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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARIA DEL TORO-CHACON,

Petitioner,

v.

MICHAEL CHERTOFF, et al.,

Respondents.

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Case No. C05-1861-RSL-MJB

REPORT AND RECOMMENDATION

I. INTRODUCTION

Petitioner Maria Del Toro-Chacon is a native and citizen of Mexico who is currently in

the custody of the U.S. Immigration and Customs Enforcement (“ICE”). On November 9, 2005,

she filed, through counsel, a habeas corpus petition pursuant to 28 U.S.C. § 2241, and a motion

for temporary restraining order (“TRO”), challenging her continued detention. (Dkt. #1 and #2).

Petitioner requests that this Court issued an order granting her release from custody, or, in the

alternative, directing a bond hearing before a neutral adjudicator. (Dkt. #2). Respondents oppose

petitioner’s motion, arguing that the Court lacks jurisdiction to review the discretionary decision

by ICE to detain petitioner pending her petition for review with the Ninth Circuit Court of

Appeals. Respondents further argue that petitioner has failed to establish any constitutional or

statutory infirmity in ICE’s decision to detain her. (Dkt. #9).

Having reviewed the entire record, I recommend that the Court GRANT petitioner’s

motion for preliminary injunction. (Dkt. #2). 

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On November 18, 2005, petitioner obtained an expungement of her 1997 conviction by the

Superior Court of Washington for King County. (Dkt. #11, Ex. 1).

REPORT AND RECOMMENDATION

PAGE -2

II. BACKGROUND

Petitioner Maria Del Toro-Chacon is a native and citizen of Mexico. (Dkt. #1 at 3). In

1992, she illegally entered the United States without inspection. Petitioner states that she fled

to the United States because of concern for her family’s safety as a result of a vendetta against

her family by another family. (Dkt. #1 at 3). Petitioner is a single mother of two school-aged

children.

On August 9, 1992, King County Police Officer Christopher Badker stopped an

automobile operating without a rear license plate light. (Dkt. #9, Ex. 1). Upon approaching the

vehicle, Officer Badker observed that “the left rear quarter window was broken out, the steering

column cover was broken off, and a bag similar to a rifle bag was lying on the rear seat.” Officer

Badker also learned that the vehicle was reported stolen. The occupants of the vehicle, including

petitioner, were removed from the vehicle and subjected to a “pat-down,” due to the stolen

vehicle report and observation of a rifle bag. During the search, Officer Badker discovered a

golf-ball size bag containing white powder and a scale covered with a white powder residue. A

subsequent search of petitioner’s “fanny pack” resulted in Officer Badker discovering two

additional bags containing a hard black tar substance, later found to contain heroin. Id. On

August 15, 1997, petitioner was convicted in the Superior Court of Washington for King County

of attempted possession of heroin, and was sentenced to five days in prison.1 (Dkt. #11, Ex. 3).

On September 6, 2000, petitioner was arrested at her place of residence during “Operation

Conquistador,” a major operation involving agents from the Drug Enforcement Administration

(“DEA”), the former Immigration and Naturalization Service (“INS”), and the Seattle Police

Department, targeting an international heroin trafficking organization. (Dkt. #9, Ex. 3).

Petitioner was not a target of the investigation but was turned over to immigration officials due

to her unlawful status in the United States. (Dkt. #9, Ex. 3). Petitioner cooperated with agents

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REPORT AND RECOMMENDATION

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by providing information on her brother’s residence, leading to his arrest and conviction. (Dkt.

#2 at 3). Petitioner was subsequently permitted to voluntarily depart the United States in lieu of

being placed in removal proceedings. Id. 

