2008
01/04/2008

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: Appeal to Circuit Court, 29 (car, ) (Entered: 03/06/2007)
32 NOTIFICATION by Circuit Court of Appellate Docket Number 07−55337, 9th CCA regarding Appeal to Circuit Court, 29 filed by Alberto Gonzales,, Norma Bonales−Garibay,, Michael Chertoff,, George Molinar,, Julie L Myers,, Stuart Cortez,. (car, ) (Entered: 03/22/2007)
34 NOTICE filed by petitioner Amadou Lamine Diouf that he has been released from immigration detention. (yc, ) (Entered: 03/31/2007)
33 TRAVERSE to Petition for Writ of Habeas Corpus (2241) 1 filed by Petitioner Amadou Lamine Diouf.(vdr, ) (Entered: 03/29/2007)
35 SUPPLEMENTAL MEMORANDUM of Points and Authorities in Support of Petition for Writ of Habeas Corpus (2241) 1 . Lodged Proposed Order.(vdr, ) (Entered: 05/18/2007)
36 SUPPLEMENTAL AUTHORITY IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS filed by Petitioner Amadou Lamine Diouf.(vdr) (Entered: 08/30/2007)
38 REQUEST for Decision filed by Petitioner Amadou Lamine Diouf.(vdr) (Entered: 09/28/2007)
37 ORDER by Judge Fernando M. Olguin. Counsel for the parties shall appear for oral argument on November 14, 2007 at 10:00 AM before Magistrate Judge Fernando M. Olguin. Petitioner's Request for Decision, filed on September 24, 2007, is denied without prejudice.(vdr) (Entered: 09/25/2007)
39 STIPULATION AND ORDER TO CONTINUE HEARING, approved by Judge Fernando M. Olguin. Oral Argument is reset to 12/5/2007 at 10:00 AM before Magistrate Judge Fernando M. Olguin. (vdr) (Entered: 11/16/2007)
40 MINUTES OF ORAL ARGUMENT held before Judge Fernando M. Olguin. No later than December 7, 2007, petitioner's counsel shall file a Supplemental Memorandum Re: New Authority. Court Smart: CS 12/5/07. (vdr) (Entered: 12/05/2007)
41 RECORD ON APPEAL sent to Circuit Court re: Appeal number, 07−55337; Record consists of 3 volumes; re Appeal to 9th Circuit Court of Appeals, 29 (lr) (Entered: 12/12/2007)
42 SUPPLEMENTAL MEMORANDUM REGARDING ADDITIONAL LEGAL AUTHORITY filed by Petitioner Amadou Lamine Diouf. (vdr) (Entered: 12/14/2007)
43 NOTICE OF ERRATUM filed by Petitioner Amadou Lamine Diouf, correcting Supplemental Memorandum 42 . (vdr) (Entered: 12/14/2007)
44 TRANSCRIPT filed for proceedings held on 12/05/07 Court Reporter: Exceptional Reporitng Services, Inc.. (ha) (Entered: 12/14/2007)
45 NOTICE OF FILING REPORT AND RECOMMENDATION by Magistrate Judge Fernando M. Olguin. Objections to R&R due by 1/4/2008. (Attachments: # 1 Report and Recommendation) (vdr) (Entered: 12/19/2007)
46 REPORT AND RECOMMENDATION issued by Magistrate Judge Fernando M. Olguin Re: Petition for Writ of Habeas Corpus (2241) 1 . (vdr) (Entered: 12/19/2007)
47 First EXPARTE APPLICATION for Extension of Time to File Objection to R&R as to Report and Recommendation (Issued) 46 , Notice of Report and Recommendation 45 filed by Respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez. (Attachments: # 1 Declaration Declaration of Robert I. Lester# 2 Declaration Declaration of Gjon Juncaj# 3 Proposed Order Proposed order granting ex parte application)(Lester, Robert) (Entered: 01/04/2008)
48 NOTICE of Change of Attorney Information for attorney Peter Bibring counsel for Petitioner Amadou Lamine Diouf. Adding Peter Bibring as attorney as counsel of record for Amadou Lamine Diouf for the reason indicated in the G−06 Notice. Filed by Plaintiff−Petitioner Amadou Lamine Diouf (Bibring, Peter) (Entered: 01/04/2008)

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01/04/2008 01/07/2008 01/14/2008 02/06/2008
02/06/2008 03/21/2008 03/21/2008 03/21/2008 04/09/2008 10/02/2008 11/13/2008
12/24/2008
04/27/2009

49 OBJECTION to Report and Recommendation (Issued) 46 of United States Magistrate Judge filed by Plaintiff−Petitioner Amadou Lamine Diouf. (Attachments: # 1 Exhibit Exhibit 16)(Bibring, Peter) (Entered: 01/04/2008)
50 ORDER by Judge Fernando M. Olguin, granting EX PARTE APPLICATION 47 for Extension of Time to File Objection to Report and Recommendation 46 . Respondents shall file their objections by January 14, 2008. (vdr) (Entered: 01/07/2008)
51 OBJECTION to Report and Recommendation (Issued) 46 filed by Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez.(Lester, Robert) (Entered: 01/14/2008)
52 ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Terry J. Hatter, Jr. IT IS ORDERED THAT: Judgment shall be entered granting the Petition and ordering petitioner released on the conditions already imposed by the immigration Judge's Order dated February 9, 2007. The Clerk shall serve copies of this Order and the Judgment herein on the parties. (mr) . (Entered: 02/06/2008)
53 JUDGMENT by Judge Terry J. Hatter Jr, Related to: R&R Adopting Report and Recommendations, 52 . IT IS ADJUDGED that the Petition is granted and petitioner shall be released on the conditions already imposed by the Immigration Judge's Order dated February 9, 2007.(MD JS−6, Case Terminated). (mr) (Entered: 02/06/2008)
54 NOTICE OF APPEAL to the 9th CCA filed by RespondentsMichael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez. FEE WAIVED. (Attachments: # 1 Exhibit Order and Adopted Report & Recommendation# 2 Exhibit Judgment# 3 Exhibit Representation Statement)(Juncaj, Gjon) (Entered: 03/21/2008)
55 NOTICE OF APPEAL NOTIFICATION form issued regarding Notice of Appeal to 9th Circuit Court of Appeals, 54 as to Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez. (lr) (Entered: 03/21/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals; re: Notice of Appeal to 9th Circuit Court of Appeals, 54 (lr) (Entered: 03/21/2008)
56 NOTICE of Change of Address by Ahilan T Arulanantham attorney for Petitioner Amadou Lamine Diouf, changing address to 1313 West Eighth Street, Los Angeles, CA 90017. Filed by counsel of record Ahilan T. Arulanantham (Arulanantham, Ahilan) (Entered: 04/09/2008)
57 APPEAL RECORD RETURNED from 9th CCA Received: Volume(s): 1 throuugh 3; RE: Appeal Record Sent to USCA (A−26) 41 (car) (Entered: 10/02/2008)
58 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 29 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Alberto Gonzales, Stuart Cortez, Julie L Myers, Notice of Appeal to 9th Circuit Court of Appeals, 54 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Michael B Mukasey, Stuart Cortez, Julie L Myers, CCA # 07−55337, 08−55504. Petitioner − Appellee's motion to extend time to file a petition for panel rehearing until December 3, 2008 is GRANTED. Order received in this district on 11/13/08. (lr) (Entered: 11/14/2008)
59 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 29 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Alberto Gonzales, Stuart Cortez, Julie L Myers, Notice of Appeal to 9th Circuit Court of Appeals, 54 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Michael B Mukasey, Stuart Cortez, Julie L Myers, CCA # 07−55337, 08−55504. Respondents − Appellants are directed to file a response to Petitioner − Appellee's Petition for Rehearing En Banc, filed with this court on December 3, 2008. The response shall not exceed 15 pages, shall be filed within 21 days of the date of this order, and Respondent − Appellants shall provide this court with 50 copies of any such response. Order received in this district on 12/24/08. (lr) (Entered: 12/30/2008)
60 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 29 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Alberto

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05/06/2009 05/18/2009 05/22/2009
07/06/2009
07/31/2009 08/03/2009 08/03/2009 08/10/2009 08/10/2009 08/13/2009 09/08/2009

Gonzales, Stuart Cortez, Julie L Myers, Notice of Appeal to 9th Circuit Court of Appeals, 54 filed by George Molinar, Michael Chertoff, Norma Bonales−Garibay, Michael B Mukasey, Stuart Cortez, Julie L Myers, CCA # 07−55337, 08−55507. The panel has unanimously voted to deny Petitioner−Appellee's petition for rehearing. Judge Fisher and M. Smith have voted to deny Petitioner−Appellee's petition for rehearing en banc, and Judge Farris has so recommended. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R. App. P. 35. The petition for rehearing and rehearing en banc is DENIED. Order received in this district on 4/27/09. (lr) (Entered: 04/29/2009)
61 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 54 , Notice of Appeal to 9th Circuit Court of Appeals, 29 CCA # 08−55504, 07−55337. The Decision of the District Court is REVERSED in part; VACATED and REMANDED in part. Mandate received in this district on 5/06/09. (lr) Modified on 9/23/2010 (lr). (Entered: 05/06/2009)
62 JUDGMENT by Judge Terry J. Hatter, Jr,. Pursuant to the Opinion and Judgment of the Ninth Circuit Court of Appeals, entered on September 18, 2008, and the Mandate 61 issued on May 6, 2009, IT IS ADJUDGED THAT the Petition for Writ of Habeas Corpus is denied. (mr) (Entered: 05/18/2009)
63 MINUTES OF IN CHAMBERS−ORDER AND NOTICE TO ALL PARTIES (NON−MOTION) by Judge Terry J. Hatter, Jr. Counsel are hereby notified that the above matter is set the court's calendar for a Status Conference re the Mandate of the 9th CCA, Appeal No. 08−55504 and Appeal No. 07−55337 61 , reversed in part; vacated and remanded in part, set for July 6, 2009 at 10:00 a.m. (Case reopened. MD JS− 5.) (lom) (Entered: 05/26/2009)
64 MINUTES OF Status Conference re Mandate of the 9th Circuit Court of Appeals, Appeal No. 08−55504 and Appeal No. 07−55337, reversed in part, vacated and remanded in part hearing held before Judge Terry J. Hatter, Jr. Based upon the statements made today on the record, the court hereby sets the following deadlines: Briefing schedule is due August 3, 2009; Replies no later than August 10, 2009; and Further Status Conference September 14, 2009 at 10:00 a.m. Court Recorder: CS 7/6/09. (lom) (Entered: 07/06/2009)
67 NOTICE of Appearance filed by attorney Nicole Prairie on behalf of Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez (Prairie, Nicole) (Entered: 07/31/2009)
68 BRIEF filed by Defendant−Respondents Alberto Gonzales, Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez. (Attachments: # 1 Exhibit 1−32)(Prairie, Nicole) (Entered: 08/03/2009)
69 BRIEF filed by Plaintiff−Petitioner Amadou Lamine Diouf. Supplemental Brief on 8 U.S.C. 1231 (a)(6) (Arulanantham, Ahilan) (Entered: 08/03/2009)
70 REPLY filed by Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez to Brief (non−motion non−appeal) 69 (Attachments: # 1 Supplement To Defendant−Respondents Appendix of Exhibits (Exs. 33−34), # 2 Certificate of Service)(Juncaj, Gjon) (Entered: 08/10/2009)
71 BRIEF filed by Plaintiff−Petitioner Amadou Lamine Diouf. Petitioner's Response to Defendant−Respondents' Opening Brief on Remand regarding Brief (non−motion non−appeal) 68 , Reply (non−motion), Reply (non−motion) 70 . (Attachments: # 1 Exhibit Exhibits 17 − 19)(Arulanantham, Ahilan) (Entered: 08/10/2009)
72 NOTICE of Appearance filed by attorney Gjon Juncaj on behalf of Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez (Juncaj, Gjon) (Entered: 08/13/2009)
73 MINUTES OF IN CHAMBERS − NOTICE TO ALL PARTIES OF COURT ORDER bt Judge Terry J. Hatter, Jr. On the Court's own motion, the Status Conference hearing date, re Mandate of the 9th Circuit, currently scheduled for September 14, 2009, is hereby ordered continued to September 28, 2009 at 10:00 a.m. (lom) (Entered: 09/09/2009)

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 11 of 16

09/09/2009 09/23/2009 09/23/2009 09/29/2009
10/02/2009
10/09/2009
10/19/2009 10/19/2009
11/09/2009 11/09/2009 11/09/2009 11/10/2009 11/10/2009

74 ORDER by Judge Terry J. Hatter, Jr. IT is Ordered that the petition for a preliminary injunction be, and hereby is, Denied. (See attachment for further details). (Made JS−6. Case Terminated.) (mr) Modified on 9/16/2009 (mr). (Entered: 09/14/2009)
75 NOTICE OF MOTION AND MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) filed by Plaintiff−Petitioner Amadou Lamine Diouf. (Arulanantham, Ahilan) (Entered: 09/23/2009)
76 NOTICE OF MOTION AND MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) filed by Plaintiff−Petitioner Amadou Lamine Diouf. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 09/23/2009)
77 MINUTES OF IN CHAMBERS − ORDER AND NOTICE TO ALL PARTIES (NON−MOTION) by Judge Terry J. Hatter, Jr. Counsel are hereby notified that a Status Conference hearing re the Mandate of the Ninth Circuit Court of Appeals, Appeal No. 08−55504 and Appeal No. 07−5533, reversed in part; vacated and remanded in part, now has been set for October 19, 2009 at 10:00 a.m., an appearance will be necessary. (lom) (Entered: 09/30/2009)
78 OPPOSITION opposition re: MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) 76 , MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) 75 filed by Respondents Michael Chertoff, Julie L Myers, Norma Bonales−Garibay, Michael B Mukasey, George Molinar, Stuart Cortez. (Juncaj, Gjon) (Entered: 10/02/2009)
79 REPLY in support of MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) 76 , MOTION for Reconsideration re Order, Terminated Case 74 Court's Order Regarding 8 U.S.C. Section 1231 (a)(6) 75 filed by Petitioner Amadou Lamine Diouf. (Arulanantham, Ahilan) (Entered: 10/09/2009)
80 ORDER by Judge Terry J. Hatter, Jr denying 75 , 76 Motion for Reconsideration. The Court has considered Petitioner's motion for reconsideration of the Court's order denying his request for a preliminary injunction, together with the moving and opposing papers. It is Ordered that the motion be, and hereby is, Denied. (lom) (Entered: 10/19/2009)
81 MINUTES OF STATUS CONFERENCE re Mandate of the 9th Circuit Court of Appeal, Appeal No. 08−55504 and Appeal No. 07−55337, reversed in part, vacated and remanded held before Judge Terry J. Hatter, Jr. Based upon the statements made today on the record, the court hereby DENIES the Plaintiff's motion for reconsideration of the court's order denying the request for preliminary injunction, 75 , 76 . Court Recorder: CS 10/19/09. (lom) (Entered: 10/20/2009)
82 NOTICE OF APPEAL to the Federal Circuit filed by Plaintiff−Petitioner Amadou Lamine Diouf. (Attachments: # 1 Representation Statement, # 2 Order, # 3 Civil Appeals Docketing Statement)(Arulanantham, Ahilan) (Entered: 11/09/2009)
83 Civil Appeals Docketing Statement received from Plaintiff−Petitioner Amadou Lamine Diouf forwarded to 9th CCA. RE: Notice of Appeal to Federal Circuit Court of Appeals 82 (Arulanantham, Ahilan) (Entered: 11/09/2009)
86 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 85 as to Petitioner Amadou Lamine Diouf; Receipt Number: 126001, Paid in the amount of $455. (lr) (Entered: 11/12/2009)
84 NOTICE OF ERRATA filed by Petitioner Amadou Lamine Diouf. correcting Notice of Appeal to Federal Circuit Court of Appeals 82 (Arulanantham, Ahilan) (Entered: 11/10/2009)
85 NOTICE OF APPEAL to the 9th CCA filed by Plaintiff−Petitioner Amadou Lamine Diouf. (Attachments: # 1 Representation Statement, # 2 Order, # 3 Civil Docketing Statement)(Arulanantham, Ahilan) (Entered: 11/10/2009)

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 12 of 16

11/10/2009 02/12/2010 03/09/2010 04/26/2010 08/26/2010 09/20/2010
09/22/2010 09/22/2010 09/24/2010

87 NOTIFICATION by Circuit Court of Appellate Docket Number 09−56774, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 85 as to Petitioner Amadou Lamine Diouf. (lr) (Entered: 11/12/2009)
88 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. Order received in this district on 2/12/10. This is a preliminary injunction appeal. Appellees' unopposed second motion for enlargement of time to file the answering brief is granted. Answering brief is due February 19, 2010. Optional reply brief is due within 14 days after service of the answering brief. (cbr) (Entered: 02/16/2010)
92 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. A review of the briefing and the record indicates that this is not a preliminary injunction appeal. Briefing is completed. Order received in this district on 9/20/2010. (lr) (Entered: 09/23/2010)
93 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. The Secretary's motion to strike and all related filings shall be referred to the merits panel resolution. Order received in this district on 9/20/2010. (lr) (Entered: 09/23/2010)
89 RECORD ON APPEAL sent to Circuit Court re: Appeal number, 09−56774 Record consists of 3 volumes re Notice of Appeal to 9th Circuit Court of Appeals 85 (lr) (Entered: 08/30/2010)
94 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. This court's jurisdiction over this appeal is not clear. The issue presented is whether aliens subjected to prolonged detention under 8 U.S.C. 1231(a)(6) are entitled to an individualized bond hearing. Petitioner−Appellant Amadou Lamine Diouf, however, is no longer detained; nor has he been redetained and denied a bond hearing. These circumstances raise questions of both mootness and ripeness that we are required to raise sua sponte. See WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1977)(en banc)( Although the parties did not raise the question of our jurisdiction, we have raised it sua sponte, as we must.); see also Gator.com Corp. v. L.L. Bean, Inc. 398 F.3d 1125, 1128−29(9th Cir. 2005)(en banc)( For a case to fall within the parameters of our limited judicial power, it is not enough that there may have been a live controversy when the case was decided by court whose judgment we are reviewing. Rather, Article III requires that a live controversy persist throughout all stages of the litigation.)(internal quotation marks and citation omitted); Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993)[T]he ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action. (quoting Chemerinksy, Federal Jurisdicton 99(1989)) (internal quotation marks omitted). The parties therefore are ordered to submit supplemental briefs addressing this court's jurisdiction. These supplemental briefs shall be no longer than 10 pages or 2,800 words and shall be submitted no later than 7 days after the entry of this order. Parties who are registered for ECF must file the supplemental brief electronically without submission of paper copies. Parties who are not registered ECF filers must file the original supplemental brief plus 15 paper copies. Order received in this district on 9/20/2010. (lr) (Entered: 09/23/2010)
90 TRANSCRIPT for proceedings held on 10/19/09; 11:10 AM. Court Reporter/Electronic Court Recorder: ECHO REPORTING, INC., phone number (858) 453−7590. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/13/2010. Redacted Transcript Deadline set for 10/23/2010. Release of Transcript Restriction set for 12/21/2010. (mw) (Entered: 09/22/2010)
91 NOTICE OF FILING TRANSCRIPT filed for proceedings 10/19/09: 11:10 AM (mw) (Entered: 09/22/2010)
95 TRANSCRIPT for proceedings held on 7/6/2009; 10:05 AM. Court Reporter/Electronic Court Recorder: ECHO REPORTING, INC., phone number (858) 453−7590. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 13 of 16

