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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KRASNIQI BEQIR,

Petitioner,

v.

A. NEIL CLARK, et al.,

Respondents.

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Case No. C05-1587-RSM-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION

Petitioner Krasniqi Bequir is a native and citizen of Yugoslavia who is currently in the

custody of the United States Immigration and Customs Enforcement (“ICE”). On September 29,

2005, he filed, pro se, a habeas corpus petition under 28 U.S.C. § 2241, challenging his final

order of removal and his continued detention. (Dkt. #1). Petitioner alleges that the

“[d]eportation charge is vague” under section 237(a)(1)(B) of the Immigration and Nationality

Act (“INA”), and that his continued detention is unlawful because he was taken into ICE custody

following an “unlawful arrest.” (Dkt. #1 at 3). Petitioner also contends that he is entitled as a

matter of procedural due process to a bond hearing before a neutral adjudicator. (Dkt. #14 at 8).

Respondents argue that the Court lacks jurisdiction to hear petitioner’s challenge to his

underlying removal order under the REAL ID Act, and that petitioner is lawfully detained

pending the outcome of his removal proceedings. (Dkt. #11). 

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REPORT AND RECOMMENDATION

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Having reviewed the entire record, I recommend that petitioner’s habeas petition be

GRANTED in part and DENIED in part, and that respondents’ motion to dismiss be GRANTED

in part and DENIED in part.

II. BACKGROUND

Petitioner Krasniqi Bequir is a native and citizen Yugoslavia. (Dkt. #12 at L27). He

initially entered the United States at New York, New York, on or about April 2, 1985, as a nonimmigrant visitor with authorization to remain in the country until October 1, 1985. Id. On June

15, 1990, petitioner applied for political asylum in New York. (Dkt. #12 at L9). On November

6, 1990, petitioner was advised that the former Immigration and Naturalization Service intended

to deny his request for asylum based on its opinion that petitioner did not have a well-founded

fear of persecution upon return to Yugoslavia within the meaning of the INA. (Dkt. #12 at R49,

R83, L10).

On June 14, 2004, he was arrested by the Anchorage Police Department for indecent

exposure outside a restaurant in Anchorage, Alaska. (Dkt. #12 at R82-83). The Anchorage

Police Department notified the Anchorage ICE field office that petitioner, a native and citizen of

Yugoslavia, had been arrested for indecent exposure. (Dkt. #12 at R78). The indecent exposure

charge was subsequently dropped. Following his police detention, petitioner was transferred to

the custody of ICE officials in Anchorage. (Dkt. #12 at R78). On June 23, 2004, while still in

custody, petitioner was served with a Notice to Appear charging him with removal under INA §

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States beyond October 1,

1985, without authorization. (Dkt. #12 at R82). The Department of Homeland Security (“DHS”)

determined that petitioner was a flight risk due to two previous arrests in Florida and Arizona for

Lewd Behavior and Aggravated Assault, respectively, though neither or those arrests resulted in

conviction, and set bond at $15,000. (Dkt. #12 at R82). Petitioner declined a redetermination

of the DHS custody determination by an Immigration Judge. (Dkt. #12 at L14).

On March 7, 2005, petitioner appeared for his Master Hearing before an Immigration

Judge (“IJ”). (Dkt. #12 at L207-228). The IJ denied petitioner’s application for asylum and

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Nicaraguan and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat 2193, 2196

(“NACARA”), amended by, Pub. L. No. 105-139, 111 Stat. 2644.

REPORT AND RECOMMENDATION

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withholding of removal, and his application for special-rule cancellation of removal under

NACARA.1

 Id. The IJ ordered petitioner removed from the United States to Australia or, in the

alternative, Serbia-Montenegro, based on the charges in the Notice to Appear. Id.

On March 15, 2005, petitioner filed a Notice of Appeal with the Board of Immigration

Appeals (“BIA”). (Dkt. #12 at L232). On June 21, 2005, the BIA affirmed the IJ’s decision.

(Dkt. #12 at L238). On July 5, 2005, petitioner appealed to the Ninth Circuit Court of Appeals.

(Dkt. #12 at R91-116). The Ninth Circuit ordered a stay of removal pending its review of

petitioner’s appeal. (Dkt. #12 at R119). Petitioner’s appeal is currently pending with the Ninth

Circuit. On October 14, 2005, ICE Field Office Director A. Neil Clark issued a letter, denying

petitioner release from detention. (Dkt. # 12 at L398-99). Mr. Clark stated that, 

An officer of Immigration and Customs Enforcement (ICE) has recently reviewed your

case. The officer has presented the results of that review to me so that I may make a

decision regarding your custody status. Therefore, pursuant to the authority contained

in section 236 and 241 of the Immigration and Nationality Act, and parts 236 and 241

of the Code of Federal Regulations, I have determined that you shall continue to be

detained in the custody of ICE pending the result of your appeal before the Ninth

Circuit Court of Appeals. Your case will be reviewed again in approximately one year.

Id. 

III. DISCUSSION

A. Subject Matter Jurisdiction.

Petitioner argues that the IJ’s removal order is “vague,” therefore making his detention

unlawful. Plaintiff further claims constitutional violations under the First, Fourth, Fifth, and

Eighth Amendments as well as violations of various regulations and civil rights statutes. (Dkt.

