1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

FAYEZ AL-BASSREI,

Petitioner,

v.

A. NEIL CLARK, et al.,

Respondents.

CASE NO. C06-508-MJP

REPORT AND

RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Fayez Al-Bassrei is a native and citizen of Saudi Arabia who is currently in the

custody of the U.S. Immigration and Customs Enforcement (“ICE”). On April 6, 2006, he filed,

pro se, a Petition for Writ of Habeas Corpus under 8 U.S.C. § 2241, which challenges the

lawfulness of his continued detention pursuant to the mandatory detention provision of the

Immigration and Nationality Act (“INA”), Section 236(c). (Dkt. #4). Respondents have moved

to dismiss, arguing that petitioner is properly detained not under INA § 236(c), but under INA §

241(a)(1)(C), which allows for continued detention at the discretion of the Attorney General after

an administratively final order of removal. (Dkt. #9). 

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

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 1 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

The record indicates that petitioner self-deported on September 28, 1993. (Dkt. #9, Ex.

A). It is unclear from the record why petitioner was subsequently admitted to the United States

approximately three weeks after the issuance of the September 29, 1993, deportation order.

REPORT AND RECOMMENDATION

PAGE – 2

(Dkt. #4) be GRANTED and that respondents’ cross-motion to dismiss (Dkt. #9) be DENIED.

II. BACKGROUND AND PROCEDURAL HISTORY

On June 23, 1988, petitioner was convicted in the Circuit Court for the State of Oregon for

Lane County of the offense of Contributing to the Sexual Delinquency of a Minor, in violation of

the Oregon Revised Statute 163.435. (Dkt. #10 at 153). Petitioner was ordered to pay a fine and

was placed on probation for two years. Id.

Petitioner was subsequently placed in deportation proceedings in the early 1990's. On

September 29, 1993, petitioner failed to appear for his deportation hearing in Portland, Oregon.

(Dkt. #10 at 151). The Immigration Judge (“IJ”) issued an Order of Deportation, ordering

petitioner deported from the United States to Saudi Arabia. Id. The deportation order noted that

petitioner’s counsel was present, but that petitioner had failed to appear, and that “I find that

[petitioner] has abandoned any and all claim(s) for relief from deportation/exclusion.” Id.

Petitioner’s counsel reserved appeal to the Board of Immigration Appeals (“BIA”). Id.

On October 19, 1993, approximately three weeks after the deportation order was entered,

petitioner was admitted to the United States at Chicago, Illinois, as a non-immigrant visitor with

authorization to remain in the United States for a temporary period not to exceed six months.1

(Dkt. #10 at 177, 253). Petitioner did not depart.

On March 6, 2000, the BIA issued a decision affirming the IJ’s 1993 deportation order and

denying petitioner the privilege of voluntary departure. (Dkt. #10 at 152). 

On January 24, 2002, the former Immigration and Naturalization Service (“INS”) issued a

Notice to Appear, placing petitioner in removal proceedings and charging petitioner with being

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 2 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 3

removable under INA § 237(a)(1)(B), for remaining in the United States longer than permitted, and

under INA § 237(a)(1)(A), for being inadmissable at the time of entry due to his conviction of a

crime involving moral turpitude. (Dkt. #10 at 253-54). 

On February 15, 2002, petitioner married Miranda Louise Nyseth, a United States citizen.

(Dkt. #10 at 192). On February 21, 2002, Ms. Nyseth filed an I-130 Petition for Alien Relative on

petitioner’s behalf, seeking reclassification of petitioner as her immediate relative for immigration

purposes. (Dkt. #10 at 175). 

On March 28, 2002, the INS filed an additional charge of removability, alleging that

petitioner was removable under INA § 237(a)(2)(A)(iii), for having been convicted of an aggravated

felony as defined in INA § 101(a)(43)(A). (Dkt. #10 at 212-13).

On June 10, 2002, the I-130 petition filed by Ms. Nyseth was approved. Id. Two months

later, on August 7, 2002, Ms. Nyseth submitted a letter to the INS requesting that the I-130 petition

be withdrawn. (Dkt. #10 at 166). Because of Ms. Nyseth’s withdrawal of the I-130 petition, the

I-130 approval was automatically revoked pursuant to 8 C.F.R. § 205.1(a)(I)(A). (Dkt. #10 at

167). Petitioner and Ms. Nyseth subsequently reconciled, and Ms. Nyseth submitted a Motion to

Reopen on November 8, 2002, and a second I-130 Petition for Alien Relative on November 11,

2002. (Dkt. #10 at 21, 215).

On January 10, 2003, prior to the individual calendar hearing, petitioner filed a motion to

continue the hearing because neither the motion to reopen nor the I-130 petition had been

adjudicated. (Dkt. #10 at 215). The IJ denied petitioner’s motion for continuance and the hearing

occurred as scheduled on January 10, 2003. (Dkt. #10 at 218). With no alternative application for

relief from removal, the IJ found petitioner removable as charged and ordered him removed from

the United States to Saudi Arabia. (Dkt. #10 at 62). On January 23, 2003, petitioner appealed the

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 3 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 4

IJ’s decision denying his motion for continuance to the BIA. (Dkt. #10 at 47). 