09/24/2010 09/27/2010
09/28/2010 09/28/2010 03/18/2011 03/24/2011 03/25/2011 03/31/2011 03/31/2011

Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/15/2010. Redacted Transcript Deadline set for 10/25/2010. Release of Transcript Restriction set for 12/23/2010. (mw) (Entered: 09/24/2010)
96 NOTICE OF FILING TRANSCRIPT filed for proceedings 7/6/2009; 10:05 AM (mw) (Entered: 09/24/2010)
103 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. Diouf's motion to file a substitute reply brief for the purpose of citing two government report addressing the Department of Homeland Security's compliance or noncompliance with post−order custody review regulations is construed as a motion to introduce new evidence not included in the district court record. We ordinarily do not consider evidence not presented to the district court. See United States v. $22,474.00 in U.S. Currency, 246 F. 3 1212, 1218(9th Cir. 2001). Diouf's motion, filed March 25, 2010, is therefore DENIED. A party may permissibly submit supplemental authorities to the court. See Fed. R. App. P. 28(j). Assuming Diouf can establish that these reports are offered as legal authorities rather than as new evidence their submission under Rule 28(j) would be permissible. Diouf's motion accordingly is denied without prejudice to whether the government reports could be resubmitted as supplemental authorities, a question upon which we express no opinion at this time. See Trans−Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986)(Rule 28(j) permits a party to bring new authorities to the attention of the court; it is not designed to bring new evidence through the back door). National Immigrant Justice Center's December 28, 2009 motion to file an amicus brief is GRANTED. The clerk shall file the brief. Diouf's unopposed, March 25, 2010 motion to withdraw his March 9, 2010 motion to take judicial notice of Appendices I and II of the reply brief is GRANTED. The government's unopposed, March 15, 2010 motion to strike Appendices I and II from that reply brief is GRANTED. The government's March 31, 2010 motion to strike the new evidence offered in Diouf's March 25, 2010 motion to file a substitute reply brief is DENIED AS MOOT. Order received in this district on 4/14/2011. (lr) (Entered: 04/18/2011)
104 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. The supplemental brief submitted on September 27, 2010 is filed. Order received in this district on 4/14/2011. (lr) (Entered: 04/18/2011)
105 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. The Corrected Supplemental Brief Concerning Jusrisdiction lodged by Appellees on September 28, 2010(Dkt. 47), is accepted for filing. The clerk shall file the brief. The court will disregarded the brief submitted by Appellees on September 27, 2010(Dkt. 46). Order received in this district on 4/14/2011. (lr) (Entered: 04/18/2011)
97 MINUTES IN CHAMBERS−ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that the above matter is set on the Court's calendar on April 4, 2011 at 10:00 a.m. for Status Conference re the March 7, 2011 Opinion of the 9th Circuit Court of Appeal, Appeal No. 09−56774, reversed and remanding the order re Petitioner's motion for preliminary injunction. (lom) (Entered: 03/21/2011)
98 MINUTES IN CHAMBERS−ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that pursuant to the March 18, 2011 97 this case is hereby reopened. (Case reopened. MD JS−5.) (lom) (Entered: 03/25/2011)
99 NOTICE of Change of Attorney Information for attorney Peter Bibring counsel for Petitioner Amadou Lamine Diouf.Peter Bibring is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by Plaintiff Amadou Diouf (Bibring, Peter) (Entered: 03/25/2011)
100 NOTICE of Appearance (Atkinson, Theodore) (Entered: 03/31/2011)
101 Joint STIPULATION to Reset filed by Respondents Norma Bonales−Garibay, Michael Chertoff, Stuart Cortez, George Molinar, Michael B Mukasey, Julie L Myers. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 03/31/2011)

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 14 of 16

04/01/2011 04/14/2011
07/07/2011
07/26/2011 09/28/2011
10/06/2011 11/04/2011 11/30/2011 12/18/2011 12/19/2011 01/23/2012 01/23/2012

102 ORDER Granting Stipulation re Request to take the Status Conference off thecalendar 101 by Judge Terry J. Hatter, Jr. IT IS ORDERED that the status conference scheduled for April 4, 2011, at 9:00 a.m., is hereby taken off calendar pending issuance of the mandate, at which time the Court will determine what further action is necessary. (lom) (Entered: 04/04/2011)
106 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf CCA # 09−56774. The unopposed motion for an extension of time to file a petition for panel rehearing and petition for rehearing en banc, filed April 12, 2011, is GRANTED. The petition shall be filed with the court on or before June 6, 2011. Parties who are registered for ECF must file the petition electronically without submission of paper copies. Parties who are not registered ECF filers must file the original petition plus 50 paper copies. Order received in this district on 04/14/2011. (dmap) (Entered: 04/18/2011)
107 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf CCA # 09−56774. Within 21 days from the date of this order Petitioner−appellant Amadou Diouf shall file a response to respondents−appellees petition for rehearing and rehearing en banc. The response shall not exceed 15 pages or 4,200 words. Parties who are registered for ECF must file the response electronically without submission of paper copies. Parties who are not registered ECF filers must file the original response plus 50 paper copies. Order received in this district on 7/7/2011. (dmap) (Entered: 07/07/2011)
108 NOTICE of Appearance filed by attorney Michael Bryan Kaufman on behalf of Petitioner Amadou Lamine Diouf (Kaufman, Michael) (Entered: 07/26/2011)
109 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56674. The panel has voted to deny Appellees' petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Appellees' petition for rehearing en banc, filed June 6, 2011, is DENIED. Order received in this district on 9/28/2011. (lr) (Entered: 09/29/2011)
110 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 , CCA # 09−56774. The Judgment of the district court is Reversed and Remanded. Mandate received in this district on 10/6/11. (car) (Entered: 10/11/2011)
111 MINUTES IN CHAMBERS−ORDER AND NOTICE TO ALL PARTIES Counsel by Judge Terry J. Hatter, Jr. Counsel are hereby notified that the above matter is set on the Court's calendar for Status Conference re the Mandate of the 9th CCA, Appeal No. 09−56774 110 , reversed and remanded to this Court set for December 5, 2011 at 10:00 a.m. (lom) (Entered: 11/04/2011)
112 MINUTES IN CHAMBERS by Judge Terry J. Hatter, Jr. On the Court's own motion, the Status Conference re the Mandate of the 9th CCA, Appeal No. 09−56774, reversed and remanded to this Court, currently scheduled for December 5, 2011, is hereby ordered continued to December 19, 2011 at 10:00 a.m. Parties are ordered to appear. (lom) (Entered: 11/30/2011)
113 Joint STIPULATION to Continue Status Conference from December 19, 2011 to January 23, 2012 filed by Respondents Norma Bonales−Garibay, Michael Chertoff, Stuart Cortez, George Molinar, Julie L Myers. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 12/18/2011)
114 ORDER Granting Stipulation to Continue 113 by Judge Terry J. Hatter, Jr. IT IS ORDERED that the status conference scheduled for December 19, 2011, at 10:00 a.m., is hereby taken off calendar, and is rescheduled for January 23, 2012 at 10:00 a.m. (lom) (Entered: 12/19/2011)
115 Joint STIPULATION to Continue Status Conference from January 23, 2012 to March 5, 2012 filed by Respondents Norma Bonales−Garibay, Michael Chertoff, Stuart Cortez, George Molinar, Michael B Mukasey, Julie L Myers. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 01/23/2012)
116 ORDER Granting Stipulation to Continue, 115 by Judge Terry J. Hatter, Jr.IT IS ORDERED that the status conference scheduled for January 23, 2012, at 10:00 a.m., is

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 15 of 16

03/01/2012
03/23/2012 04/18/2012 04/19/2012 05/07/2012 08/10/2012 09/18/2012 10/16/2012 02/14/2013

hereby taken off calendar, and is rescheduled for March 5, 2012 at 10:00 a.m. (lom) (Entered: 01/23/2012)
117 MINUTES − NOTICE TO ALL PARTIES OF COURT ORDER by Judge Terry J. Hatter, Jr. On the Court's own motion, the Status Conference re Mandate of the 9th CCA, Appeal No. 09−56774, currently scheduled for March 5, 2012, is hereby ordered continued to May 7, 2012 at 10:00 a.m. Parties are ordered to appear. Counsel for Respondents, who are located in Washington, D.C. and would like to appear by telephone are directed to contact the Courtroom Deputy, Yolanda Skipper at (213) 894−5276, at least three (3) business days before the hearing date, and provide her with thetelephone number (land lines only; no cell phones) at which the Court can reach you. Be available at that number for at least one−half hour before the time scheduled for the hearing. (lom) (Entered: 03/01/2012)
118 NOTICE OF MOTION AND Joint MOTION for Order for Judgment Under Rule 58 filed by Petitoner Amadou Lamine Diouf. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 03/23/2012)
119 ORDER re Motion for Order 118 by Judge Terry J. Hatter, Jr. As set forth in the parties' Joint Stipulation, Petitioner is currently released on bond pursuant to the immigration judge's order of January 4, 2007. Accordingly, and pursuant to the parties' stipulation, this Court orders that Petitioner shall remain released under the terms of the immigration judge's order absent changed circumstances. Further, should Respondents re−detain Petitioner, they must provide him with a hearing under the terms set forth in the Ninth Circuit's decision. (lom) (Entered: 04/18/2012)
120 ORDER from 9th CCA # 09−56774 re Notice of Appeal to 9th Circuit Court of Appeals 85 . Petitioner's "protective" motion for attorney's fees, filed 3/26/2012, is construed as a motion for an extension of time. So construed, the motion is GRANTED. The petitioner's motion for attorney's fees must be filed within 90 days of the date of this Order. The Order received in this district on 4/19/2012. (jp) (Entered: 04/20/2012)
121 MINUTE ORDER (IN CHAMBERS) ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that pursuant to the Order of April 18, 2012, the Status Conference re Mandate of the 9th CCA, Appeal No. 09−56774, currently scheduled for May 7, 2012 is hereby moot and no longer necessary. No appearance needed. (ys) (Entered: 05/07/2012)
122 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf CCA # 09−56774. Appellees' motion to transfer appellant's request for attorney's fees to the district court, filed July 30, 2012, is denied. Appellees' unopposed motion for an extension of time to file a response to appellant's request for attorney's fees, filed July 30, 2012, is granted. The response shall be filed with the Clerk of Court on or before September 28, 2012. Order received in this district on 8/10/2012. (dmap) (Entered: 08/15/2012)
123 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. Appellees' unopposed motion for an extension of time to file a response to appellant's request for attorneys' fees, filed 9/14/12, is GRANTED. The response shall be filed with the Clerk of Court on or before 10/12/12. Order received in this district on 9/18/12. (car) (Entered: 09/21/2012)
124 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf CCA # 09−56774. Appellees' unopposed motion for an extension of time to file a response to appellant's request for attorney's fees, filed October 12, 201 is granted. The response shall be filed with the Clerk of Court on or before November 13, 2012. Order received in this district on 10/16/2012. (dmap) (Entered: 10/18/2012)
125 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. Order received in this district on 2/14/13. On December 13, 2013, the parties informed the court of a settlement of petitioner's motion for attorney's fees and advised the court that the parties would file a stipulation of dismissal or a further status report on or before January 31, 2013. No further filings have been received. Accordingly, within seven days of the entry of this order, the parties, are directed to file a joint status report with the Clerk of Court. (cbr)

Case: 2:06-cv-07452-TJH-FMO As of: 11/24/2018 01:14 PM PST 16 of 16

02/25/2013

(Entered: 02/20/2013)
126 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 85 filed by Amadou Lamine Diouf, CCA # 09−56774. The Motions are dismissed. See Order for more details. Order received in this district on 2/25/13. (mat) (Entered: 02/28/2013)

 
 . • •~ Case 2:06-cv-07452-TJH-FMO Document 17 Filed 01/04/07 Page 1 of 4 Page ID #:27 ; \ ,.

1 PETER J. ELIASBERG (SBN 189110) AHILAN T. ARULANANTHAM (SBN 237841)
2 RANJANA NATARAJAN (SBN 2':30149) ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1616 Beverly Boulevard
'' 4 Los Angele~ California 90026 Tel: (213) 9t7-9500
5 Fax: (213) 250-3919

['"'•

ORIGINAl§...

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FILED

U

·. CLERK, US. DISTRICT COiJRT

JAN - 4 2007

,......_

- CBYENTRAL DT._RI

OF~OANIA
DEPUTY .. ····~

UNITED STATES DISTRICT COURT v

FOR THE CENTRAL DISTRICT OF CALIFORNIA

0 WESTERN DIVISION

11 12 AMADOULAMINEDIOUF,

Case

No.:

(i\/Q~-14'5?.

IS~
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A# 79-768-086,

13

Plaintiff-Petitioner,

14

vs.

15 ALBERTO GONZALES United

16 States Attorney General; MICHAEL

17

CofHHEoRmTeO1aFnFa1

Secretary,_ Department Securi!)'; JULIE L.

MYERS, Assistant Secretary, United

18 States Immigration and Customs

Enforcement· NORMA BONALES-

19 GARIBAY, Field Office Director

U.S. Immigration and Customs

2 O

Enforcement; GEORGE MOLINAR, Chief of Detention and Removal

21

Qperations San Pedro Detention Facility; STUART CORTEZl Officer-

22 In-Charge, San Pedro Detent10n

Facility,

~
IPROPOSEBl ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

23

Defendant-Respondents.

24

25

26

27

28

/7

• Case 2:06-cv-07452-TJH-FMO Document 17 Filed 01/04/07 Page 2 of 4 Page ID #:28
~ 4

1 Additional counsel:

2

JUDY RABINOVITZ* AMERICAN CIVIL LIBERTIES FOUNDATION

3 IMMIGRANTS' RIGHTS PROJECT

125 Broad Streetf 18th Floor

4

New York, NY 0004 Telephone: (212) 549-2618

5 Facsunile: (212) 549-2654

6

CRCILLIA D. WANG (CSB #187782} MONICA M. RAMIREZ (CSB #234893)**

7

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

8

IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street

9

San Francisco, CA 94111 Telephone: (415) 343-0775

10 Facsimile: (415) 395-0950

11

JAYASHRI SRIKANTIAH (CSB #189566) STANFORD LAW SCHOOL IMMIGRANTS'

12

RIGHTS CLINIC Crown Quadrangle

13

559 Natfian Abbott Way Stanford, CA 94305-8610

14

Telephone: (650) 724-2442 Facsimile: (650) 723-4426

15

16

*Application for admission pro hac vice forthcoming **Pending admission to Central District of California

17

18

19

20

21

22

23

24

25

26

27

28

• •• Case 2:06-cv-07452-TJH-FMO Document 17 Filed 01/04/07 Page 3 of 4 Page ID #:29

1

[~ORDER GRANTING MOTION FOR PRELIMINARY

2

INJUNCTION

o

3

The Court finds that Petitioner has demonstrated a substantial likelihood.".~.:.I!I~' of

~:r:

4 success on the merits, that he will suffer irreparable injury in the absence of a~::;

5 6 preliminary injunction, and that the balance of hardship tips sharply in his favor.

7 Therefore, this Court hereby ORDERS that the Defendant-Respondents and their

8 employees, assigns, and all those acting in concert with them are preliminarily 9
10 enjoined as follows:

11

12

13

14

15

16

..._____ )< Petitioner must be Kleased-within thirty days l:lflless hi:: is afforded an ~

17 individual hearing before an immigration judge concerning whether his prolonged

18

19 detention is justified. At the hearing, the immigration judge shall order Petitioner

20 released on reasonable conditions unless the government shows by clear and

21 convincing evidence that Petitioner presents a sufficient danger or risk of flight to
22

23 justify his detention in light of how long he has been detained already and the

24 Ill
25
26 Ill
27
28 Ill

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1 likelihood of his case being finally resolved in favor of the government in the

2 reasonably foreseeable future.
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4 IT IS SO ORDERED.

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 Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 1 of 20 Page ID #:83

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9

10 AMADOU LAMINE DIOUF,

11

Petitioner,

12

v.

13 MICHAEL B. MUKASEY, et al.,

14

Respondents.

15

) NO. CV 06-7452 TJH (FMO) ) ) ) ) ) REPORT AND RECOMMENDATION OF ) UNITED STATES MAGISTRATE JUDGE ) ) ) )

16

17

This Report and Recommendation is submitted to the Honorable Terry J. Hatter, Jr., United

18 States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of

19 the United States District Court for the Central District of California.

20

INTRODUCTION

21

On November 21, 2006, Amadou Lamine Diouf (“petitioner”), through counsel, filed a

22 Petition for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”), pursuant to 28

23 U.S.C. § 2241. Petitioner challenges his detention by the Bureau of Immigration and Customs

24 Enforcement of the Department of Homeland Security (“ICE”) for nearly two years while removal

25 proceedings have been pending against him. On February 28, 2007, respondents1 filed a Return

26

27 1 Michael B. Mukasey, United States Attorney General, is substituted for his predecessor.
28 Fed. R. Civ. P. 25(d)(1).