On July 30, 2001, petitioner was encountered by immigration officials after she

voluntarily departed the United States and illegally reentered on September 26, 2000. (Dkt. #9,

Ex. 4). Petitioner was served with a Notice to Appear, charging her with removability under

INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), because she was an alien present in the

United States without being admitted or paroled. (Dkt. # 9, Ex. 6). Petitioner admitted the

allegations contained in the Notice to Appear and conceded removability. (Dkt. #9, Ex. 7). As

relief from removal, however, petitioner applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). (Dkt. #9, Ex. 8). Petitioner sought

relief based on the following:

My sister Blanca’s son’s father, Guadelupe Castrejon-Mendoza, killed another man in

Mexico in 1989. He then ran away and abandoned my sister and her son. She stayed

three days with our parents, and then we all left and went to live with our uncle in

another city because we were afraid of the parents of the dead man, that they would

retaliate against Blanca and her son for what her son’s father did. We lived with our

uncle for about two years. Then someone told our father to tell Blanca to be really

careful because the people started to say that they were going to take revenge, and they

wanted to kill her son, because they wanted Blanca to feel the same way they felt in

losing their son. Other neighbors of our parents said the same thing, that they heard that.

We were so afraid of what would happen that we ran away to the United States. They

still say that they are going to seek revenge, even up to now, and that’s why we never

go back to Mexico to visit our parents, because we are so afraid. I am afraid for myself

and my son, because I look like my sister and our sons look alike, too. Even the INS

officer who arrested us got us mixed up.

(Dkt. #9, Ex. 8 at 5).

On January 16, 2002, the Immigration Judge (“IJ”) denied her applications for asylum,

withholding from removal, and protection under the CAT, but granted her voluntary departure

until March 16, 2002, on the posting of a $500 voluntary departure bond. (Dkt. #9, Ex. 7).

Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). On

October 1, 2002, the BIA affirmed the IJ’s decision without opinion. (Dkt. #9, Ex. 9). On

October 29, 2002, petitioner timely filed, pro se, a petition for review and motion for stay in the

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REPORT AND RECOMMENDATION

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Ninth Circuit. (Dkt. #9, Ex. 10). On April 16, 2003, the Ninth Circuit granted petitioner’s

motion for a stay of removal pending the adjudication of her petition for review. On October 31,

2003, attorney Kaaren Barr filed a notice of appearance, and the Ninth Circuit set a briefing

schedule, which was later extended to January 26, 2004. On March 10, 2004, the Ninth Circuit

dismissed petitioner’s appeal because her attorney had failed to file an opening brief. Petitioner’s

attorney did not notify petitioner that she had failed to file an opening brief or that her appeal had

been dismissed.

On October 18, 2005, ICE officers arrested petitioner at her place of employment. On

October 20, 2005, following her apprehension by ICE, petitioner filed an emergency motion to

reinstate her petition for review with the Ninth Circuit, and requested a stay of removal. The

same day, the Ninth Circuit granted petitioner’s motion for stay of removal and reinstated her

petition for review. (Dkt. #1, Ex. 1). Petitioner’s appeal remains pending with the Ninth Circuit.

On October 26, 2005, petitioner submitted a written request to ICE Field Office Director

A. Neil Clark that she be released from custody on her own recognizance. (Dkt. #9, Ex. 11). On

November 3, 2005, Mr. Clark denied petitioner’s request for release, taking the position that

petitioner is a flight risk and a danger to the community. Mr. Clark stated that,

Ms. Del Toro’s habitual disregard for the law and the history of subterfuge provides

no assurance that she will comply with the conditions of release and she poses a

significant flight risk. Moreover, her criminal record relating to Heroin trafficking

clearly evidences her danger to the community. For these reasons, Ms. Del Toro will

not be released.

(Dkt. #9, Ex. 12). 

On November 9, 2005, petitioner submitted the instant habeas petition and motion for

TRO. (Dkt. #1 and #2). The Court determined that petitioner had not demonstrated, as required

by Rule 65(b), that she would suffer immediate and irreparable injury, loss, or damage before

respondents could be heard in opposition. Accordingly, the Court construed petitioner’s motion

as a preliminary injunction, rather than as one for TRO, and directed respondents to file a

response. (Dkt. #3).