#1). Pursuant to Section 106 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231

(codified at 8 U.S.C. § 1252), however, claims by petitioner in which he challenges his

administratively final order of removal may not be considered in this habeas corpus action. The

sole and exclusive means to review an order or removal, such as the one challenged herein, is

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through a petition for review with the appropriate court of appeals. INA § 242(a)(5), (b)(2), 8

U.S.C. § 1252(a)(5), (b)(2). Accordingly, petitioner’s claims challenging his removal order must

be dismissed. Nonetheless, his separate claim that he is entitled to release from detention pending

removal is properly before the district court on petition under 28 U.S.C. § 2241.

B. The Exclusionary Rule is Inapplicable.

Petitioner claims that his June 14, 2004, arrest by the Anchorage Police Department for

indecent exposure, which led to his being placed in removal proceedings, was unlawful and in

violation of the Fourth Amendment. (Dkt. #1 at 3). Petitioner appears to challenge his detention

on the basis that his immigration arrest was the “fruit” of an unlawful arrest and “conspiracy.”

(Dkt. #1 at 3.2.).

As a general rule, the exclusionary rule is not applicable in civil removal proceedings to

suppress evidence asserted to be procured in violation of the Fourth Amendment. INS v. LopezMendoza, 468 U.S. 1032, 1040, 104 S. Ct. 3479 (1984)(“[t]he mere fact of an illegal arrest has

no bearing on a subsequent deportation proceeding.”); see also Cervantes-Cuevas v. INS, 797

F.2d 707, 710 (9th Cir. 1985); Medina-Sandoval v. INS, 524 F.2d 658 (9th Cir. 1975). Moreover,

“[i]nsofar as a petitioner’s challenge rests on an allegedly illegal arrest which results in

identifying a person for deportation proceedings does not invalidate the proceedings.” Wong

Chung Che v. INS, 565 F.2d 166, 168 (1st Cir. 1977); see also Hoosilapa v. INS, 575 F.2d 735,

738 (9th Cir. 1978).

Here, the Anchorage Police Department notified the Anchorage ICE field office that

petitioner, a native and citizen of Yugoslavia, was arrested for indecent exposure. Immigration

officers reviewed petitioner’s alien file and determined that he had overstayed his visitor visa.

While in the custody of the State of Alaska pending disposition of his indecent exposure charge,

immigration officers issued a Warrant for Arrest of Alien and petitioner was transferred into ICE

custody thereafter. (Dkt. #12 at R83, L25).

Even assuming arguendo that petitioner’s arrest by the Anchorage Police Department was

unlawful, it is well established that the illegal arrest of an alien unlawfully in the United States

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does not void a subsequent deportation order based on the alien’s admission of his status. LopezMendoza, 468 U.S. at 1040. As the Supreme Court recently held, even when officers have no

basis for suspecting a particular individual, they may generally ask questions of that individual,

including his or her name, date and place of birth, and immigration status. Meuhler v. Mena, 544

U.S. 93, 125 S. Ct. 1465, 1471, 1472 n.3 (2005). Accordingly, petitioner’s argument that his

immigration detention is unlawful as the fruit of an unlawful arrest is without merit.

C. Procedural Due Process.

Petitioner argues that he is entitled as a matter of due process to a bond hearing before a

neutral adjudicator. In this case, petitioner has not had a bond hearing before a neutral

adjudicator. Rather, the ICE Field Office Director issued a written determination denying

petitioner’s request for release.

The Court agrees that petitioner’s due process rights have been violated by ICE’s failure

to provide him with an individualized bond hearing. See Morisath v. Smith, 988 F. Supp. 1333,

1340 (W.D. Wash. 1997)(citing St. John v. McElroy, 917 F. Supp. 243, 248 (S.D.N.Y. 1996);

Caballero v. Caplinger, 914 F. Supp. 1374, 1378 (E.D. La. 1996); Kellman v. District Director,

750 F. Supp. 625 (S.D.N.Y. 1990); Paxton v. INS, 745 F. Supp. 1261, 1265 (E.D. Mich. 1990);

Agunobi v. Thornburgh, 745 F. Supp. 533 (N.D. Ill. 1990); Leader v. Blackman, 744 F. Supp. 500

(S.D.N.Y. 1990)); see also Morales-Izquierdo v. Johnston , Case No. C03-89Z (W.D. Wash);

Felix v. Ashcroft, Case No. 02-2330L (W.D. Wash). Furthermore, it is not enough that the ICE

Field Office Director has provided a written decision denying petitioner’s release on bond. In

Morisath, the Court determined that a “written decision [by the District Director] . . . is

inadequate to satisfy due process.” Morisath, 988 F. Supp. at 1340. As the Court explained in

St. John, “due process requires . . . consideration of whether [petitioner], viewed as an individual,

presents a risk to abscond and a threat to the community’s safety.” St. John, 917 F. Supp. at 238.

Accordingly, the Court finds that to satisfy the requirements of due process, petitioner is entitled

to an individualized bond hearing before a neutral adjudicator, not just a written decision rendered

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by the ICE Field Office Director, at which he can attempt to show that he does not pose a flight

risk or a danger to the community. 

IV. CONCLUSION

For the foregoing reasons, I recommend that petitioner’s habeas petition (Dkt. #3) be

GRANTED in part and DENIED in part, and that respondents’ motion to dismiss (Dkt. #11) be

GRANTED in part and DENIED in part. A proposed Order accompanies this Report and

Recommendation.

DATED this 24th day of February, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

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