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 2 of 20 Page ID #:84

1 to the Petition (“Return”). Petitioner filed a Traverse and Reply to the Return (“Reply”) on March

2 29, 2007. On May 18, 2007, petitioner filed a Supplemental Memorandum of Points and

3 Authorities in Support of the Petition (“Supp. Mem.”). On August 22, 2007, petitioner filed a

4 Supplemental Authority in Support of the Petition. Oral argument was heard on December 5,

5 2007. On December 7, 2007, petitioner filed a Supplemental Memorandum Regarding Additional

6 Legal Authority.

7

Having considered all the briefing and oral argument presented to the court regarding the

8 Petition, it is recommended that the Petition be granted.

9

BACKGROUND

10

Petitioner is a native and citizen of Senegal. (Petition, Exh. 1 (Declaration of Amadou Diouf

11 (“Diouf Decl.”)) at ¶ 2; Return, Exh. 6 at 35). On February 4, 1996, petitioner was admitted to the

12 United States on a student visa. (Diouf Decl. at ¶ 4; Return, Exh. 6 at 35). After finishing his

13 degree, petitioner remained in the United States in violation of his visa. (Diouf Decl. at ¶ 4; Return,

14 Exh. 6 at 35). On January 23, 2003, petitioner was convicted in the Grant County Superior Court

15 (Case No. 02-1-00860-0) of possession of less than 40 grams of marijuana (Wash. Rev. Code §

16 69.50.410(e)), a misdemeanor. (Return, Exh. 5 at 30-31). The same day, petitioner was

17 sentenced to 75 days in county jail with 30 days suspended for one year of good behavior. (Id.

18 at 31).

19

On January 24, 2003, the Immigration and Naturalization Services (“INS”)2 served petitioner

20 with a Notice to Appear and initiated removal proceedings. (Return, Exh. 6 at 34-35). Petitioner

21 was charged with being removable as an alien: (1) who has remained in the United States for a

22 time longer then permitted, Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

23 § 1227(a)(1)(B); (2) who failed to maintain or comply with the conditions of a change of status, INA

24 § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i); and (3) who was convicted of a violation of a State

25 law relating to a controlled substance, other than a single offense involving possession for one’s

26
27 2 The INS was abolished on March 3, 2003, and its functions were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, §
28 471, 116 Stat. 2135, 2205 (2002).

2

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 3 of 20 Page ID #:85

1 own use of 30 grams or less of marijuana, INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). (See

2 id. at 35).

3

At a bond hearing on February 24, 2003, an Immigration Judge (“IJ”) set petitioner’s bond

4 at $5,000.00 after petitioner admitted the allegations contained in the Notice to Appear, conceded

5 removability, requested voluntary departure and waived his right to appeal. (See Return, Exhs.

6 7 at 36 & 8 at 37-38). The IJ granted voluntary departure until June 24, 2003, and provided that

7 if petitioner did not voluntarily depart by that date, the “order shall be withdrawn without further

8 notice or proceedings and . . . [petitioner] shall be removed to Senegal on the charges in the

9 Notice to Appear.” (Id., Exh. 8 at 37).

10

On March 3, 2003, petitioner posted bond. (See Return, Exh. 9 at 39-40). Petitioner,

11 however, did not voluntarily depart pursuant to the IJ’s order and, on August 15, 2003, ICE sent

12 petitioner a Notice requesting that he appear for removal on September 4, 2003. (See id., Exh.

13 10 at 41). Petitioner did not appear and, as a result, ICE cancelled petitioner’s bond on October

14 15, 2003. (See id., Exh. 11 at 42 & 12 at 43).

15

On March 29, 2005, more than 17 months later, ICE arrested petitioner at his home and

16 placed him in detention pending execution of his final order of removal. (See Return at 3 & Exh.

17 13 at 44). On May 27, 2005, petitioner filed a motion to reopen his immigration proceedings with

18 the Executive Office of Immigration Review, which was denied by an IJ on June 28, 2005, as

19 untimely. (See id., Exhs. 15 at 50 & 16 at 65). On July 3, 2006, petitioner appealed the IJ’s denial

20 of his motion to reopen to the Board of Immigration Appeals (“BIA”). (See id., Exh. 26 at 89). The

21 BIA dismissed petitioner’s appeal on July 26, 2006. (See id., Exh. 27 at 107-09).

22

On July 10, 2006, while petitioner’s motion to reopen appeal was pending with the BIA and

23 more than a year after he was taken into custody, ICE conducted a “File Custody Review” of 24 petitioner’s case without a hearing.3 (See Petition at 6-7 & Exh. 3). On July 25, 2006, ICE issued

25 a “Decision to Continue Detention” indicating that “[b]ased on [petitioner’s] criminal history and lack

26
27 3 Although respondent indicates that petitioner received two file custody reviews on July 21, 2005, and July 24, 2006, (see Return at 4 & 6), the evidence in the record indicates that the review
28 was conducted on July 10, 2006. (See Petition, Exh. 3).

3

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 4 of 20 Page ID #:86

1 of family support, [he is] considered a flight risk and will remain in custody until ICE establishes

2 a sufficient release plan.” (Id., Exh. 4).

3

Between June 2005, and February 2006, petitioner, proceeding pro se, filed three petitions

4 for review in the Ninth Circuit Court of Appeals, which were all denied on procedural grounds. See

5 Diouf v. Gonzales, No. 05-73252 (9th Cir. filed June 2, 2005); Diouf v. Gonzales, No. 05-75026

6 (9th Cir. filed Aug. 29, 2005) & Diouf v. Gonzales, No. 06-70731 (9th Cir. filed Feb. 8, 2006). On

7 April 13, 2006, petitioner filed a fourth petition for review and a motion to stay deportation in the

8 Ninth Circuit. See Diouf v. Clement, No. 06-71922 (9th Cir. filed April 13, 2006). On July 21,

9 2006, the Ninth Circuit granted a stay of removal. See Diouf, No. 06-71922 (9th Cir. July 21,

10 2006) (granting petitioner’s motion for stay of removal pending disposition of petition for review).

11

Petitioner filed a fifth petition for review on August 15, 2006, which the Ninth Circuit

12 consolidated with his prior petition. See Diouf v. Clement, No. 06-73991 (9th Cir. filed Aug. 15,

13 2006) & Diouf, No. 06-71922 (9th Cir. Oct. 16, 2006) (sua sponte consolidating cases 06-71922

14 and 06-73991). On January 17, 2007, the court appointed counsel for petitioner. See Diouf, 06-

15 73991 (9th Cir. Jan. 17, 2007) (granting motion to proceed in forma pauperis and appointing pro

16 bono counsel). Both petitions for review are currently pending in the Ninth Circuit.

17

On November 21, 2006, petitioner filed the instant Petition challenging the legality of his

18 detention. On the same day, he filed a Motion for Preliminary Injunction, which District Judge

19 Hatter granted on January 4, 2007. (See Court’s Order of January 4, 2007). Judge Hatter

20 ordered that petitioner be “afforded an individual hearing before an immigration judge concerning

21 whether his prolonged detention is justified[]” and that petitioner be “released on reasonable

22 conditions unless the government shows by clear and convincing evidence that [he] presents a

23 sufficient danger or risk of flight to justify his detention in light of how long he has been detained

24 already and the likelihood of his case being finally resolved in favor of the government in the

25 reasonably foreseeable future.” (Id. at 3-4).

26

Pursuant to Judge Hatter’s Order, a bond hearing was conducted before IJ D. D. Sitgraves

27 who ordered petitioner released on $5,000.00 bond in a written decision issued on February 9,

28 2007. (See Reply, Exh. 10 at 7-11). Specifically, the IJ found that the “government . . . admitted

4

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 5 of 20 Page ID #:87

1 in court that [petitioner] is not a serious danger[]” and failed to show that petitioner is a flight risk.

2 (Id. at 10-11). Accordingly, the IJ determined that the government failed to meet its burden of

3 proof of establishing by clear and convincing evidence that petitioner “is a risk of flight or a

4 danger.” (Id. at 11). The IJ concluded that the government “only provided . . . speculation during

5 [the] hearing as to how long it would take in the foreseeable future to finally resolve[ petitioner]’s

6 case in favor of the government with the pending petitions before the Ninth Circuit.” (Id.).

7

Petitioner posted bond and was released on or about February 9, 2007. (See Supp. Mem.

8 at 1-2 & Reply, Exh. 10 at 7-11). The government has appealed the IJ’s order to the BIA. (See

9 Supp. Mem., Exh. C at 1-3). In addition, the government appealed Judge Hatter’s Order granting

10 petitioner a preliminary injunction to the Ninth Circuit. (See id. at 1). Both appeals are currently

11 pending. (See id.).

12

DISCUSSION

13

In his Petition, petitioner challenges his detention, (Petition at 7), and raises the following

14 claims for federal habeas relief:

15

1. Petitioner’s detention violates the INA because the statute under which he is

16 detained does not authorize detention beyond the brief period necessary to complete removal

17 proceedings and does not authorize detention where there is no significant likelihood of removal

18 in the reasonably foreseeable future. (Petition at 14).

19

2. Petitioner’s detention violates the INA because the statute under which he is

20 detained does not authorize detention for a prolonged period of time without a hearing to

21 determine whether his prolonged detention is justified. (Id. at 14-15).

22

3. Petitioner’s prolonged detention without a hearing violates his right to be free from

23 prolonged non-criminal detention without adequate justification and sufficient procedural

24 safeguards as guaranteed by the Due Process Clause. (Id. at 15).

25

4. Petitioner’s detention violates the Due Process Clause because it has become so

26 prolonged that it is no longer reasonably related to its purpose of effectuating his removal. (Id.).

27

5. Petitioner’s prolonged detention violates his right to be free from arbitrary detention

28 as guaranteed by the International Covenant on Civil and Political Rights. (Id. at 16).

5

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 6 of 20 Page ID #:88

1 I. SUBJECT MATTER JURISDICTION.

2

Before addressing petitioner’s contentions, the court must consider whether it has

3 jurisdiction to reach the merits of the Petition. See Nadarajah v. Gonzales, 443 F.3d 1069, 1075

4 (9th Cir. 2006) (holding that although neither party raised the question of the court’s jurisdiction

5 to consider a § 2241 petition, the court is “obligated to consider it sua sponte[]”) (citing Justices

6 of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-02, 104 S.Ct. 1805, 1809-10 (1984) (italics in 7 original). Although the REAL ID Act of 20054 (“REAL ID Act”) divests this court of jurisdiction over

8 habeas petitions challenging orders of removal, see Puri v. Gonzalez, 464 F.3d 1038, 1041 (9th

9 Cir. 2006), district courts retain subject matter jurisdiction over § 2241 petitions challenging the

10 legality of an alien’s detention. See Nadarajah, 443 F.3d at 1075 (“By its terms, the jurisdiction-

11 stripping provision [of the REAL ID Act] does not apply to federal habeas corpus provisions that

12 do not involve final orders of removal.”); Hernandez v. Gonzales, 424 F.3d 42, 42-43 (1st Cir.

13 2005) (per curiam) (The REAL ID Act was “not intended to ‘preclude habeas review over

14 challenges to detention that are independent of challenges to removal orders.’”) (quoting H.R.

15 Rep. No. 109-72 (2005), as reprinted in 2005 U.S.C.C.A.N. 240, 300); see also Zadvydas v. Davis,

16 533 U.S. 678, 688, 121 S.Ct. 2491, 2498 (2001) (“§ 2241 habeas corpus proceedings remain

17 available as a forum for statutory and constitutional challenges to” detention after the 90-day

18 “removal-period” defined in 8 U.S.C. 1231(a)(1)).

19

20

21 4 On May 11, 2005, the “Emergency Supplemental Appropriations Act for Defense, the

22 Global War on Terror, and Tsunami Relief, 2005,” Pub. L. No. 109-13, 119 Stat. 231, became law. Division B of the Act is referred to as the “REAL ID Act of 2005” (“REAL ID Act”). Id. Section 106

23 of the REAL ID Act amends portions of INA § 242, 8 U.S.C. § 1252, and changes the scope of

judicial review of removal orders. Lotawa v. Gonzalez, 2006 WL 3251799, at *1 (E.D. Cal. 2006), 24 report & recommendation adopted by 2007 WL 30567 (E.D. Cal. 2007). Under the changes to the

25

INA effected by § 106 of the REAL ID Act, a petition for review to the court of appeals is the exclusive means of judicial review of an administrative order of removal, deportation, or exclusion.

26 See INA § 242(a)(5) & (b)(9), 8 U.S.C. § 1252(a)(5) & (b)(9). “The plain language of Section 106 thus divests the district court of jurisdiction in habeas corpus cases involving challenges to a final

27 order of removal, deportation, or exclusion, and places exclusive jurisdiction for judicial review of

such orders in the federal appeals court for the district in which the removal order was issued.” 28 Lotawa, 2006 WL 3251799, at *1; accord Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006).

6

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 7 of 20 Page ID #:89

1

Moreover, “an appeal from an order granting or denying a preliminary injunction does not

2 divest the district court of jurisdiction to proceed with the action on the merits – i.e., the merits are

3 not matters ‘involved in the appeal.’” G&M Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir. 1973);

4 accord Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir. 1996) (per curiam) (holding that although the

5 filing of a notice of appeal ordinarily divests the district court of jurisdiction over issues decided in

6 the order being appealed, the appeal of a preliminary injunction did not divest the district court of

7 jurisdiction to enter a permanent injunction). As a result, the government’s appeal of Judge

8 Hatter’s preliminary injunction does not preclude this court from issuing a ruling on the merits of

9 the instant Petition. Accordingly, this court has jurisdiction under § 2241 to consider petitioner’s

10 challenge to the lawfulness of his detention by ICE.

11 II. DETENTION CLAIM.

12

A. Controlling Detention Statute.

13

Petitioner contends that his detention is governed by 8 U.S.C. § 1226. (Petition at 2; see

14 also Reply at 4). Section 1226 states that “an alien may be arrested and detained pending a

15 decision on whether the alien is to be removed from the United States[,]” and that the Attorney

16 General may elect to continue to detain the arrested alien or release the alien subject to certain

17 conditions. See 8 U.S.C. § 1226(a) & (c). Section 1226(c)(1)(B) provides that where an alien “is

18 deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii),

19 (B), (C), or (D) of this title,” the Attorney General “shall take” the alien into custody. Section

20 1227(a)(2)(B)(i) states that, “[a]ny alien who at any time after admission has been convicted of a

21 violation of . . . any law or regulation of a State, the United States, or a foreign country relating to

22 a controlled substance . . . , other than a single offense involving possession for one’s own use

23 of 30 grams or less of marijuana, is deportable.” Because petitioner was convicted of possession

24 of less than 40 grams of marijuana, a controlled substance, the applicable provision governing his 25 detention is § 1226(c).5

26
27 5 Petitioner repeatedly refers to his conviction as possession of less than 30 grams of marijuana, (see, e.g., Diouf Decl. at ¶ 6 & Reply at 1), and stated at oral argument that the plea
28 agreement petitioner entered into provides that his conviction was for possession of less than 30

7

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 8 of 20 Page ID #:90

1

The government contends that petitioner’s detention is controlled by 8 U.S.C. § 1231.

2 (Return at 7). Section 1231(a) states that except as otherwise provided in that section, “when an

3 alien is ordered removed, the Attorney General shall remove the alien from the United States

4 within a period of 90 days (in this section referred to as the ‘removal period’). . . . [¶] During the

5 removal period, the Attorney General shall detain the alien.” 8 U.S.C. 1231(a)(1)(A) & (C). An

6 alien who has been ordered removed, and who has been determined by the Attorney General to

7 be “unlikely to comply with the order of removal,” may be detained beyond the removal period.

8 Id. at § 1231(a)(6). If, however, “the removal period is judicially reviewed and if a court orders a

9 stay of the removal of the alien,” the removal period begins on “the date of the court’s final order.”

10 Id. at § 1231(a)(1)(B)(ii).

11

Here, it is undisputed that petitioner’s petitions for review of his final order of removal are

12 pending before the Ninth Circuit, and that a stay of removal is in effect. (See Petition at 5; id., Exh.

13 2 & Return at 5-6). Section 1231 authorizes the Attorney General to detain aliens during, and in

14 certain circumstances beyond, the “removal period,” but if a court orders a stay of removal, the

15 removal period does not begin until “the date of the court’s final order.” 8 U.S.C. §

16 1231(a)(1)(B)(ii). Because that date has not arrived, the removal period has not begun, and

17 therefore, § 1231 does not govern petitioner’s detention.

18

Section 1226, on the other hand, authorizes the Attorney General to detain an alien pending

19 a determination of removability, and makes detention mandatory if the alien has committed certain

20

21 grams. (See Transcript of Hearing Re: Petition (“Hearing Trans.”) at 17-18). In addition, the

22 government indicated at oral argument that it believes petitioner is being detained as a “visaoverstay.” (See id. at 18-19). However, the only evidence in the record establishes that petitioner

23 was convicted of possession of less than 40 grams of marijuana, (see Return, Exh. 5 at 30-31),

and neither party has provided any evidence indicating otherwise. Thus, the court will analyze the 24 legality of petitioner’s detention under §1226(c).

25

Moreover, petitioner’s detention based upon his other charged offenses of overstaying his student visa (8 U.S.C. § 1227(a)(1)(B)) and failing to voluntarily depart (8 U.S.C. §

26 1227(a)(1)(C)(i)) is governed by 8 U.S.C. § 1226(a). Because detention under § 1226(a) is permissive, as opposed to mandatory under § 1226(c), the court’s analysis regarding the legality

27 of petitioner’s mandatory detention as a criminal alien is also applicable if he is being held

permissively. If petitioner is entitled to release from mandatory detention, it follows that he is also 28 entitled to release from permissive detention.

8

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 9 of 20 Page ID #:91

1 criminal offenses. See 8 U.S.C. § 1226(c). Here, the statutory removal period has not yet begun

2 and, because petitioner has been charged with, among other things, removability as a criminal

3 alien, petitioner is being detained under § 1226. See Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir.

4 2005) (reversing and remanding with instructions to release a petitioner on bail, who had been

5 detained pending appeal for two years and eight months under § 1226(c), unless an IJ determined

6 after a hearing that the government had proved that the petition was a flight risk or danger to the

7 community); see also id. at 1243-50 & n. 7 (Tashima, J., concurring) (noting that petitioner was

8 detained under § 1226 because “this court has stayed his removal pending its review of the BIA’s

9 decision[]” and therefore the petitioner “has not entered his 90-day removal period under” §

10 1231(a)); Kothandaraghipathy v. DHS, 396 F.Supp.2d 1104, 1107 (D. Ariz. 2005) (holding that

11 because the Ninth Circuit had granted petitioner a stay of removal, his “current detention is

12 pursuant to the pre-removal order detention statute, 8 U.S.C. § 1226, rather than the post-removal

13 order detention statute, 8 U.S.C. § 1231”).