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REPORT AND RECOMMENDATION

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III. DISCUSSION

A. Preliminary Injunction Standard.

The basic function of a preliminary injunction is to preserve the status quo ante litem

pending a determination of the action on the merits. Los Angeles Memorial Coliseum Comm'n

v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). In determining whether to

grant a temporary restraining order or a preliminary injunction, the Ninth Circuit considers: (1)

the likelihood of success on the merits; (2) the possibility of irreparable injury to a plaintiff if an

injunction is not granted; (3) the extent to which the balance of hardships favor plaintiff; and (4)

whether the public interest will be advanced by the injunction. See, e.g., Los Angeles Mem’l

Coliseum Comm’n, 634 F.2d at 1200. The analysis is often compressed into a single continuum

where the required showing of merit varies inversely with the showing of irreparable harm. See

Prudential Real Estate Affiliates, Inc. v. PRP Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). The

moving party may meet its burden by demonstrating either: (1) a probability of success on the

merits and the possibility of irreparable injury; or (2) that serious legal questions are raised and

the balance of hardship tips sharply in petitioner’s favor. Los Angeles Mem’l Coliseum Comm’n,

634 F.2d at 1201. 

Respondents argue that petitioner seeks not to preserve the status quo – her present

detention – but to change it, by compelling ICE to release her from custody notwithstanding its

determination that she should remain in custody. (Dkt. #9 at 7). Respondents argue that

petitioner actually seeks a mandatory preliminary injunction that goes well beyond maintaining

the status quo pendente lite, and thus the court should be extremely cautious about issuing a

preliminary injunction and should not grant relief unless the facts and the law clearly favor the

petitioner. Committee of Central American Refugees v. Immigration and Naturalization Serv.,

795 F.2d 1434, 1441 (9th Cir. 1986).

Petitioner’s order of removal became administratively final on October 1, 2002, by virtue

of the BIA’s summary affirmance of the IJ’s January 16, 2002 decision. Although she initially

sought review of the BIA’s decision by the Ninth Circuit, her appeal was dismissed on March

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REPORT AND RECOMMENDATION

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10, 2004. On October 18, 2005, ICE arrested petitioner pursuant to a final order of removal, and

on November 3, 2005, ICE denied petitioner’s request for release from detention. On November

9, 2005, petitioner filed the instant action seeking an injunction to compel ICE to release her

from detention, or, in the alternative, to compel an IJ to hold an individualized bond hearing.

Accordingly, an injunction would not maintain the status quo. Instead, it would command

respondents to take affirmative action. The Court therefore concludes that petitioner seeks a

mandatory injunction, and her request is subject to a higher degree of scrutiny because such relief

is “particularly disfavored.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994)(citing

Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1976)).

B. Subject Matter Jurisdiction.

As a preliminary matter, the parties dispute the statutory provision under which petitioner

is held. Respondents argue that petitioner wrongly assumes that the basis for her detention is

INA § 236, 8 U.S.C. § 1226, which governs “pre-removal” detention. Respondents assert that

INA § 241, 8 U.S.C. § 1231, which governs “post-order” detention, is applicable because

petitioner allowed her Ninth Circuit appeal to lapse, leading to dismissal on March 10, 2004.

According to respondents, the “removal period” had begun despite the reinstatement of her

petition for review and stay of removal by the Ninth Circuit, and therefore, petitioner’s custody

is under the authority of INA § 241. Petitioner contends that because she appealed the BIA’s

decision to the Ninth Circuit, and because the Ninth Circuit issued a stay of her removal, her

detention is governed by INA § 236.

INA § 241(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.

8 U.S.C. § 1231(a)(1)(B)(emphasis added). 

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This Court has previously held that an alien is not subject to INA § 241 until the removal

period begins. Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1224 (W.D. Wash. 2004). This

Court recognized “that courts have issued published decisions that reach different conclusions

regarding whether detention shifts from INA § 236 to INA § 241 when the order of removal

becomes ‘final’ or rather when the ‘removal period begins.’” Id. at 1223 (citing De La Teja v.

