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The name of this case and the R & R indicate that Beqir is petitioner’s last name. However, the

remainder of his administrative record demonstrates that his last name is Krasniqi. (See, e.g. Dkt. #12 at L27).

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART R&R

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KRASNIQI BEQIR,1

Petitioner,

v.

A. NEIL CLARK, et al.,

Respondents.

CASE NO. C05-1587-RSM-JPD

ORDER ADOPTING IN

PART AND DECLINING

TO ADOPT IN PART

REPORT AND

RECOMMENDATION

AND DENYING HABEAS

PETITION

This matter comes before the court on petitioner’s and respondents’ Objections to the

Report and Recommendation (“R&R”) issued by United States Magistrate Judge James P.

Donohue, recommending that this Court grant petitioner’s habeas petition in part and remand

the matter to an Immigration Judge (“IJ”) for a bond hearing. (Dkt. #15-1). 

Having reviewed the R&R in light of petitioner’s and respondents’ objections, as well as

the remainder of the record, the Court does hereby find and ORDER:

(1) The Court ADOPTS the R&R to the extent that it determines that the Court has

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Historically, courts have relied on the doctrine of “waiver” as the basis for the proposition that

detainees who do not avail themselves of available procedures may not bring claims that those procedures

violated their due process rights. See, e.g. Rathjen v. Litchfield, 878 F.2d 836, 840 (5th Cir. 1989); Dusanek v.

Hannon, 677 F.2d 538, 543 (2d Cir. 1982). However, following the Lujan decision and its line of standing

jurisprudence, courts have analyzed failure to avail onself of available procedure as a standing question. See

Shavitz v. City of High Point, 270 F.Supp.2d 702, 710 n8 (M.D.N.C. 2003) (finding that “[p]laintiff [had] not

taken advantage of the procedural processes offered to him, therefore he [had] not been harmed one way or

another by such processes and, accordingly, [could] not challenge them on due process grounds.”).

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART R&R

PAGE - 2

proper subject matter jurisdiction over petitioner’s request for release pending appeal. 

(2) The Court ADOPTS the R&R to the extent that it determines that the “exclusionary

rule” does not apply in civil removal proceedings.

(3) The Court DECLINES TO ADOPT the R&R to the extent that it finds that

petitioner’s due process rights have been violated, and to the extent that it recommends that this

court remand the matter to an IJ for a bond hearing.

The Court finds that petitioner does not have standing to raise a claim that the written

hearing procedure provided to him was insufficient to satisfy due process requirements. In

order to have standing to bring his due process claim, petitioner must have suffered actual injury

as a result of the written hearing about which he complains. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S.Ct. 2130, 2136 (1992); see also Lewis v. Casey, 518 U.S. 343, 351,

116 S.Ct. 2174, 2180 (1996) (holding that prisoners did not have standing to bring claims that

the insufficiency of the prison library violated their constitutional rights unless they showed that

this actually hindered their efforts to pursue legal claims). Petitioner wholly refused to avail

himself of the written hearing procedure provided by ICE. (Dkt. #19 at 6). Petitioner therefore

cannot claim that his continued detention resulted from the written hearing procedure, and the

Court will not speculate as to what the outcome of the written hearing would have been had

petitioner participated.2

 Because petitioner cannot claim actual injury as a result of the ICE

hearing procedure, he does not have standing to bring a due process claim. 

(4) The Court adds the following in response to petitioner’s objections:

 a. Post-Removal-Order Detention and Zadvydas 

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Respondents argue that petitioner’s removal period has, in fact, begun because his removal order is

administratively final, and he is therefore being held under INA section 241 (8 U.S.C. § 1231 (2005)) (the postremoval-order provision of the statute). (Dkt. #19 at 3-4); See 8 U.S.C. § 1231(b)(i). However, the plain

language of section 241(b) provides that if a judicial court stays the alien’s removal pending judicial review, the

removal period does not begin until that court has issued a final order. 8 U.S.C. § 1231(b)(ii). The Ninth Circuit

has granted petitioner a stay of removal pending appeal. (Dkt. #15 at 3). Accordingly, petitioner is still being

held under INA section 236 (the pre-removal-order provision of the INA). Respondent cites one case on point

(an unpublished order from this Court) for the proposition that once a removal order is administratively final, an

alien is subject to “post-removal-order” detention under section 241. Glassia v. Coleman, C02-1222R (W.D.

Wash.) (Order Denying Petitioner’s Motion for Reconsideration). However, the Court is persuaded by other

well-reasoned authority, including a more recent published decision from this Court, indicating that section 236

(the pre-removal-order provision) applies to petitioner. 8 U.S.C. § 1226 (2005). See Quezada-Bucio v. Ridge,

317 F.Supp. 1221, 1223-1224 (W.D. Wash. 2004); Morena v. Gonzales, 2005 WL 3277995, *3-4 (M.D. Penn.

2005); Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003). The Court concludes that petitioner is being held

pursuant to INA section 236, and that his removal period has not yet begun. 

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART R&R

PAGE - 3

Petitioner argues that he is being held indefinitely, contrary to the mandate in Zadvydas v.

Davis, 533 U.S. 678, 701 (2001). (Dkt. #22 at 1-2). The Zadvydas court held that a court may

order a detainee to be released if: (1) his removal period has expired, (2) he has been held for an

additional ninety days, and (3) the government cannot show that he will be removed in the

foreseeable future. Id. The Zadvydas rule is inapplicable to petitioner for two reasons. First,

petitioner’s removal period has not yet begun because the Ninth Circuit has stayed his removal

pending his appeal.3

 See 8 U.S.C. § 1231(a)(1)(B)(ii). Second, respondents correctly note that

petitioner’s removal is reasonably foreseeable; when the Ninth Circuit decides his appeal, ICE

will remove or release petitioner. (Dkt. #19 at 8). This Court is not compelled to order

petitioner’s release pursuant to Zadvydas.

b. Fifth Amendment Self-Incrimination 

Petitioner also argues that respondents violated his Fifth Amendment protection against

self-incrimination. He submits that respondents used evidence that the Anchorage police

obtained in a coercive interrogation in order to place him in removal proceedings and detain

him. (Dkt. #18 at 4). However, the record shows that respondents did not use any evidence

obtained in connection with petitioner’s arrest in order to initiate removal proceedings against

him. Instead, the Anchorage police merely correctly identified petitioner, and ICE officials

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ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART R&R

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subsequently reviewed his file and determined that he had overstayed his visa and was likely

removable. (See Dkt. #15 at 4). Petitioner’s Fifth Amendment self-incrimination claim fails. 

c. Costs and Fees Pursuant to the Equal Access To Justice Act 

Last, petitioner requests “financial compensation” under the Equal Access to Justice Act,

28 U.S.C. § 2412 et. seq. (1994 and supp. 2005). (Dkt. #22 at 2-3). The EAJA directs the

court to award costs, fees, and other expenses of the prevailing party in a civil action against the

United States, unless the United States’ position was substantially justified. 28 U.S.C. §

2412(d)(1)(A) (supp. 2005). Because petitioner is not the prevailing party in this action, he is

not entitled to costs and fees.

(5) Petitioner’s habeas petition is hereby DENIED. 

(6) The Clerk shall direct copies of this Order to all counsel of record, and to the

Honorable James P. Donohue, United States Magistrate Judge.

DATED this __6__ day of June, 2006.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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