14

B. Legality of Petitioner’s Detention under 8 U.S.C. §1226(c).

15

Relying on the principles articulated by the Ninth Circuit in Nadarajah, petitioner argues that

16 he is entitled to immediate release from detention because “no statute authorizes his prolonged

17 and indefinite detention[.]” (Petition at 8). In Nadarajah, the Ninth Circuit ordered an alien 18 released who had been detained pursuant to 8 U.S.C. §§ 1225(b)(1)(B)(ii) and (b)(2)(A),6 one of

19 “the general immigration detention statutes,” for more than five years pending a final determination

20 of removability. 443 F.3d at 1076 & 1084. The petitioner remained in detention “without any

21 established time line for a decision on when he may be released from detention.” Id. at 1075.

22

23

24
6 In relevant part, § 1225(b)(1)(B)(ii) states that, “[i]f the [asylum] officer determines at the 25 time of the interview [upon arrival in the United States] that an alien has a credible fear of 26 persecution . . . , the alien shall be detained for further consideration of the application for
asylum[,]” and § 1225(b)(2)(A) provides that, “in the case of an alien who is an applicant for 27 admission, if the examining immigration officer determines that an alien seeking admission is not
clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding 28 under section 1229a of this title.”

9

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1

“[C]onsistent with the construction given by the Supreme Court to similar statutes,” the

2 Ninth Circuit held that “the general immigration detention statutes do not authorize the Attorney

3 General to incarcerate detainees for an indefinite period.” Nadarajah, 443 F.3d at 1078 & 79 4 (citing Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2504-05).7 Rather,

5

the detention must be for a reasonable period, and only if there is a

6

“significant likelihood of removal in the reasonably foreseeable future. After

7

a presumptively reasonable six-month detention, once the alien provides

8

good reason to believe that there is no significant likelihood of removal in the

9

reasonably foreseeable future, the Government must respond with evidence

10

sufficient to rebut that showing.”

11 Id. at 1079-80 (quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2505). The Ninth Circuit

12 concluded that its statutory construction analysis was “bolstered by considering the immigration

13 statutes as a whole[,]” and in particular by reference to the Patriot Act provisions authorizing the

14 detention of suspected terrorists or other threats to national security for more than six months,

15 subject to specific limitations and procedural protections not provided for in the general

16 immigration detention statutes. Nadarajah, 443 F.3d at 1078-80.

17

18 7 In Zadvydas, the Supreme Court

19

reasoned that a statute permitting indefinite detention of an alien would raise

20

a serious constitutional problem under the Fifth Amendment’s Due Process

Clause. Applying the constitutional avoidance doctrine in order to avoid this

21

potential problem, Zadvydas held that § 1231(a)(6), read in light of the

22

Constitution’s demands, limits an alien’s post-removal-period detention to a

period reasonably necessary to bring about that alien’s removal and does not

23

permit indefinite detention. Zadvydas then concluded that once removal is

no longer reasonably foreseeable, continued detention is no longer

24

authorized by § 1231(a)(6). [¶] . . . [U]nder Zadvydas, a presumptively

25

reasonable period of post-removal detention is limited to six months, and that after this period expires, an alien must be released if there is no significant

26

likelihood of removal in the reasonably foreseeable future.

27 Tuan Thai v. Ashcroft, 366 F.3d 790, 794 (9th Cir. 2004) (internal quotation marks, citations and brackets omitted) (italics in original) (citing Zadvydas, 533 U.S. at 689-90 & 699, 121 S.Ct. at
28 2498-99 & 2503-04).

10

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1

Characterizing “the six-month period as the touchstone of reasonableness[,]” the Ninth

2 Circuit observed that “the Supreme Court has given further guidance as to what it considers to be

3 a ‘reasonable’ length of detention for aliens” convicted of a crime and detained under § 1226(c)

4 pending a determination of removability. Nadarajah, 443 F.3d at 1080 (citing Demore v. Kim, 538

5 U.S. 510, 513 & 529-31, 123 S.Ct. 1708, 1712 & 1720-21 (2003)). In Demore, petitioner filed a

6 habeas petition challenging the constitutionality of § 1226(c)’s mandatory detention provision. In

7 upholding the constitutionality of the mandatory detention provision, the Supreme Court

8 emphasized that petitioner did not dispute “the validity of his prior convictions” or “INS’ conclusion

9 that he is subject to mandatory detention under § 1226(c).” Demore, 538 U.S. at 513-14, 123

10 S.Ct. at 1712. The Supreme Court concluded that “the government could detain aliens who had

11 been convicted of a crime for ‘the brief period necessary for their removal proceedings[,]’” and

12 although the alien in that case “had been detained for over six months, which was ‘somewhat

13 longer than the average[,]’” the Supreme Court “viewed that ‘temporary’ confinement as

14 permissible.” Nadarajah, 443 F.3d at 1080 (quoting Demore, 538 U.S. at 513 & 530-31, 123 S.Ct.

15 at 1712 & 1721); see also id. at 1081 & n. 4 (“There is no indication anywhere in Demore that the

16 Court would countenance an indefinite detention[,]” and “references to the brevity and limited

17 nature of the confinement are found throughout Demore.”) (italics in original); cf. Zadvydas, 533

18 U.S. at 699, 121 S.Ct. at 2504 (absent special circumstances, an alien ordered removed whose

19 removal is not reasonably foreseeable may not be indefinitely detained, but only for “a period

20 reasonably necessary to secure removal”); Tijani, 430 F.3d at 1242 (interpreting § 1226(c) as

21 precluding protracted detention where petitioner contests removability).

22

In Nadarajah, the Ninth Circuit reasoned that the petitioner’s detention was “more akin to

23 the situation in Zadvydas,” which involved “‘indefinite’ and ‘potentially permanent[]’” detention. 443

24 F.3d at 1080 (quoting Zadvydas, 533 U.S. at 690-91, 121 S.Ct. at 2498-99) (italics in original).

25 The Nadarajah Court stated that “Demore endorses the general proposition of ‘brief’ detentions,

26 with a specific holding of a six-month period as presumptively reasonable[ and, thus, a] detention

27 of nearly five years – ten times the amount of time the Supreme Court has considered acceptable

28

11

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 12 of 20 Page ID #:94

1 absent a special showing – is plainly unreasonable under any measure[,]” including § 1226(c).

2 Id. (italics in original).

3

Nadarajah does not cite Tijani’s brief opinion holding unlawful an alien’s prolonged

4 detention under § 1226, but the holdings of the two cases are consistent. To avoid deciding the

5 constitutionality of § 1226(c) as applied to the petitioner in that case, who had been detained for

6 more than two years and eight months pending a direct appeal of his order of removal, Tijani

7 construed

8

the authority conferred by § 1226(c) as applying to expedited removal of

9

criminal aliens. Two years and eight months of process is not expeditious;

10

and the foreseeable process in this court, where the government’s brief in

11

Tijani’s appeal of the removal was only filed last month after two extensions

12

of time, is a year or more.

13 430 F.3d at 1242. Tijani held that the petitioner was entitled to release unless the government

14 provided him with a bond hearing and established that he was a flight risk or a danger to the 15 community.8 See id. In a concurring opinion examining the merits of the petitioner’s claim, Judge

16 Tashima concluded, among other things, that the petitioner was entitled to be released because

17 his detention was unreasonable under Demore and Zadvydas. See id. at 1249-50 (Tashima, J.,

18 concurring).

19

C. Length of Detention.

20

21

22 8 Tijani is distinguishable from Nadarajah in that the latter ordered the petitioner released on

23 conditions set by the Attorney General, while the former observed that petitioner be given a bond

hearing (or be released if a bond hearing was not timely held). However, it is clear from Nadarajah 24 that no useful purpose would have been served by conducting a bond hearing because the court

25

also held that: (1) ICE abused its discretion in denying the petitioner parole in the United States because there was no facially plausible evidence that his detention was in the public interest or

26 that his release posed a risk to national security; (2) humanitarian release was warranted on health grounds because the petitioner’s health was deteriorating in custody; and (3) the petitioner also

27 was entitled to release pending appeal under Fed. R. App. P. 23(b) because he had shown both

a probability of success on the merits and that the balance of hardships tipped in his favor. 443 28 F.3d at 1082-84.

12

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1

Under Nadarajah, petitioner’s continued prolonged detention is not authorized by the statute

2 under which he is detained. Like the petitioner in Nadarajah, petitioner has been detained for

3 nearly two years, almost four times longer than the six-month period described by the Ninth Circuit

4 as presumptively reasonable under the general immigration detention statutes. (See Return, Exh.

5 13 at 44-45 (petitioner taken into custody by ICE on March 29, 2005) & Supp. Mem., Exh. B at 5

6 (petitioner released from custody on bond on or about February 9, 2007); see also Tijani, 430 F.3d

7 at 1242 (holding that a detention of over two years and eight months was not within the authority

8 conferred by § 1226(c)); Welch v. Ashcroft, 293 F.3d 213, 227 (4th Cir. 2002), abrogated on other

9 grounds by Demore, 538 U.S. at 516, 123 S.Ct. at 1713 (holding that 14 months in detention is

10 five months longer than the 90 days allowed under § 1231(a)(2) and, therefore, “outside any range

11 that comports with due process”).

12

As explained above, the Ninth Circuit’s reading of Demore indicates that § 1226(c), like

13 § 1225(b), should be construed to prohibit indefinite detention and to contain the same

14 reasonableness limitations on detention as § 1225(b). See Nadarajah, 443 F.3d at 1078 (“[T]he

15 general immigration detention statutes do not authorize the Attorney General to incarcerate

16 detainees for an indefinite period.”). The Ninth Circuit interpreted Demore to stand for the

17 proposition that a “brief” detention of no more than six months is presumptively reasonable for

18 aliens detained under § 1226(c). See id. at 1080-81 & n. 4. Although § 1226(c) makes the pre-

19 removal period of detention of “criminal aliens” mandatory, § 1226(c) is not one of the specialized

20 provisions authorizing detention for longer than six months of terrorists and other national security

21 threats which the Ninth Circuit distinguished from the “general immigration detention statutes”

22 subject to the reasonableness limitations described in Nadarajah.

23

The government contends that the length of petitioner’s detention should not weigh in favor

24 of his release because he “has acted to prevent his removal from the United States by filing two

25 petitions for review in 2005 and seeking (and obtaining) a stay of removal.” (Return at 8). The

26 government argues that these acts suspend or toll the removal period under 8 U.S.C.

27 § 1231(a)(1)(C) and, therefore, petitioner’s continued detention is authorized. (See id. at 7-8).

28

13

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1

The government’s contention is unpersuasive. First, it would be anomalous and

2 inconsistent to conclude that seeking judicial review and obtaining a stay of removal are “acts to

3 prevent” removal that can lead to suspension of the removal period under § 1231(a)(1)(C) when

4 the preceding paragraph of the same statute expressly provides that “[i]f the removal order is

5 judicially reviewed” and “if a court orders a stay of removal,” the removal period does not even

6 begin until that process in complete, on the date the court issues its final order. 8 U.S.C.

7 § 1231(a)(1)(B)(ii).

8

Second, § 1231 governs detention during and after the “removal period” of aliens who have

9 been ordered removed. As explained above, petitioner’s removal period has not begun and,

10 therefore, his detention is governed by § 1226. See supra at § II.A. Because the removal period

11 has not yet begun, petitioner’s direct appeals and the issuance of a stay of removal cannot have

12 suspended or tolled the removal period under § 1231(a)(1)(C).

13

Third, even assuming § 1231 applies to petitioner’s case, it expressly authorizes extending

14 the removal period and an alien’s detention beyond the 90 days only “if the alien fails or refuses

15 to make timely application in good faith for travel or other documents necessary to the alien’s

16 departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8

17 U.S.C. § 1231(a)(1)(C). Nothing in that statutory language suggests that an alien’s exercise of

18 his right to seek judicial review of an order of removal qualifies as “conspir[ing] or act[ing] to

19 prevent” his removal within the meaning of the statute, which specifically applies to aliens who fail

20 or refuse to act in “good faith” in effecting their removal. Moreover, “the word ‘conspires’ connotes

21 secret, improper or unlawful action,” and thus the remaining text of this section “imbue[s the

22 phrase] ‘acts to prevent’ with a tincture of bad faith, dishonestly, or improper behavior,” rather than

23 contemplating additional detention for “an alien from seeking legal avenues of relief in a court of

24 competent jurisdiction.” Arevalo v. Ashcroft, 260 F.Supp.2d 347, 349 (D. Mass. 2003), vacating

25 as moot on other grounds, 386 F.3d 19 (1st Cir. 2004) (holding that an alien who “simply exercises

26 her statutory rights” by seeking a stay of deportation pending appeal did not “act to prevent” her

27 removal under § 1231(a)(1)(C), and collecting cases). Here, although petitioner refused ICE’s

28 attempt to deport him on May 3, 2005, (see Return, Exh. 14 at 45-49), the IJ’s decision found that

14

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1 petitioner did not act in bad faith in refusing to depart because he was not notified of the departure

2 in advance and had no money or clothing. (See Reply, Exh. 10 at 9-10); cf. Pelich v. INS, 329

3 F.3d 1057, 1060 (9th Cir. 2003) (concluding that Zadvydas “does not save an alien who fails to

4 provide requested documentation to effectuate his removal[ because t]he reason is self-evident:

5 the detainee cannot convincingly argue that there is no significant likelihood of removal in the

6 reasonably foreseeable future if the detainee controls the clock[]”); Lema v. INS, 341 F.3d 853,

7 856 (9th Cir. 2003) (holding that “when an alien refuses to cooperate fully and honestly with

8 officials to secure travel documents from a foreign government, the alien cannot meet his or her

9 burden to show there is no significant likelihood of removal in the reasonably foreseeable future[]”).

10

When an alien petitions for judicial review of a removal order, it is virtually certain that his

11 or her appeal will delay removal for some period of time even if it does not succeed in preventing

12 it. However, to suggest that petitioner therefore “holds the keys” to his release from detention

13 ignores the reality that the petitioner’s conduct is merely one factor among many that affects the

14 length of the judicial review process. See Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003)

15 (Explaining that, in a case involving detention of a criminal alien under § 1226(c), “appeals and

16 petitions for relief are to be expected as a natural part of the process. An alien who would not

17 normally be subject to indefinite detention cannot be so detained merely because he seeks to

18 explore avenues of relief that the law makes available to him. Further, although an alien may be

19 responsible for seeking relief, he is not responsible for the amount of time that such determinations

20 may take.”).

21

Here, petitioner was proceeding pro se when he filed his petitions for review, which

22 provides a reasonable explanation as to why his first three petitions were dismissed for procedural

23 defects and does not demonstrate that petitioner acted with the intent to delay his deportation.

24 Further, once petitioner filed a procedurally adequate petition for review, the Ninth Circuit granted

25 his motion for a stay of removal, (see Petition, Exh 2), which supports a finding that the petitions 26 were not frivolous.9 The court recognizes that it “must be sensitive to the possibility” that a

27

28 9 A grant of a motion for a stay of removal is not automatic; it is granted only if petitioner

15

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 16 of 20 Page ID #:98

1 removable alien may engage in “dilatory tactics” in order to “compel a determination” that his

2 detention was unreasonably long. See Ly, 351 F.3d at 272 (although alien’s application for relief

3 from removal and his need for a rescheduled hearing were partly responsible for prolonging his

4 detention, those filings did not justify the overall length of detention). Still, there is no indication

5 that petitioner has acted in bad faith to delay his deportation by filing petitions for review.

6

In sum, petitioner has shown that his detention for nearly two years was excessive and

7 unauthorized by the controlling statute, 8 U.S.C. § 1226(c). See Tijani, 430 F.3d at 1242 (holding

8 that a detention of over two years and eight months was not within the authority conferred by §

9 1226(c)); Welch, 293 F.3d at 227 (holding that 14 months in detention is five months longer than

10 the 90 days allowed under § 1231(a)(2) and, therefore, “outside any range that comports with due

11 process”).

12

D. Likelihood of Petitioner’s Removal.

13

Petitioner contends that his removal is not reasonably foreseeable for two reasons. First,

14 he argues that the Ninth Circuit may well reverse his removal order and remand his case for

15 further administrative proceedings because his petitions for review advance meritorious arguments

16 that petitioner is prima facie eligible for adjustment of status based on his marriage to an United

17 States citizen and that the only reason he was unable to adjust appears to be because his attorney 18 failed to file the appropriate papers.10 (See Petition at 8-9). Second, petitioner asserts that

19 regardless of the likelihood of prevailing on his petitions for review, his removal is not significantly

20 likely to occur in the reasonably foreseeable future because there is no time frame for a decision

21 by the Ninth Circuit. (See id. at 9).

22

Under the circumstances, the court is convinced that petitioner’s removal is not certain.

23 First, the government does not challenge, (see, generally, Return at 1-10), petitioner’s contention

24

25

shows either the probability of success on the merits and the possibility of irreparable injury, or that serious legal questions are raised and the balance of hardships tips sharply in the petitioner’s

26 favor. See Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc); Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998) (per curiam).

27 10 The government has made no attempt to respond to petitioner’s contentions regarding the
28 merits of his pending petitions for review. (See, generally, Return at 1-10).

16

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 17 of 20 Page ID #:99

1 that his case could be remanded for further administrative proceedings relating to an adjustment

2 of status based on petitioner’s marriage to a United States citizen. Of course, a remand would

3 significantly extend the time that petitioner is in detention. In addition, a successful application for

4 adjustment of status will effectively terminate the government’s efforts to remove petitioner. See

5 Welch, 293 F.3d at 217-18.

6

Second, with respect to petitioner’s contention that his removal is not likely to occur in the

7 near future because there is no time frame for a decision by the Ninth Circuit regarding petitioner’s

8 petitions for review, the Ninth Circuit docket sheet (which can be found on PACER) for Diouf, No.

9 06-71922, indicates that the petition for review was filed over a year ago and, on October 16,

10 2006, was consolidated with petitioner’s second petition for review filed on August 15, 2006.

11 Petitioner’s opening brief was filed on May 31, 2007, respondent’s brief was filed on October 17,

12 2007, and petitioner’s reply brief was filed on November 9, 2007. During oral argument, the

13 government argued that, although there is no timetable for a decision regarding petitioner’s

14 petitions for review, petitioner is not being held indefinitely because the Ninth Circuit will eventually

15 decide petitioner’s appeals. (See Hearing Trans. at 9).