United States, 321 F.3d 1357, 1362-63 (11th Cir. 2003); Clavis v. Ashcroft, 281 F. Supp. 2d 490,

493 (E.D.N.Y. 2003); Milbin v. Ashcroft, 293 F. Supp. 2d 158, 161 (D. Conn. 2003)). This

Court concluded that the removal period begins on the latest of the following: the “date the order

of removal becomes administratively final” or “[i]f 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.” INA §

241(a)(1)(B). Accordingly, where an alien’s removal order has been stayed by the Ninth Circuit

pending its review of the BIA’s decision, the “removal period” has not yet commenced, and the

alien is detained pursuant to INA § 236. Id. at 1224.

Respondents point out and petitioner acknowledges, however, that unlike Quezada-Bucio,

the Ninth Circuit’s initial stay of removal ended as a result of the dismissal of petitioner’s appeal,

and the stay of removal was reinstated when petitioner’s appeal was reinstated. Respondents

argue that the removal period had begun but was suspended pursuant to INA § 241(a)(1)(C).

INA § 241(a)(1)(C) provides that:

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). According to respondents, petitioner’s detention is controlled by §

241, not § 236.

Owing to deficiencies in the text of the statute, petitioner does not fall squarely into either

INA § 236 or INA § 241. In any event, the Court need not reach the merits of whether petitioner

is detained under § 236 or § 241 because the Court retains habeas jurisdiction under either

provision to review challenges to detention arising from statutory or constitutional violations.

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“Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and

except as provided in subparagraph (D), and regardless of whether the judgment, decision, or

action is made in removal proceedings, no court shall have jurisdiction to review – . . . (ii) any

other decision or action of the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this subsection to be in the discretion of the Attorney

General or the Department of Homeland Security . . .” INA § 242(a)(2)(B)(ii), 8 U.S.C. §

1252(a)(2)(B)(ii).

REPORT AND RECOMMENDATION

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(Dkt. #9 at 14); see Zadvydas v. Davis, 533 U.S. 678, 688, 121 S. Ct. 2491, 150 L. Ed. 2d 653

(2001)(holding that habeas proceedings remain available as a forum for statutory and

constitutional challenges to post-removal period detention); Quezada-Bucio, 317 F. Supp. 2d at

1227 (holding that INA § 236 does not bar habeas review of statutory or constitutional challenges

to detention)(citing Demore v. Kim, 538 U.S. 510, 123 S. Ct. 1708, 155 L. Ed. 2d 724 (2003)).

Respondents argue that this Court lacks jurisdiction because the discretionary decision to detain

petitioner without bond is not subject to judicial review under INA § 242(a)(2)(B)(ii), 8 U.S.C.

§ 1252(a)(2)(B)(ii).2

 However, petitioner does not seek review of the Attorney General’s

exercise of discretion, but raises a constitutional challenge to her continued detention by the

Attorney General without a bail hearing. See id. Accordingly, the Court retains jurisdiction to

review petitioner’s constitutional claim that she is entitled as a matter of due process to a bond

hearing by a neutral adjudicator. 

C. Procedural Due Process.

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

a neutral adjudicator, such as this Court or an Immigration Judge. In this case, petitioner has not

had a bond hearing before a neutral adjudicator. Rather, the ICE Field Office Director, at

petitioner’s request, issued a written determination denying petitioner’s request for release.

Petitioner argues that the facts in this case demonstrate the need for a neutral adjudicator, rather

than the official whose duty it is to remove petitioner from the United States.

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

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

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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 by the ICE Field Office Director, at which she can attempt to show that

she does not pose a flight risk or a danger to the community. 

IV. CONCLUSION

For the foregoing reasons, I find that petitioner’s case raises serious legal questions and

the balance of hardship tips sharply in petitioner’s favor. Los Angeles Mem’l Coliseum Comm’n,

634 F.2d at 1201. Accordingly, I recommend that petitioner’s motion for preliminary injunction

(Dkt. #2) be GRANTED. A proposed Order accompanies this Report and Recommendation.

DATED this 3rd day of March, 2006.

AMONICA J. BENTON

United States Magistrate Judge

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