16

The government’s contention is unpersuasive. As an initial matter, the three new cases –

17 two district court cases and one Ninth Circuit unpublished disposition – the government raised at

18 oral argument are neither binding nor persuasive. See Singh v. Clark, 2007 WL 3046315 (W.D.

19 Wash. 2007); Mboussi-Ona v. Crawford, 2007 WL 3026946 (D. Ariz. 2007); Beqir v. Clark, 220

20 F.App’x 469, 2007 WL 201108 (9th Cir. 2007) (unpublished per curiam memorandum) & 9th Cir.

21 R. 36-3(a) (unpublished Ninth Circuit opinions are not precedent). With respect to Mboussi-Ona,

22 the court did not cite or otherwise discuss Nadarajah, see, generally, 2007 WL 3026946, at *1-6,

23 which, next to Tijani, is perhaps the most significant authority governing the disposition of the

24 instant Petition. Further, the court respectfully disagrees with Mboussi-Ona’s conclusion that the

25 Ninth Circuit in Tijani did not intend to include the time the petitioner was in detention awaiting the

26 disposition of his judicial appeal in calculating his total length of detention. 2007 WL 3026946, at

27 *4. The Tijani Court clearly considered the time petitioner was detained during both the

28 administrative and judicial review processes in assessing the reasonableness of his detention.

17

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 18 of 20 Page ID #:100

1 430 F.3d at 1242. Moreover, the court does not believe that including the judicial review time as

2 part of the calculation in determining whether an alien’s detention is reasonable would “mean that

3 by merely seeking judicial review, every alien found removable would be entitled to an

4 individualized bond hearing and possible release.” Mboussi-Ona, 2007 WL 3026946, at *5. Under 5 Tijani, only aliens who obtain a stay of removal would be eligible to be considered for release,11

6 which is not automatic, as the government is still entitled to prove that detention remains justified.

7 See Tijani, 430 F.3d at 1246 (Tashima, J., concurring).

8

Beqir, which is a very short memorandum decision, and Singh, were filed by pro se litigants.

9 See Beqir, 220 F.App’x at 470, 2007 WL 201108, at *1; Singh, 2007 WL 3046315, at *1. Neither

10 of these cases cited or discussed the Ninth Circuit’s published decisions in Nadarajah and Tijani.

11 See, generally, Beqir, 220 F.App’x at 469-71, 2007 WL 201108, at *1-2; Singh, 2007 WL 3046315,

12 at *1-5. The court believes that Bequir and Singh are inconsistent with Nadarajah and Tijani to

13 the extent they can be read to hold that detention pending administrative and judicial review is

14 permissible because it has a definite termination point. See Nadarajah, 443 F.3d at 1081 (“Nor

15 are we persuaded by the government’s argument that because the Attorney General will someday

16 review Nadarajah’s case, his detention will at some point end, and so he is not being held

17 indefinitely.”); Tijani, 430 F.3d at 1242 (two years and eight months detention pending

18 administrative and judicial review violates statutory right to expedited removal process); see also

19 Welch, 293 F.3d at 227 (“Welch’s detention pending a final removal order is similarly indefinite.

20 Like the postorder detention in Zadvydas, Welch’s detention features a clearly identifiable event

21 marking completion of the detention period (i.e., issuance of a final order), but no clearly

22 identifiable deadline by which that event must take place.”) (italics in original).

23

Indeed, in Nadarajah, the Ninth Circuit rejected the government’s argument that the

24 petitioner was not being held indefinitely because, even though the Attorney General “will

25 someday review [the petitioner’s] case,” and “his detention will at some point end, . . . [n]o one can

26
27 11 As indicated earlier, a stay of removal is not automatic; it requires a showing of either probability of success on the merits and the possibility of irreparable harm, or the existence of
28 serious legal questions that tip the balance in petitioner’s favor. See supra at n. 9.

18

Case 2:06-cv-07452-TJH-FMO Document 46 Filed 12/19/07 Page 19 of 20 Page ID #:101

1 satisfactorily assure us as to when that day will arrive.” 443 F.3d at 1081. In Tijani, the court

2 ordered the petitioner to be released or provided a bail hearing where he had been detained under

3 § 1226(c) for more than two years and eight months, his petition for review was pending, the

4 government had filed its answering brief only a month earlier, and “the foreseeable process in [the

5 Ninth Circuit] . . . is a year or more.” 430 F.3d at 1242. The circumstances of this case are

6 analogous because even though petitioner’s petitions for review at some point will be adjudicated,

7 there is no timetable or date for disposition of his petitions or for effectuating his removal if he

8 loses. Indeed, petitioner’s reply brief was only filed a month ago in the Ninth Circuit case.

9 Petitioner’s removal therefore is not reasonably foreseeable, and his continued detention is not

10 reasonably necessary to effect his removal. See Nadarajah, 443 F.3d at 1081 (relying partly on

11 the absence of a timetable for decision to conclude that there was no significant likelihood of

12 removal in the reasonably foreseeable future).

13

CONCLUSION

14

As discussed above, petitioner obtained a preliminary injunction granting him a bond

15 hearing and was released on bond following a hearing before an IJ.12 (See Supp. Mem. at 2 &

16 Reply, Exh. 10 at 7-11). Thus, the government’s contention that petitioner should not be released

17 because he is a flight risk is unpersuasive in light of the IJ’s conclusion that the government failed

18 to meet its burden of proof to establish by clear and convincing evidence that petitioner presents 19 a sufficient flight risk.13 Specifically, the IJ found that petitioner’s risk of flight did not justify his

20

21

12 The government asserted at oral argument that the IJ applied the incorrect standard at petitioner’s bond hearing in determining whether he should be released from detention. (See

22 Hearing Trans. at 31-37). The standard applied by the IJ at the bond hearing was derived from Judge Hatter’s order granting petitioner’s preliminary injunction, (see Court’s Order of January 4,
23 2007, at 3-4), which is currently on appeal. This court is not in a position to review Judge Hatter’s

view of the appropriate standard to be applied by the IJ in determining whether petitioner should 24 be released from detention.

25 13 The government does not argue that petitioner should not be released because he poses 26 a danger to the community. (See, generally, Return at 1-10). Indeed, the government conceded
at the bond hearing before the IJ that petitioner does not pose a danger to the community. (See 27 Reply, Exh. 10 at 10) (“The government even admitted in court that [petitioner] is not a serious
danger.”). Moreover, the IJ found that petitioner’s only criminal conviction, possession of a small 28 amount of marijuana, did not render him a danger to the community. (See id.).

19

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1 prolonged detention because, although petitioner failed to appear for voluntary departure in 2005,

2 petitioner provided credible testimony at the bond hearing that “he was given misinformation about

3 his immigration proceedings and the consequences of failing to depart by his attorney. [Petitioner]

4 appears to have had multiple problems with attorneys in the past and has filed a complaint with

5 the State Bar. The fact that he has made multiple attempts to correct those mistakes by filing

6 addition[al] motions or petitions in court does not make him a flight risk for purposes of bond.”

7 (Reply, Exh. 10 at 10). Moreover, the IJ found credible petitioner’s explanation that he refused

8 to depart when ICE agents brought him to the airport in 2003 because he was not notified in

9 advance of his departure and had no money or clothing with him. (Id.).

10

In conclusion, petitioner’s continued detention is not authorized by statute and, therefore,

11 he is entitled to release.

12

This decision is not intended for publication.

13

RECOMMENDATION

14

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order:

15

(1) Accepting and adopting this Report and Recommendation; and

16

(2) Directing that Judgment be entered granting the Petition and ordering petitioner

17 released on the conditions already imposed by the IJ’s Order dated February 9, 2007.

18 Dated this 19th day of December 2007.

19

/s/

Fernando M. Olguin

20

United States Magistrate Judge

21

22

23

NOTICE

24

Reports and Recommendations are not appealable to the Court of Appeals, but may be

25 subject to the right of any party to file objections as provided in the Local Rules Governing the

26 Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket

27 number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed

28 until entry of the judgment of the District Court.

20

 
 Case 2:06-cv-07452-TJH-FMO Document 74 Filed 09/09/09 Page 1 of 5 Page ID #:515

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12

13

14

AMADOU LAMINE DIOUF,

15

Petitioner,

CV 06-7452 TJH (FMOx)

16

v.

17

ERIC H. HOLDER, JR., UNITED

STATES ATTORNEY GENERAL, et al.,
18

Respondents.
19

Order JS-6

20

21

22

Diouf petitioned for habeas corpus relief and requested a preliminary

23 injunction, ordering an Immigration Judge to hold a bond hearing, on the grounds

24 that his lengthy detention violated 8 U.S.C. § 1226(a), and the Due Process Clause.

25 This Court granted the petition for habeas corpus relief and the preliminary

26 injunction. The Immigration Judge released Diouf on bond. The Government

Order - Page 1 of 5

Case 2:06-cv-07452-TJH-FMO Document 74 Filed 09/09/09 Page 2 of 5 Page ID #:516

1 appealed both decisions.

2

The Circuit reversed the grant of habeas corpus relief and vacated and

3 remanded the preliminary injunction for further proceedings consistent with its

4 opinion. The Circuit asked this Court to determine whether § 1231(a)(6) requires

5 a bond hearing, whether the Due Process Clause requires a bond hearing and

6 whether the post-custody reviews Diouf received satisfied the Due Process Clause.

7

In Dioufv. Mukasey, 542 F.3d 1222 (9th Cir. 2008), the circuit ruled that

8 Diouf was not entitled to habeas corpus relief because he was detained under §

9 1231(a)(6) and not § 1226(a). Diouf, 542 F.3d at 1233. The Circuit concluded

1o that, "an alien is entitled to habeas relief after a presumptively reasonable six-month

11

period of detention under§ 1231(a)(6), only upon demonstration that the detention

1 2 is indefinite - i.e., that there is good reason to believe that there is no significant

13 likelihood of removal in the reasonably foreseeable future." Diouf, 542 F .3d at

14 1233. Because Diouf was properly detained under§ 1231(a)(6) at the time of his

15 petition for habeas corpus relief and the preliminary injunction, it follows that he

16 is not entitled to a bond hearing as a requirement of§ 1231(a)(6).

17

Both §§ 1226(a) and 1231(a)(6) are ambiguous as to the authority of the

18 Attorney General to prolong the detention of an alien. Section 1226(a) provides the

19 Attorney General with discretionary authority to release aliens on bond "prior" to

20 the removal period. Similarly, § 1231(a)(6) provides the Attorney General with

21

discretionary authority to detain certain classes of aliens "beyond" the removal

22 period. Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Section

23 1226(a), read in light of the Constitutional demand, limits an aliens's detention to

24 a period reasonably necessary to bring about the aliens's removal from the United

25 States. Prieto-Romero, 534 F.3d at 1062-1063. Because § 1226(a) and §

26

1231(a)(6) create the same Constitutional ambiguity, it follows that§ 1231(a)(6)

Order - Page 2 of 5

Case 2:06-cv-07452-TJH-FMO Document 74 Filed 09/09/09 Page 3 of 5 Page ID #:517

1 should be read in the same light as § 1226(a). Prieto-Romero, 534 F .3d at 1063.

2 Thus, aliens who are detained under § 1231(a)(6) cannot be indefinably detained

3 without sufficient procedural due process.

4

Though § 1226(a) and § 1231(a)(6) create the same Constitutional concern,

5 it does not follow that Diouf, like an alien under § 1226(a), is entitled to a bond

6 hearing as a requirement of the due process. The statutes are similar in language,

7 however, it is the purpose of the statute that controls and not the fact that both say

8 an alien "may" be detained. The Court has held that the nature of due process

9 protection may vary depending upon the status and circumstances of the alien.

10 Zadvydus v. Davis, 533 U.S. 678,694, 121 S. Ct. 2491, 2501, 150 L. Ed. 2d 653,

11

669 (2001). Thus, it is the status and circumstance of the alien that determine what

12 type of process is due and not simply that§ 1226(a) and§ 1231(a)(6) have similar

13

wording.

14

In Casas-Castrillon v. Department ofHomeland Sec., 535 F.3d 942 (9th Cir.

15 2008), the court concluded that aliens are entitled to a bond hearing as a matter of

16 due process. Casas-Castrillon, 535 F.3d at 952. However, the status and

17 circumstance of the alien in Casa-Castrillon is factually different from Diouf. In

18 Casas-Castrillon the alien was a lawful permanent resident who was being detained

19 under § 1226(a) because his original removal orders were still being judicially

20 reviewed. Casas-Castrillon, 535 F .3d at 942. Furthermore, Casa-Castrillon did not

21

receive adequate procedural due process protection while he was detained. Casas-

22 Castrillon, 535 F .3d at 952. In contrast, Diouf was given a final removal order and

23 is simply asking the circuit to review his denied motion to reopen the case.

24 Moreover, Diouf was lawfully permitted but subsequently ordered removed by the

25 Board of Immigration Appeals has exhausted all of his opportunities to challenge his

26 final removal order directly and has previously been granted release on bond and

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Case 2:06-cv-07452-TJH-FMO Document 74 Filed 09/09/09 Page 4 of 5 Page ID #:518

1 had the bond cancelled for failure to timely depart. Also, Diouf received adequate

2 procedural due process when he received his two post-order custody reviews. Diouf

3 is not entitled to a bond hearing as a matter of due process because he is not in the

4 same status and circumstance as Casas-Castrillon.

5

The Constitutional concern due to the ambiguity of§ 1231(a)(6) does require

6 that an alien receive adequate procedural protection to ensure that the government's

7 asserted justification for physical confinement outweighs the individual's

8 constitutionally protected interest in avoiding physical restraint. Prieto-Romero, 534

9 P.3d at 1065. Because Prieto-Romero was detained under§ 1226(a), he received

1o the procedure that 8 C.P.R. § 236.1(d) required. Prieto-Romero, 534 P .3d at 1065-

11

66. The court concluded that Prieto-Romero was not entitled to another bond

12 hearing because he had already received adequate procedural due process. Prieto-

13 Romero, 534 P.3d at 1068.

14

Similarly, Diouf has already received adequate procedural due process.

15 Because Diouf was detained under § 1231(a)(6), the procedure in 8 C.P.R. § 241.4

16 applied. Diouf received two post-order custody review considerations on July 29,

17 2005, and again on July 25, 2006, as required by 8 C.P.R. § 241.4. The post-order

18 custody review worksheet required the reviewing officer to consider numerous

19 factors laid out at 8 C.P.R. § 241.4(e), (f), and (h)(2). The basic purpose of the

20 immigration detention is assuring the alien's presence at removal. Prieto-Romero,

21

534 P.3d at 1063. The government's decision to continue custody is not in violation

22 of due process when balanced with other considerations, such as Dioufs criminal

23 history, lack of cooperation in past removal proceedings and the likelihood of his

24 future removal. To the extent Diouf retains any constitutional rights, the post-order

25 custody review procedures provided ample procedural due process in these

26 circumstances. An alien is not entitled to a bond hearing when he has received

Order - Page 4 of 5

Case 2:06-cv-07452-TJH-FMO Document 74 Filed 09/09/09 Page 5 of 5 Page ID #:519

1 adequate due process. Prieto-Romero, 534 F.3d at 1068. Thus, because Diouf

2 received adequate due process he is not entitled to a bond hearing.

3

It is Ordered that the petition for a preliminary injunction be, and hereby is,

4

Denied.

5

6 Date: September 9, 2009

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Senior United States District Judge
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Order - Page 5 of 5

 
 Case: 08-55504, 09/18/2008, ID: 6649497, DktEntry: 15-1, Page 1 of 22

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMADOU LAMINE DIOUF,



Petitioner-Appellee,

v.



MICHAEL B. MUKASEY, Attorney

General,

 Respondent-Appellant.

No. 07-55337
D.C. No. CV-06-07452-TJH

AMADOU LAMINE DIOUF,



Petitioner-Appellee,

v.

MICHAEL B. MUKASEY, Attorney General; MICHAEL CHERTOFF, Secretary, Department of Homeland Security; JULIE L. MYERS, Assistant Secretary, United
 States Immigration and Customs
Enforcement; NORMA BONALESGARIBAY Field Officer Director, U.S. Immigration and Customs Enforcement; GEORGE MOLINAR, Chief of Detention and Removal Operations, San Pedro Detention Facility; STUART CORTEZ Officerin-Charge, San Pedro Detention Facility,
 Respondents-Appellants.

No. 08-55504
D.C. No. 2:06-cv-07452-
TJH-FMO
OPINION

Appeal from the United States District Court for the Central District of California
Terry J. Hatter, District Judge, Presiding

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Argued and Submitted January 7, 2008—Pasadena, California

Filed September 18, 2008

Before: Jerome Farris, Raymond C. Fisher, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

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COUNSEL
Gjon Juncaj, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; Thomas H. Dupree, Jr., U.S. Department of Justice, Washington, D.C., for the respondents-appellants.
Cecillia D. Wang, ACLU Foundation, Immigrants’ Rights Project, San Francisco, California; Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California, for the petitioner-appellee.

OPINION
MILAN D. SMITH, JR., Circuit Judge:
This consolidated appeal addresses whether the length of an alien’s detention under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., entitled him to the writ of habeas corpus under 28 U.S.C. § 2241 and Zadvydas v. Davis, 533 U.S. 678 (2001). The appeal also addresses whether the district court abused its discretion by preliminarily enjoining an Immigration Judge (IJ) to conduct a bond hearing for the alien, who at the time was in his twenty-third month of detention and awaiting judicial review of an order denying his request to reopen his removal proceedings. We hold that the district court erred by granting the writ of habeas corpus because the alien’s detention was not “indefinite,” and that the

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preliminary injunction constituted an abuse of discretion because it was issued on the erroneous premise that the detention was governed by § 236 of the INA, 8 U.S.C. § 1226, rather than § 241, 8 U.S.C. § 1231. We therefore reverse the grant of habeas relief, and vacate and remand with respect to the preliminary injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner-Appellee Amadou Lamine Diouf was admitted to the United States in 1996 on an F-1 non-immigrant student visa. The visa expired in June 2002. In December 2002, Diouf was found in possession of less than 30 grams of marijuana and charged with a misdemeanor under Revised Code of Washington § 69.50.401(e) (2002). Diouf pleaded guilty the following month.

The Government initiated removal proceedings against Diouf in January 2003, alleging that he was removable because he had (1) remained in the United States after the expiration of his student visa in violation of 8 U.S.C. § 1227(a)(1)(B), (2) failed to maintain non-immigrant status in violation of § 1227(a)(1)(C)(i), and (3) committed a controlled-substance offense in violation of § 1227(a)(2) (B)(i). The IJ determined that Diouf was subject to removal due to these charges. However, at Diouf’s request, the IJ ordered in lieu of removal that Diouf voluntarily depart from the United States by June 24, 2003. The IJ further ordered that Diouf would be removed to Senegal if he did not depart voluntarily by the specified date. Diouf waived appeal and posted bond on March 3, 2003.

Following his release, Diouf retained counsel to reopen the removal proceedings and adjust his status from nonimmigrant alien to lawful permanent resident on the basis of his planned marriage to Marie Campbell,1 a United States citi-

1The INA provides that an alien spouse of a United States citizen may acquire the status of lawful permanent resident. 8 U.S.C.

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zen to whom Diouf had become engaged in 2002. Diouf and Campbell married on June 17, 2003. The deadline for Diouf’s voluntary departure passed one week later. On June 27, Campbell filed an I-130 petition in light of their recent marriage. Although counsel also prepared a motion to reopen the removal proceedings and a request for an extension of the voluntary departure period, he did not file those documents at that time.

Upon learning that Diouf remained in the country after the June 24 departure deadline, Immigration and Customs Enforcement (ICE) sent a notice requiring him to present himself for removal on September 4, 2003. Diouf failed to report as instructed, so ICE cancelled his bond, apprehended him at his home on March 29, 2005, and detained him pending execution of the removal order. ICE made arrangements for Diouf to depart for Senegal on May 26, 2005, but, after Diouf refused to leave on that date, continued to detain him. ICE warned Diouf on July 20, 2005, that he would be fined or imprisoned for up to four years under 8 U.S.C. § 1253(a) if he continued to refuse to depart.

Diouf subsequently undertook a series of legal maneuvers to prevent his removal. On May 31, 2005, he filed a motion to reopen the case before the IJ in light of his pending I-130 petition. On June 28, the IJ denied the motion as untimely. Diouf did not appeal.

After obtaining new counsel, Diouf filed a second motion to reopen in September 2005, this time arguing that his first attorney had provided ineffective assistance by (1) failing to

§ 1151(b)(2)(A)(i). For the change in status to occur, the citizen spouse must file a Form I-130 Petition for Alien Relative pursuant to 8 U.S.C. § 1154(a)(1)(A)(i), see 8 C.F.R. § 204.1(a)(1), and the alien spouse must file a Form I-485 application for adjustment of status pursuant to 8 U.S.C. § 1255. See Freeman v. Gonzales, 444 F.3d 1031, 1040 (9th Cir. 2006) (describing this procedure).

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timely file a motion to reopen after the marriage, (2) failing to seek an extension of the voluntary departure date, and (3) failing to appeal the grant of voluntary departure. The IJ denied the motion on September 7, 2005, because it was not accompanied by a certificate of service.

Diouf refiled the second motion to reopen on December 8, 2005. The IJ denied the motion on the grounds that it was untimely and that Diouf was ineligible for a status adjustment. Diouf requested a stay of removal pending appeal, but the Board of Immigration Appeals (BIA) denied that request on May 26, 2006.

Two months later, the BIA affirmed the IJ, holding that the motions to reopen were untimely and that the ineffective assistance claims lacked merit. With regard to the first claim, the BIA found that Diouf’s original counsel could not have timely filed a motion to reopen in connection with the application for adjustment of status because the filing deadline occurred approximately three weeks before Diouf married Campbell, and the marriage was the only asserted justification for the adjustment. The BIA then found that the attorney’s failure to request an extension of the voluntary departure deadline was harmless because the IJ had already granted Diouf the maximum period allowed for voluntary departure. The BIA also found that the attorney’s decision not to appeal the grant of voluntary departure was reasonable because Diouf had expressly waived the appeal.

On May 5, 2006, Diouf filed a pro se appeal of the IJ’s original voluntary departure order. On June 8, 2006, the BIA dismissed the appeal as untimely.

While seeking relief before the IJ and BIA, Diouf also filed a series of petitions with this court. On June 1, 2005, he filed a pro se petition for review and a motion to stay his removal pursuant to General Order 6.4(c). See Dkt. No. 05-73252. We granted a temporary stay and on June 16, 2005, ordered Diouf

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to submit a copy of the BIA order that he sought to challenge. Diouf subsequently filed a petition to proceed in forma pauperis and obtain counsel, but failed to provide a copy of a reviewable BIA order. We therefore dismissed the petition for lack of jurisdiction on August 9, 2005, issuing the mandate on August 31, and lifting the temporary stay.

On August 29, 2005, Diouf filed a second pro se petition for review and another motion for a stay of removal. See Dkt. No. 05-75026. We again entered a temporary stay and on September 19, 2005, ordered Diouf to pay a filing fee and provide either a correct alien identification number or a copy of the BIA order he sought to challenge. Diouf did not comply with this order, so we issued another order on November 4, 2005, directing him either to comply with the requirements of the September 19 order or show cause why the petition should not be dismissed for lack of jurisdiction. Diouf filed a response on December 5, 2005. On January 31, 2006, we found that the petition was not a timely challenge to a final order of removal, and dismissed for lack of jurisdiction. We subsequently granted a request from Diouf for an extension of time to file a motion to reconsider, but Diouf ultimately did not file the motion. The mandate issued on May 1, 2006, and the stay lifted. Diouf filed a motion to reopen on May 4, but we construed the motion as one for reconsideration and denied it as untimely on May 22.

Diouf filed a third pro se petition for review and motion for stay of removal on February 7, 2006. See Dkt. No. 06-70731. We entered another temporary stay on March 10, 2006, and again directed Diouf to pay the filing fee and provide either a correct alien identification number or a copy of the BIA order he sought to challenge. Diouf did not respond. On April 5, we dismissed the petition for failure to prosecute, and the stay lifted.

Diouf filed a fourth pro se petition for review and request for a stay of removal eight days later. See Dkt. No. 06-71922.

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We again entered a temporary stay and ordered Diouf to provide his alien identification number and a copy of the BIA order he sought to challenge. Diouf complied with this order on May 15, 2006, clarifying that his petition challenged the BIA’s July 2006 denial of his motions to reopen. We granted the motion for a stay of removal on July 21, 2006, and appointed pro bono counsel to represent Diouf on January 17, 2007. The case remains pending before another panel of this court.

Diouf filed a fifth and final pro se petition on August 15, 2006, again seeking review of the BIA’s July 2006 denial of the motions to reopen. See Dkt. No. 06-73991. This petition was consolidated with Diouf’s fourth petition on October 16, 2006, and remains pending before the other panel. See id.

Diouf remained in detention while he pursued relief before the IJ, BIA, and this court. To determine whether the detention remained justified, ICE conducted a post-order custody review pursuant to 8 C.F.R. § 241.4 on July 25, 2006.2 ICE determined that Diouf should remain in custody pending removal because his “criminal history and lack of family support” suggest he might flee if released. The detention therefore continued.

On November 21, 2006, Diouf filed a petition for the writ of habeas corpus in the district court. He requested that the court enter a preliminary injunction for immediate release on the grounds that his lengthy detention violates § 236(a) of the INA, 8 U.S.C. § 1226(a), and the Due Process Clause of the Fifth Amendment. As an alternative to immediate release, Diouf requested a preliminary injunction ordering the IJ to hold a hearing at which the Government would have the burden of justifying the detention.

2The record does not support the Government’s contention that Diouf also received a post-order custody review on July 21, 2005.

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The district court entered the following preliminary injunction on January 4, 2007:

Petitioner must be within thirty days afforded an individual hearing before an immigration judge concerning whether his prolonged detention is justified. At the hearing, the immigration judge shall order Petitioner released on reasonable conditions unless the government shows by clear and convincing evidence that Petitioner presents a sufficient danger or risk of flight to justify his detention in light of how long he has been detained already and the likelihood of his case being finally resolved in favor of the government in the reasonably foreseeable future.

Pursuant to the injunction, the IJ conducted a hearing on February 9, 2007, to determine whether Diouf’s prolonged detention remained justified. The IJ held, after receiving evidence from both sides, that Diouf did not present a sufficient danger to the community or risk of flight to justify the detention, which by then had extended over twenty-two months. The IJ accordingly released Diouf on bond the same day. The Government appeals the district court’s preliminary injunction.

While the Government’s appeal of the preliminary injunction was pending before this panel, a magistrate judge issued a report and recommendation concerning Diouf’s petition for habeas corpus under 28 U.S.C. § 2241. The magistrate judge recommended that the district court grant the petition because the length of Diouf’s detention violates 8 U.S.C. § 1226(a). The district court adopted this recommendation on February 6, 2008, granted the petition, and ordered Diouf released on the conditions previously imposed by the IJ. The Government also appeals this decision. We consolidated this appeal with the Government’s earlier appeal of the preliminary injunction, and now address them both.

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JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the appeal of the preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1), and over the appeal of the grant of the writ of habeas corpus pursuant to 28 U.S.C. § 2253(a). The entry of the preliminary injunction is reviewed for an abuse of discretion, Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006), and the grant of habeas relief is reviewed de novo, Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000).

DISCUSSION

I.

The first step in evaluating the Government’s appeals is to determine whether Diouf was detained under § 236 or § 241 of the INA, 8 U.S.C. §§ 1226 and 1231, at the time the district court entered the preliminary injunction and granted habeas relief. As we recently explained in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), these statutes apply at different stages of an alien’s detention. Section 1226(a) provides the Attorney General with discretionary authority to release aliens on bond or conditional parole prior to the removal period. See id. at 1059-60. Section 1231(a)(2), by contrast, mandates detention “during” the removal period established in § 1231(a)(1). Id. at 1059. Lastly, § 1231(a)(6) provides the Attorney General with discretionary authority to detain certain classes of aliens “beyond” the removal period, or to release them subject to the terms of supervision in § 1231(a)(3). Id.; see also Zadvydas v. Davis, 533 U.S. 678, 683 (2001) (describing these differences); Casas-Castrillon v. Dep’t of Homeland Sec., ___ F.3d ___, 2008 WL 2902026, at *2 (9th Cir. July 25, 2008) (same).

The Government argues that the district court abused its discretion by entering the preliminary injunction and granting habeas relief on the erroneous premise that Diouf was at the

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time being detained prior to the removal period and, thus, under § 1226(a). Specifically, the Government contends that Diouf was being detained under § 1231(a)(2) because (1) Diouf’s order of removal became administratively final on June 25, 2003, when he failed to depart within the voluntary departure period, (2) the administrative finalization of the order of removal initiated the 90-day removal period of § 1231(a)(1)(A), and (3) Diouf’s filing of multiple unsuccessful petitions for review with this court extended the removal period pursuant to § 1231(a)(1)(C)3 to mandate the entire portion of the detention that followed the first 90 days. Diouf argues in response that he was being detained prior to the removal period, and thus under § 1226, because he had a petition for review pending before this court and a judicial stay of removal in place when the district court granted injunctive and habeas relief. He claims that § 1231 did not apply because § 1231(a)(1)(B)(ii) dictates that his removal period begins only once this court enters a final order on his pending petitions for review—an event that has not yet occurred. For the reasons set forth below, we hold that Diouf was being detained under § 1231(a)(6) when the district court granted the writ of habeas corpus, and when it entered the preliminary injunction.

A.

[1] We begin by noting that Diouf’s order of removal is administratively final. Because the IJ issued an alternate order of removal in connection with the grant of voluntary departure, and Diouf did not timely appeal to the BIA, Diouf’s order of removal became administratively final “upon over-

3This statute provides: “The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. § 1231(a)(1)(C).

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stay of the voluntary departure period.” 8 C.F.R. § 1241.1(f). Diouf’s voluntary departure period ended on June 24, 2003. Thus, the order of removal became administratively final on June 25, the first day of his overstay.

B.

[2] We further conclude that Diouf’s detention was authorized under § 1231, rather than § 1226. Section 1231(a)(1)(B) provides that the removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

Diouf’s removal period thus began on June 25, 2003—the date his removal order became administratively final—unless §§ 1231(a)(1)(B)(ii) or (iii) dictate a later date. See 8 U.S.C. § 1231(a)(1)(B)(i). We hold that neither of them does. Section 1231(a)(1)(B)(ii) is inapplicable because, although Diouf’s appeals to this court resulted in several stays of removal, those appeals did not entail judicial review of a removal order, as the plain text of the statute requires. Diouf never identified the order he sought to challenge in his first three appeals, and the fourth and fifth appeals challenged only the BIA’s July 2006 denial of his motions to reopen. Diouf does not contend that § 1231(a)(1)(B)(iii) applies. Accordingly, Diouf’s removal period began on June 25, 2003, pursuant to § 1231(a)(1)(B)(i).

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Our recent decisions in Prieto-Romero and CasasCastrillon support this conclusion. In Prieto-Romero, the petitioner had obtained a stay of removal from this court in an appeal that both remained pending and challenged the BIA’s affirmance of his removal order. 534 F.3d at 1057. We held in part that the petitioner was detained under § 1226(a), rather than § 1231, because § 1231(a)(1)(B)(ii) dictated that the removal period had not commenced. See id. at 1059-61. However, we made clear that the statutory basis for the petitioner’s detention would have been different if the pending petition for review had not challenged an administratively final order of removal, explaining that the “beginning of the removal period is not delayed by every judicially entered stay,” id. at 1060 n.6 (emphasis in original), and that the “entry of a stay of removal for any . . . reason [other than review of a removal order]—for example, a stay entered while a court reviews an alien’s § 2241 habeas petition or petition for review of the BIA’s denial of a motion to reopen—does not prevent the removal period from beginning,” id. (emphasis added). CasasCastrillon followed this construction of § 1231(a)(1)(B)(ii). See 2008 WL 2902026, at *3 (holding that the petitioner was detained under § 1226 rather than § 1231 at the time he filed his habeas petition because he had obtained a stay of removal and was awaiting judicial review of his petition for review of a final order of removal).

C.

Having determined that Diouf’s removal period began on June 25, 2003, we now locate within § 1231(a) the specific basis for Diouf’s detention on January 4, 2007, the date of the preliminary injunction, and on February 6, 2008, the date of the grant of habeas relief.

[3] Unsurprisingly, the rather lengthy procedural history of this case does not present a straightforward application of § 1231(a). The standard removal period should have ended on September 23, 2003—90 days after Diouf’s order of removal

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became final. See 8 U.S.C. § 1231(a)(1). ICE attempted to ensure Diouf’s removal within this period by instructing him to appear for deportation on September 4, 2003. Diouf, however, refused to cooperate, and ICE was unable to apprehend him until March 29, 2005. Diouf again refused to leave the United States on May 26, 2005. His refusal to depart continued until at least July 20, when ICE warned him that such conduct could result in fines and imprisonment. We conclude that by frustrating ICE’s efforts to effect removal in this manner, Diouf “conspire[d] or act[ed] to prevent [his] removal,” and thereby extended his removal period. Id. § 1231(a)(1)(C). Similar acts of obstruction have previously warranted extensions. See Lema v. INS, 341 F.3d 853, 856 (9th Cir. 2003) (alien refused to “cooperate fully and honestly with officials to secure travel documents”); Pelich v. INS, 329 F.3d 1057, 1059 (9th Cir. 2003) (alien refused to fill out a passport application).

[4] Given that § 1231(a)(1)(C) applies, we must determine the effect of Diouf’s obstructionism on the calculation of the removal period. In Lema and Pelich, we held that § 1231(a)(1)(C) extended the removal period for the duration of the obstruction. Lema, 341 F.3d at 856; Pelich, 329 F.3d at 1059. However, the conduct at issue in those cases was ongoing at the time the cases were decided. See Lema, 341 F.3d at 856; Pelich, 329 F.3d at 1059. As a result, neither Lema nor Pelich decided the effect of § 1231(a)(1)(C) in circumstances, such as Diouf’s, that involve a closed period of obstruction. Because the latest evidence of Diouf’s obstruction is the July 20, 2005 warning for failure to depart, we must decide how much of the removal period remained after that date.4

4We decline to find in the absence of positive evidence that Diouf continued to refuse to cooperate after July 20. Though an inference of subsequent obstruction may not be unreasonable, it is the burden of the government to document the conduct that extends the removal period under § 1231(a)(1)(C). Given what is at stake for the alien, we believe it inappropriate to allow the Government to satisfy its burden on inferences alone. Cf. United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention . . . is the carefully limited exception.”).

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[5] The text of § 1231(a) permits two different approaches. First, the 90-day clock could toll for the duration of the activity that triggered § 1231(a)(1)(C), and, following the latest date of documented obstruction, Diouf’s mandatory detention under § 1231(a)(2) could continue for the unexpended portion of the clock. Under this approach, Diouf’s removal period and mandatory detention would have terminated on August 8, 2005—19 days after the July 20 warning letter—because 71 days of the removal period had already lapsed between the finalization of his order of removal and his failure to appear for removal on September 4, 2003. Alternatively, the 90-day clock could restart following the latest date of documented obstruction. This would mean that Diouf’s removal period and mandatory detention under § 1231(a)(2) lasted until October 18, 2005—90 days after the July 20 warning letter.

We find the latter approach more appropriate. The purpose of the 90-day period is to afford the government a reasonable amount of time within which to make the travel, consular, and various other administrative arrangements that are necessary to secure removal. See Khotesouvan v. Morones, 386 F.3d 1298, 1300 (9th Cir. 2004). Using a single 90-day clock prior to and following a lengthy period of obstruction would, in many cases, frustrate that purpose by substantially truncating the amount of time within which the removal arrangements must be made. In Diouf’s case, the passage of over twentytwo months between the original removal date of September 4, 2003, and the latest date of documented obstruction required the government to restart the process of executing his removal. Without a new 90-day clock, the government would have had only 17 days to complete its work, after which the statutory basis for Diouf’s detention would have shifted from § 1231(a)(2) to § 1231(a)(6).5

5The question of whether to toll the original 90-day clock or start a new clock following a period of obstruction may carry more significant consequences in cases involving the removal of aliens to whom § 1231(a)(6) does not apply. It is possible that the government would have to release such aliens upon the expiration of the 90-day clock because § 1231(a) does not appear to otherwise provide for detention beyond the removal period.

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The Government argues that Diouf extended the removal period under § 1231(a)(1)(C) even beyond October 18, 2005, by repeatedly and unsuccessfully petitioning for relief before this court. We reject this argument. Diouf’s appeals to this court plainly did not constitute a “fail[ure] or refus[al] to make timely application in good faith for travel or other documents necessary to . . . departure.” 8 U.S.C. § 1231(a)(1)(C). Nor were they a “conspir[acy] or act[ ] to prevent . . . removal.” Id. As we explained in Prieto-Romero, § 1231(a)(1)(C) pertains only to intentionally obstructionist, bad faith tactics that are designed to frustrate the government’s attempts to effectuate a removal order, not to an alien’s good faith attempt to make use of legally available judicial review and remedies. 534 F.3d at 1060-61. Diouf’s appeals fell within this latter category. His first three petitions were each dismissed for non-compliance with routine appellate procedures, but we attribute those results to Diouf’s status at the time as a pro se litigant who was unfamiliar with the appellate process, not to bad faith. Moreover, the final two petitions resulted in a stay of removal. The entry of the stay signifies that, at the very least, the petitions have presented a “serious legal question[ ]” or have some “probability of success on the merits.” See Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998) (“We evaluate stay requests under the same standards employed by district courts in evaluating motions for preliminary injunctive relief.”).

[6] Because Diouf’s removal period ended on October 18, 2005, the statutory basis for his subsequent detention was § 1231(a)(6). The statute provides:

An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond

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the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).

Section 1231(a)(6) governed at the time of the preliminary injunction and the grant of habeas relief because Diouf’s detention on those dates occurred “beyond” the removal period. Diouf, moreover, falls within the class of aliens to whom the statute applies because he was ordered removed and is “inadmissible under section 1182” of Title 8. Id. § 1231(a)(6).6

II.

We next address whether Diouf was entitled to the writ of habeas corpus. The Government contends that the district court erred in granting the writ because the length of Diouf’s detention fell within the limits of § 1231(a)(6) and was consistent with the implicit limitation that Zadvydas v. Davis, 533 U.S. 678 (2001), imposes on the Attorney General’s detention authority. Diouf argues that his detention had become indefinite due to the absence of any certainty as to precisely when it would conclude, and that it was therefore not authorized under any immigration detention statute. See Zadvydas, 533 U.S. 678.

[7] We agree with the Government. As we have explained, see supra § I.C, Diouf’s detention was authorized by § 1231(a)(6) because he was ordered removed and was inadmissible under § 1182. An alien is entitled to habeas relief after a presumptively reasonable six-month period of deten-

6Section 1182 provides that an alien convicted of “a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), is inadmissible.” 8 U.S.C. § 1182(a)(2)(A) (i)(II). Diouf’s conviction for possession of marijuana under Washington law falls within this provision because marijuana is a “controlled substance” within the meaning of 21 U.S.C. § 802(6). See 21 U.S.C. § 812 Schedule I(c)(10).

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tion under § 1231(a)(6) only upon demonstration that the detention is “indefinite”—i.e., that there is “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701; see also Clark v. Suarez-Martinez, 543 U.S. 371, 377-78 (2005) (extending Zadvydas to aliens who are detained under § 1231(a)(6) and inadmissible under § 1182). Diouf’s detention undoubtedly extended beyond the presumptively reasonable period of six months. However, he fails to demonstrate that there was “no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. In Prieto-Romero, we construed this language to require the alien to show that he would be unremovable even if the government defeated his petition for review. 534 F.3d at 1063. The record provides no reason to believe such would be the case with Diouf. There is no evidence, for example, that Senegal would refuse to accept him, or that his removal is barred by our own laws. See id. (citing Zadvydas, 533 U.S. at 697). Indeed, ICE successfully completed the arrangements for Diouf’s removal prior to the originally scheduled removal date of September 4, 2003, and again on May 26, 2005; Diouf was not removed at those times solely because of his own refusal to cooperate. The government, therefore, could continue to have an interest in detaining Diouf to effect his removal, and the detention remained authorized by § 1231(a)(6). Zadvydas, 533 U.S. at 699; Prieto-Romero, 534 F.3d at 1065. That the detention did not have a certain end date does not change the analysis. Id. at 1063; see also CasasCastrillon, 2008 WL 2902026, at *5 (concluding that an alien’s detention was not unauthorized by statute on the basis of the length of his nearly seven-year detention because nothing would prevent his removal if he were ultimately unsuccessful in his then-pending petition for review).

III.

The remaining question is whether the district court abused its discretion by preliminarily enjoining the IJ to hold a bond

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hearing at which the Government was required to release Diouf unless it could prove by clear and convincing evidence that Diouf was a flight risk or a danger to the community. As we noted in Casas-Castrillon, “[t]here is a difference between detention being authorized and being necessary as to any particular person.” 2008 WL 2902026, at *5. The Government contends that the injunction was an abuse of discretion because Diouf was subject to mandatory detention under § 1231(a)(2) and was, therefore, ineligible for release on bond. The Government also argues that even if bond were potentially available, the injunction incorrectly required the IJ to place on ICE the burden of proving Diouf’s ineligibility for release, rather than place on Diouf the burden of proving his eligibility. Diouf argues that he was entitled to the hearing as a matter of due process, and that bond was properly granted.

[8] We hold that the injunction constituted an abuse of discretion insofar as it relied on the erroneous premise that Diouf was being detained under § 1226. As we have explained, the detention at the time of the injunction occurred under § 1231(a)(6), not § 1226. See Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008) (explaining that a district court abuses its discretion if it enters preliminary injunctive relief because of a misapprehension of the law governing the underlying issues in the litigation).

Whether the injunction was also an abuse of discretion specifically because it ordered a bond hearing is another matter. Contrary to the Government’s argument, Diouf’s detention under § 1231(a)(6) did not render him categorically ineligible for release on bond. Section 1231(a)(6) provides the Attorney General with the authority either to detain an alien beyond the removal period or to release him subject to the terms of supervision specified under § 1231(a)(3). We have specifically construed § 1231(a)(6) to permit release on bond. See Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002). The regulations that implement the statute also expressly permit bond as a condition of release. See 8 C.F.R. § 214.5(b). Therefore, we

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reject the Government’s suggestion that Diouf was statutorily ineligible for release on bond.

It does not necessarily follow, however, that the district court was correct in ordering the Attorney General to conduct a bond hearing, or that the Government was required to release Diouf on bond unless the Government could prove by clear and convincing evidence that Diouf was a danger to the community or a flight risk. Section 1231(a)(6) creates no express limit on the duration of post-removal period detention; nor does it specify that aliens are entitled to release unless they receive a bond hearing such as the one ordered by the district court. The statute states simply that the Attorney General “may” detain certain classes of aliens beyond the removal period.

[9] We decline to decide in the first instance whether aliens such as Diouf, who are detained under § 1231(a)(6), are entitled to receive bond hearings and to obtain release on bond unless the Government proves that they are a danger or a flight risk. The district court granted such relief under the erroneous conclusion that Diouf was detained under § 1226(a), and therefore did not reach the question of what process must be provided to aliens detained under § 1231(a)(6). We note, however, that we considered a somewhat similar question in Casas-Castrillon. There, the issue was whether § 1226(a) authorizes the Attorney General to subject lawful permanent residents to prolonged detention pending judicial review of a final order of removal without affording an opportunity for an individualized determination on the necessity of the detention before a neutral decision maker. 2008 WL 2902026, at *6. Because prolonged detention of a lawful permanent resident in such circumstances would be “constitutionally doubtful,” we construed § 1226(a) as “requiring the Attorney General to provide the alien with . . . a [bond] hearing.” Id. at *7 (emphasis in original).

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[10] Given the limited holding of Casas-Castrillon, it remains unclear whether due process concerns would require a similar construction of § 1231(a)(6) in a case involving an alien, such as Diouf, who is not a legal permanent resident and who, unlike the alien in Casas-Castrillon, has been ordered removed by the BIA, has exhausted his opportunities to challenge that final order of removal directly, and has previously been granted release on bond and had the bond cancelled for failure to timely depart. The district court did not address the question of whether the post-order custody review process that Diouf received satisfies the requirements of § 1231(a)(6) or the Due Process Clause, and neither does the briefing provided by the parties. Because we do not believe it prudent to decide the question under these circumstances, we vacate the preliminary injunction and remand so that the district court can decide in the first instance, with possible additional fact-finding and more focused briefing from the parties, whether Diouf is entitled to an individualized determination, before a neutral decision maker, of the necessity of his detention under § 1231(a)(6).7

CONCLUSION

For the foregoing reasons, the grant of the writ of habeas corpus is REVERSED, and the preliminary injunction is VACATED and REMANDED for further proceedings consis-

7We note that the district court failed to support its original preliminary injunction with findings of fact and conclusions of law, as it was required to do. See Fed. R. Civ. P. 52(a) (providing that a district court that grants a preliminary injunction “must find the facts specifically and state its conclusions of law separately”); see also Fed. R. Civ. P. 65(d). Findings of fact and conclusions of law are important to help the parties understand the reasons for the decision and to facilitate meaningful appellate review. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 423 (4th Cir. 1999); see also Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316 (1940) (“It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a).”).

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tent with this opinion.

REVERSED in part; VACATED and REMANDED in part.

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMADOU LAMINE DIOUF,



Petitioner-Appellant,

v.

JANET NAPOLITANO, Secretary,

Department of Homeland

Security;* JULIE L. MYERS,

Assistant Secretary, United States

No. 09-56774

Immigration and Customs

 Enforcement; NORMA BONALES-
GARIBAY, Field Office Director US

D.C. No. 2:06-cv-07452-TJH-

Immigration and Customs

FMO

Enforcement; GEORGE MOLINAR,

OPINION

Chief of Detention and Removal

Operations, San Pedro Detention

Facility; STUART CORTEZ, Officer-

in-Charge, San Pedro Detention

Facility; ERIC H. HOLDER JR.,

Attorney General,**

 Respondents-Appellees.

Appeal from the United States District Court for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted October 4, 2010—Pasadena, California

*Janet Napolitano is substituted for her predecessor, Michael Chertoff, as Secretary of Homeland Security, pursuant to Fed. R. App. P. 43(c)(2).
**Eric H. Holder Jr. is substituted for his predecessor, Michael B. Mukasey, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).
3151

3152

DIOUF v. NAPOLITANO Filed March 7, 2011

Before: Cynthia Holcomb Hall, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.***

Opinion by Judge Fisher

***Before her untimely death, Judge Hall fully participated in the argument and the post-argument conference of the panel and concurred fully in this opinion.

DIOUF v. NAPOLITANO COUNSEL

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Judy Rabinovitz (argued), Farrin R. Anello and Tanaz Moghadam, ACLU Foundation Immigrants’ Rights Project, New York, New York; Peter J. Eliasberg, Ahilan T. Arulanantham and Jennifer Stark, ACLU Foundation of Southern California, Los Angeles, California; Cecillia D. Wang, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; and Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic, Stanford, California, for the petitionerappellant.

Theodore W. Atkinson (argued), Office of Immigration Litigation, Washington, D.C., Tony West, Assistant Attorney General, Civil Division, David J. Kline, Director, District Court Section, Office of Immigration Litigation, Victor M. Lawrence, Principal Assistant Director, and Gjon Juncaj, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for the respondents-appellees.

Charles Roth, National Immigrant Justice Center, Chicago, Illinois, for amicus curiae National Immigrant Justice Center.

OPINION
FISHER, Circuit Judge:
We hold that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community. We accordingly reverse the district court’s denial of petitioner’s motion for a preliminary injunction.
BACKGROUND1
1We provided a more detailed summary of the factual and procedural background in a previously published opinion, Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008) (“Diouf I”).

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Amadou Lamine Diouf, a citizen of Senegal, was admitted to the United States on a student visa in 1996. The visa expired in June 2002. In December 2002, Diouf was found in possession of less than 30 grams of marijuana and charged with a misdemeanor. He pled guilty the following month.

The government initiated removal proceedings against Diouf in January 2003, alleging that he was removable because he had remained in the United States after the expiration of his student visa, failed to maintain nonimmigrant status and committed a controlled-substance offense. The immigration judge (IJ) determined that Diouf was subject to removal. At Diouf’s request, the judge ordered in lieu of removal that he voluntarily depart from the United States by June 24, 2003. The judge also issued an alternate order of removal and ordered that Diouf would be removed to Senegal if he did not depart voluntarily by the specified date. Diouf waived appeal and posted bond on March 3, 2003. Diouf did not petition for review of the voluntary departure order or the alternate removal order.

Following his release, Diouf retained counsel, hoping to reopen the removal proceedings and adjust his status from nonimmigrant alien to lawful permanent resident based on his planned marriage to a United States citizen. He married on June 17, 2003. Although counsel prepared both a motion to reopen the removal proceedings and a request for an extension of the voluntary departure period, he did not file those documents at that time. Meanwhile, the deadline for Diouf’s voluntary departure passed.

Upon learning that Diouf remained in the country beyond the June 24, 2003 departure deadline, Immigration and Customs Enforcement (ICE) sent him a notice requiring him to present himself for removal on September 4, 2003. Diouf failed to report as instructed, so ICE cancelled his bond, apprehended him at his home on March 29, 2005 and detained him pending execution of the removal order. ICE made

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arrangements for Diouf to depart on May 26, 2005 for Senegal. When Diouf refused to leave on that date, ICE continued to detain him.

In late 2005, after obtaining new counsel, Diouf filed a motion to reopen his removal proceedings, arguing that his first attorney had provided ineffective assistance of counsel by failing to file a timely motion to reopen after his marriage, to seek an extension of the voluntary departure date and to appeal the voluntary departure order. The IJ denied the motion to reopen and the Board of Immigration Appeals (BIA) affirmed. Diouf filed a pro se petition for review of that decision in this court and requested a stay of removal. We granted a stay and appointed pro bono counsel to represent him. His petition for review, docketed as No. 06-71922, remains pending before another panel of this court.

Diouf’s detention, which began in March 2005, continued throughout this period. To determine whether Diouf’s ongoing detention remained justified, ICE conducted post-order custody reviews pursuant to 8 C.F.R. § 241.4 on July 21, 2005 and July 25, 2006. In both instances, ICE determined that Diouf should remain in custody pending removal because his “criminal history and lack of family support” suggested he might flee if released.

In November 2006, Diouf filed a 28 U.S.C. § 2241 petition for writ of habeas corpus in district court. He requested the court to enter a preliminary injunction for immediate release on the grounds that his lengthy detention violated 8 U.S.C. § 1226(a) and the Due Process Clause of the Fifth Amendment.2 As an alternative to immediate release, Diouf requested a preliminary injunction ordering an immigration judge to hold a hearing at which the government would have the burden of justifying his detention. On January 4, 2007, the district court

2As we explained in Diouf I, 542 F.3d at 1229, at that time Diouf actually was detained under § 1231(a)(6), not § 1226(a).

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granted a preliminary injunction requiring a bond hearing before an immigration judge. Pursuant to the injunction, the IJ conducted a hearing on February 9, 2007 to determine whether Diouf’s prolonged detention remained justified. After receiving evidence from both sides, the immigration judge ruled that Diouf did not present a sufficient danger to the community or risk of flight to justify the detention, which by then had extended over 22 months. Accordingly, the IJ released Diouf on bond the same day.

In September 2008, this court vacated the preliminary injunction and remanded to the district court. First, we held that at the time Diouf filed his habeas petition, he was detained under 8 U.S.C. § 1231(a)(6), not § 1226(a), as Diouf and the district court had erroneously assumed. See Diouf I, 542 F.3d at 1228-32. Second, we held that Diouf’s detention was authorized by statute because, although it was prolonged, it was not indefinite. See id. at 1232-33. Third, we held that the injunction constituted an abuse of discretion insofar as it relied on the erroneous premise that Diouf was being detained under § 1226(a). See id. at 1233-35. Finally, we remanded to the district court to determine in the first instance “whether aliens such as Diouf, who are detained under § 1231(a)(6), are entitled to receive bond hearings and to obtain release on bond unless the Government proves that they are a danger or a flight risk.” Id. at 1234; cf. Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 951 (9th Cir. 2008) (holding that these procedural safeguards apply to aliens detained under § 1226(a)).

On remand, the district court concluded that individuals facing prolonged detention under § 1231(a)(6) are not entitled to a bond hearing and accordingly denied Diouf’s motion for a preliminary injunction. Diouf timely appealed. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we reverse.3

3Before oral argument, we asked the parties to brief whether Diouf’s claims have become moot given that he has been free on bond since Feb-

DIOUF v. NAPOLITANO STANDARD OF REVIEW

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We review denial of a preliminary injunction for an abuse of discretion. See Harris v. Bd. of Supervisors, 366 F.3d 754, 760 (9th Cir. 2004). The district court abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. See id. Accordingly, whether § 1231(a)(6) requires a bond hearing is a question of law reviewed de novo.

DISCUSSION

We hold that individuals detained under § 1231(a)(6) are entitled to the same procedural safeguards against prolonged detention as individuals detained under § 1226(a).

I.

When the United States commences removal proceedings against an alien, the Attorney General has discretion to detain the alien “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a).4,5 If the

ruary 2007 and the government has not to date elected to redetain him (despite our decision vacating the preliminary injunction that had led to the immigration court hearing that had ordered him released on bond). Consistent with the position taken by both sides in their supplemental briefing, we are satisfied that his claims have not become moot. The voluntary cessation exception to mootness applies because — absent action by this court — the government could redetain Diouf, and deny him a bond hearing, at any time. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). The government has offered no assurance that Diouf will not be redetained; Picrin-Peron v. Rison, 930 F.2d 773, 775-76 (9th Cir. 1991), is therefore distinguishable.
4For aliens who have been convicted of certain crimes, including aggravated felonies, detention during this period is mandatory. See 8 U.S.C. § 1226(c).
5On March 1, 2003, various immigration enforcement responsibilities of

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proceedings result in an order of removal, the Attorney General is required to remove the alien from the United States within a period of 90 days, known as the “removal period.” See id. § 1231(a)(1)(A).6 Detention during the relatively brief removal period is mandatory. See id. § 1231(a)(2). The removal period begins on the latest of the date the order of removal becomes administratively final or, if the alien files a petition for review in the court of appeals and the court of appeals orders a stay of removal, the date of the court of appeals’ final order upholding the order of removal. See id. § 1231(a)(1)(B). At all times before the removal period begins and mandatory detention is authorized by § 1231(a)(2), the alien is subject to discretionary detention under § 1226(a).

[1] If the alien is not removed during the removal period, continued detention is authorized, in the discretion of the Attorney General, by § 1231(a)(6), the statutory provision at issue here. Section 1231(a)(6) authorizes continued detention “beyond the removal period” of an alien “who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” Id. § 1231(a)(6). Section 1231(a)(6) encompasses aliens such as Diouf, whose collateral challenge to his removal order (a motion to reopen) is pending in the court of appeals, as well as to aliens who have exhausted all direct and collateral review of their removal orders but who, for one reason or another, have not yet been removed from the United States.

the Attorney General were transferred to the Secretary of the newly created Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. For sake of convenience, in this opinion we refer to the Attorney General rather than the Secretary of Homeland Security to maintain conformity with the language of the statutes themselves.
6The removal period may be extended beyond 90 days if the alien fails to cooperate in his departure or removal from the United States. See 8 U.S.C. § 1231(a)(1)(C).

DIOUF v. NAPOLITANO II.

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[2] In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), we addressed the prolonged detention of aliens under § 1226(a) while seeking direct judicial review of their administratively final orders of removal. The petitioner in that case, a legal permanent resident, had been detained in 2001, when the government commenced removal proceedings against him based on his having been convicted of two crimes involving moral turpitude. See id. at 944-45. The petitioner remained in detention for the next seven years. Over that time span, an immigration judge issued an order of removal, the BIA affirmed the order, the petitioner filed a petition for review of the removal order in this court and we granted the petition and remanded the matter to the BIA. See id. at 945. The petitioner ultimately filed a habeas petition, arguing that “his prolonged detention without a meaningful opportunity to contest the necessity of continued detention violated his right to procedural due process.” Id. We determined that his habeas petition had merit. First, we concluded that in the context of civil immigration proceedings, “prolonged detention without adequate procedural protections would raise serious constitutional concerns.” Id. at 950. Second, applying the canon of constitutional avoidance to address those concerns, we held as a matter of statutory interpretation that § 1226(a) requires the Attorney General to provide aliens with a bond hearing before an immigration judge to determine the necessity of their ongoing detention. See id. at 950-52.7 We concluded that “an alien is entitled to release on bond unless the ‘government establishes that he is a flight risk or will be a danger to the community.’ ” Id. at 951 (quoting Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005)).

7The canon of constitutional avoidance is a “cardinal principle” of statutory interpretation. Zadvydas v. Davis, 533 U.S. 678, 689 (2001). “[W]hen an Act of Congress raises a serious doubt as to its constitutionality, this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Id. (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)) (internal quotation marks omitted).

3162

DIOUF v. NAPOLITANO III.

[3] We now extend Casas-Castrillon to aliens detained under § 1231(a)(6). We find no basis for withholding from aliens detained under § 1231(a)(6) the same procedural safeguards accorded to aliens detained under § 1226(a). As was the case in Casas-Castrillon, prolonged detention under § 1231(a)(6), without adequate procedural protections, would raise “serious constitutional concerns.” Casas-Castrillon, 535 F.3d at 950. To address those concerns, we apply the canon of constitutional avoidance and construe § 1231(a)(6) as requiring an individualized bond hearing, before an immigration judge, for aliens facing prolonged detention under that provision. See id. at 951. Such aliens are entitled to release on bond unless the government establishes that the alien is a flight risk or will be a danger to the community. See id.

IV.

The government’s brief offers several arguments for treating aliens facing prolonged detention under § 1231(a)(6) differently from those detained under § 1226(a). We address these arguments in turn, but find none persuasive.

A. Direct Versus Collateral Review

[4] The government’s primary argument for treating § 1226(a) detainees differently from § 1231(a)(6) detainees is that the former are detained while seeking direct judicial review of administratively final orders of removal whereas the latter are detained while seeking collateral review of final orders of removal (through motions to reopen). According to the government, this distinction matters in two ways: first, an alien who is subject to a final order of removal and who is merely attacking removal collaterally has a weaker liberty interest in being free from governmental detention than one who is challenging a removal order on direct review; and, second, the government has a stronger interest in detaining an

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alien who is collaterally attacking a removal order because the alien is closer to the point of actual, physical removal from the United States. As we shall explain, these distinctions may have some marginal validity, but they do not justify disparate treatment of § 1231(a)(6) detainees.

1. Detainees’ Liberty Interest

[5] The government may be correct that at the margin, § 1231(a)(6) detainees have a lesser liberty interest in freedom from detention.8 Unlike a § 1226(a) detainee, a § 1231(a)(6) detainee is subject to a final order of removal and is thus, at least as a theoretical matter, closer to actual removal from the United States. This difference in status may matter. See Zadvydas v. Davis, 533 U.S. 678, 694 (2001) (stating that the nature of the due process protection an alien is due “may vary depending upon status and circumstance”); cf. Demore v. Kim, 538 U.S. 510, 552 (2003) (Souter, J., concurring in part and dissenting in part) (arguing that aliens detained under § 1226(c) should be afforded greater procedural protections than those detained under § 1231(a)(6) because the latter have “already been ordered removed and therefore enjoy[ ] no lawful immigration status”); id. at 56061 (suggesting that persons detained “pending removal proceedings” have a “stronger claim” than those detained “after entry of a removal order”). But the government makes too

8To the extent the government contends that aliens detained under § 1231(a)(6) possess no liberty interest in freedom from detention, we cannot agree. In Zadvydas, the Supreme Court rejected the argument that § 1231(a)(6) detainees possess no liberty interest in freedom from civil detention merely because they lack a “legal right” to live at large in the United States. See Zadvydas, 533 U.S. at 696. In Casas-Castrillon, moreover, we made clear that this liberty interest applies not only to indefinite detention, but also to prolonged detention. See Casas-Castrillon, 535 F.3d at 950 (“We conclude that prolonged detention without adequate procedural protections would raise serious constitutional concerns.”). Any suggestion that persons in Diouf’s position lack a liberty interest against prolonged detention is thus untenable.

3164

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much of this distinction. Regardless of the stage of the proceedings, the same important interest is at stake — freedom from prolonged detention. The liberty interests of persons detained under § 1231(a)(6) are comparable to those of persons detained under § 1226(a).

Minimizing § 1231(a)(6) detainees’ liberty interests also understates the importance of motions to reopen in safeguarding immigrants’ rights. As the Supreme Court has explained, “[t]he purpose of a motion to reopen is to ensure a proper and lawful disposition” of an alien’s claims: it is an “important safeguard” of the alien’s rights. Dada v. Mukasey, 554 U.S. 1, 18 (2008) (emphasis added). Motions to reopen afford aliens a means to challenge in absentia removal orders, to set aside removal orders when an underlying conviction upon which the removal was based has been vacated, to raise (as in Diouf’s case) a claim that the removal order resulted from ineffective assistance of counsel and to raise an argument that new developments would show that removal to a particular country would result in torture or persecution. See Amicus Br. of Nat’l Immigrant Justice Ctr. at 4-23.

2. The Government’s Interest

The government also may be correct that it has a marginally greater interest in detaining § 1231(a)(6) detainees than § 1226(a) detainees. The primary purpose of § 1231(a)(6) is “assuring the alien’s presence at the moment of removal.” Zadvydas, 533 U.S. at 699. This interest strengthens as actual removal from the United States becomes closer in time and more certain to occur. In part, this is because an alien’s incentive to flee may increase as the removal date approaches.

The distinctions between § 1226(a) and § 1231(a)(6), however, are not substantial enough to justify denying a bond hearing to all aliens subject to extended detention under § 1231(a)(6). First, the government has an interest in ensuring that aliens are available for removal if their legal challenges

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do not succeed whether they are detained under § 1226(a) or § 1231(a)(6). Second, in either circumstance, the government’s interest in the prompt removal of aliens who have exhausted their legal challenges is served by the bond hearing process itself. If the alien poses a flight risk, detention is permitted.

[6] Third, the same concerns about prolonged detention arise irrespective of whether an alien has petitioned for review of an order of removal (direct review) or an order denying a motion to reopen (collateral review). In both situations, it may take years for the petitions for review to be resolved. Diouf’s petition for review from the BIA’s decision denying his motion to reopen, for example, was filed in 2006 and remains pending today — more than four years later. Thus, although aliens detained pending collateral review may on average be somewhat closer to removal than those detained pending direct review, detention under both circumstances raises substantially the same due process concerns. Fourth, although aliens detained under § 1231(a)(6) may on average be less likely to succeed in setting aside their orders of removal, their motions to reopen certainly may succeed, and in many cases do. It is thus far from certain that § 1231(a)(6) detainees such as Diouf will be removed.

Of course, an alien’s status, as well as the stage of the proceedings, may be relevant to an immigration judge’s assessment of whether detention is necessary to ensure an alien’s availability for removal. As an alien’s hopes of setting aside a removal order fade, the risk of flight may increase. In the same vein, changed circumstances may justify the revocation of release that at one time was properly granted. Nonetheless, although these factors are important enough for an immigration judge to consider at bond hearings, they do not warrant categorically denying to § 1231(a)(6) detainees the right to a bond hearing that § 1226(a) detainees already enjoy.

[7] In sum, although there are shades of difference, § 1231(a)(6) detainees and § 1226(a) detainees are similarly

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situated. Both may be detained for prolonged periods; both may succeed in setting aside their orders of removal; and both may be detained without bond when necessary to ensure their availability for removal.

B. Legal Permanent Resident Status

[8] The government also posits that Casas-Castrillon is distinguishable because Diouf was an admitted alien before he was ordered removed, whereas the alien in Casas-Castrillon was a legal permanent resident. The government may be correct that legal permanent residents, or LPRs, are entitled to greater due process protections than other aliens. See Demore, 538 U.S. at 547 (Souter, J., concurring in part and dissenting in part) (“[W]e have accorded LPRs greater protections than other aliens under the Due Process Clause.”); Zadvydas, 533 U.S. at 694 (opining that the nature of due process protection may vary depending upon an alien’s status). Because we are construing a statute under the canon of constitutional avoidance, however, whether Diouf was a legal permanent resident is irrelevant. What matters is that § 1231(a)(6), like § 1226(a), applies to some legal permanent residents. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (“[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail — whether or not those constitutional problems pertain to the particular litigant before the Court.” (emphasis added)). We therefore cannot distinguish CasasCastrillon on the basis that Diouf himself was not a legal permanent resident.9

9In Diouf I, we noted that Diouf was not a legal permanent resident in order to give the parties the opportunity to address on remand whether this distinction matters to the analysis. See Diouf I, 542 F.3d at 1234-35. For the reasons given in Clark, we have found no basis for distinguishing Casas-Castrillon on this basis.

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C. Express Statutory Authority for Release on Bond

We also reject the government’s contention that CasasCastrillon is distinguishable on the theory that the statutory framework there “already authorized” release on bond, whereas § 1231(a)(6) does not. We recognize that § 1226(a) expressly authorizes release on bond, see 8 U.S.C. § 1226(a)(2), whereas § 1231(a)(6) does not. But we have no doubt that bond is also authorized under § 1231(a)(6), as we have held and as Department of Homeland Security (DHS) regulations acknowledge. See Diouf I, 542 F.3d at 1234 (“We have specifically construed § 1231(a)(6) to permit release on bond.”); 8 C.F.R. § 241.5(b). We thus see no meaningful distinction between applying the doctrine of constitutional avoidance here and applying it in Casas-Castrillon.

D. Deference to DHS Regulations

We also disagree with the government’s contention that DHS regulations provide sufficient safeguards to protect the liberty interests of § 1231(a)(6) detainees, obviating the need for hearings before an immigration judge in all cases. The government argues that we should accord Chevron deference to these regulations, which address the issue of prolonged detention under § 1231(a)(6) by providing for one or more “post-order custody reviews” by DHS employees, but not for an independent determination of the need for continued detention by a neutral decisionmaker such as an immigration judge. See 8 C.F.R. §§ 241.4, 241.13, 241.14.10

[9] Under the DHS regulations, the custody reviews are supposed to take place within 90 days, 180 days and 18 months of confinement. During the 90-day removal period,

10The government modified these regulations in response to the Supreme Court’s Zadvydas decision. See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56967, 56969 (Nov. 14, 2001).

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DHS is required to detain the alien. See 8 U.S.C. § 1231(a)(2). Upon conclusion of the 90-day removal period the statute authorizes continued detention in the discretion of the Attorney General. See id. § 1231(a)(6). Under the regulations, DHS is required to conduct an initial custody review before the 90day removal period expires if the alien’s removal cannot be accomplished during the removal period (“the 90-day review”). See 8 C.F.R. § 241.4(k)(1)(i). The alien is afforded certain rights with respect to this review, including the rights to receive written notice of the review, to submit information in writing to support release and to be assisted by any individual of his or her choosing in preparing or submitting information in response to the notice. See id. § 241.4(h)(1)-(2). At the conclusion of the review, DHS may either release the alien on supervised release, see 8 U.S.C. § 1231(a)(3), or continue the alien’s detention beyond the removal period under § 1231(a)(6), pending removal or further review of his or her custody status. See 8 C.F.R. § 241.4(k)(1)(i). If the alien is not released or removed at the time of the 90-day review, he or she will receive a second review three months later, or after 180 days have passed from the date the removal period began (“the 180-day review”). See id. § 241.4(k)(2)(ii). If the alien is not released following the 180-day review, a subsequent review will be commenced within approximately one year after the 180-day review — i.e., 18 months after the beginning of the removal period. See id. § 241.4(k)(2)(iii).

The government contends that these regulations provide adequate procedures to protect aliens’ liberty interests and that we should defer to them under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron’s two-step framework, the court first must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear,” then the court “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. Under the second step, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the

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agency’s answer is based on a permissible construction of the statute.” Id. at 843.

We may not defer to DHS regulations interpreting § 1231(a)(6), however, if they raise grave constitutional doubts. See, e.g., Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n.15 (9th Cir. 2001) (“Although we recognize that, in general, the Attorney General’s interpretation of the immigration laws is entitled to substantial deference, . . . Chevron principles are not applicable where a substantial constitutional question is raised by an agency’s interpretation of a statute it is authorized to construe.”) (citations omitted); Williams v. Babbitt, 115 F.3d 657, 662-63 (9th Cir. 1997) (holding that courts should not apply Chevron deference to an agency’s interpretation that “raises serious constitutional concerns”); see also Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008) (“It is well established that the canon of constitutional avoidance does constrain an agency’s discretion to interpret statutory ambiguities, even when Chevron deference would otherwise be due.”); Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (“This canon of constitutional avoidance trumps Chevron deference, and we will not submit to an agency’s interpretation of a statute if it ‘presents serious constitutional difficulties.’ ” (quoting Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995)) (citation omitted)).11

In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court articulated a balancing test for deciding what procedures are required when there has been a deprivation of liberty and due process is required. This test

11We have held that the constitutional avoidance canon plays no role during step two in the Chevron framework. See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc). But the canon applies at Chevron step one, because it is “a means of giving effect to congressional intent.” Clark, 543 U.S. at 382.

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generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335.

Here, the DHS regulations providing for the initial, 90-day review do not raise serious constitutional concerns. Our focus here, as in Casas-Castrillon, is on prolonged detention. The 90-day review authorizes detention for only an additional 90 days, bringing the alien’s period of detention (including the removal period) to 180 days. Detention during this period certainly affects aliens’ interests in freedom from confinement, and requires that adequate procedural safeguards be in place to protect against the erroneous deprivation of liberty. But given the relatively limited period of detention involved, and in view of the Mathews factors as a whole, the process afforded by the DHS regulations is adequate.

[10] The DHS regulations governing the 180-day review, however, do raise serious constitutional concerns. When the 180-day review takes place, the alien has been detained for approximately six months and the review, if unfavorable to the alien, authorizes detention for an additional year. At this point, the alien’s continuing detention becomes prolonged. See Casas-Castrillon, 535 F.3d at 950 (distinguishing the prolonged detention at issue in that case (seven years) from Demore, in which the Supreme Court upheld a six-month detention under § 1226(c) “with the specific understanding that § 1226(c) authorized mandatory detention only for the ‘limited period of [the alien’s] removal proceedings,’ which

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the Court estimated ‘lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal’ his removal order to the BIA”) (quoting Demore, 538 U.S. at 530)); see also Zadvydas, 533 U.S. at 701 (treating six months as a “presumptively reasonable period of detention” in a related context). When the period of detention becomes prolonged, “the private interest that will be affected by the official action,” Mathews, 424 U.S. at 335, is more substantial; greater procedural safeguards are therefore required. See Zadvydas, 533 U.S. at 701 (explaining that the due process analysis changes as “the period of . . . confinement grows”).

[11] Thus, at the 180-day juncture, the DHS regulations are appropriate but not alone sufficient to address the serious constitutional concerns raised by continued detention. The regulations do not afford adequate procedural safeguards because they do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.12 See Casas-Castrillon, 535 F.3d at 951-52 (holding that the post-order custody review “falls far short of the procedural protections afforded in ordinary bond hearings, where aliens may contest the necessity of their detention before an immigration judge and have an opportunity to appeal that determination to the BIA”); see also Zadvydas, 533 U.S. at 692 (holding that indefinite detention under § 1231(a)(6) raised serious constitutional concerns, in part because “the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous”). When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound.13 Fur-

12Under the regulations, an in-person hearing is permitted, but not required. See 8 C.F.R. § 241.4(h)(1).
13If the 180-day threshold has been crossed, but the alien’s release or removal is imminent, DHS is not required to conduct a 180-day review,

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thermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one.

[12] Diouf’s own case illustrates why a hearing before an immigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6). The government detained Diouf in March 2005. DHS conducted custody reviews under § 241.4 in July 2005 and July 2006. In both instances, DHS determined that Diouf should remain in custody pending removal because his “criminal history and lack of family support” suggested he might flee if released. In February 2007, however, an immigration judge determined that Diouf was not a flight risk and released him on bond. If the district court had not ordered the bond hearing on due process grounds, Diouf might have remained in detention until this day. To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.

CONCLUSION

We hold that an alien facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigra-

see 8 C.F.R. § 241.4(k)(3), and neither should the government be required to afford the alien a hearing before an immigration judge. As a general matter, detention is prolonged when it has lasted six months and is expected to continue more than minimally beyond six months. By the same token, DHS should be encouraged to afford an alien a hearing before an immigration judge before the 180-day threshold has been reached if it is practical to do so and it has already become clear that the alien is facing prolonged detention. When, for example, this court grants a stay of removal in connection with an alien’s petition for review from a denial of a motion to reopen, the alien’s prolonged detention becomes a near certainty.

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tion judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. We accordingly reverse the order of the district court denying Diouf’s motion for a preliminary injunction.

REVERSED and REMANDED.