On June 18, 2003, Ms. Nyseth submitted a letter to the INS requesting that the second I-130

petition be withdrawn, explaining that she had obtained a restraining order against petitioner and

had filed for a divorce. (Dkt. #10 at 19-20). 

On December 31, 2003, the BIA dismissed petitioner’s appeal and denied his motion to

remand. (Dkt. #10 at 2-3). The BIA noted that petitioner “is only entitled to relief from an

Immigration Judge’s erroneous denial of a continuance if the [petitioner] establishes that he was

prejudiced by the error.” (Dkt. #10 at 3). The BIA found that petitioner had failed to establish that

he was prejudiced by the IJ’s decision to deny the continuance because petitioner’s wife had once

again withdrawn the second visa petition. Id.

On January 16, 2004, petitioner filed a Petition for Review and a motion for stay of removal

with the Ninth Circuit Court of Appeals. (Dkt. #9 at 7). On February 25, 2005, the Ninth Circuit

dismissed the petition for lack of jurisdiction. On March 8, 2005, petitioner was arrested by United

States Immigration and Customs Enforcement (“ICE”) and has been detained since that date.

On March 30, 2005, petitioner filed a Petition for Writ of Habeas Corpus in the United

States District Court for the Western District of Washington. Case No. C05-501-TSZ-MAT, Dkt.

#1. On August 9, 2005, the case was transferred to the Ninth Circuit as a Petition for Review

pursuant to Section 106(c) of the REAL ID Act of 2005, H.R. 1268, 109th Cong. (2005)(enacted),

Pub. L. No. 109-13, Div. B, 119 Stat. 231 (“REAL ID Act”). Case No. C05-501-TSZ-MAT, Dkt.

#22. The Ninth Circuit subsequently entered a stay of removal pendente lite. Petitioner’s petition

remains pending in the Ninth Circuit.

In October 2005, ICE conducted a custody review of petitioner’s case. (Dkt. #9, Ex. A).

By letter dated October 14, 2005, ICE Field Office Director A. Neil Clark declined to release

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 4 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 5

petitioner, stating that, “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 remain in the custody of ICE pending the result of your appeal before the

Ninth Circuit Court of Appeals.” Id.

On April 6, 2006, petitioner filed the instant habeas petition, challenging his continued

detention. (Dkt. #4). On May 18, 2006, respondents filed a Return Memorandum and CrossMotion to Dismiss. (Dkt. #9). Petitioner filed his response on June 2, 2006. (Dkt. #11).

Respondents filed their reply on June 9, 2006. (Dkt. #12). The petition and cross-motion to dismiss

are now ready for review.

III. DISCUSSION

A. Detention Provisions

Petitioner argues that he is improperly detained under the mandatory detention provision of

INA § 236(c), 8 U.S.C. § 1226(c), which provides for mandatory detention without bond. (Dkt.

#4 at 8). That statute states, in part, as follows: 

The Attorney General shall take into custody any alien who . . .

(B) is deportable by reason of having committed any offense covered in section

237(a)(2)

. . .

when the alien is released, without regard to whether the alien is released on

parole, supervised release, or probation, and without regard to whether the alien

may be arrested or imprisoned again for the same offense.

INA § 236(c), 8 U.S.C. § 1226(c). “Petitioner argues that the mandatory detention provision of

INA § 236(c) should not be retroactively applied to him, because his removal proceedings were

initiated before the effective date of the statute, October 9, 1998, and 2) § 1226(c) violates the due

process and equal protection clauses of the Fifth Amendment.” (Dkt. #4 at 8). Petitioner further

argues that he is not subject to mandatory detention under INA § 236(c) because he was not taken

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 5 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 6

into immigration custody until nineteen years after his criminal offense ended. (Dkt. #4 at 17).

According to petitioner, he was not detained when he was released from state custody as required

by the express language of the statute. Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1231

(W.D. Wash. 2004)(holding that “the mandatory detention statute, INA § 236(c), does not apply

to aliens who have been taken into immigration custody several months or years after they have

been released from state custody”). Petitioner contends that he is entitled to release on bond

because he is not a flight risk or a danger to the community. (Dkt. #11 at 8).

Respondents argue that petitioner is properly detained not under INA § 236(c), but under

INA § 241(a)(1)(C), which allows for continued detention at the discretion of the Attorney General

after an administratively final order of removal. (Dkt. #9). Respondents argue that once an

administratively final order of removal has been entered, detention shifts from INA § 236, 8 U.S.C.

§ 1226, to INA § 241(a), 8 U.S.C. § 1231(a). Respondents contend that petitioner’s removal

period has, in fact, begun because his order of removal is administratively final, and he is therefore

being held under INA § 241. (Dkt. #9 at 8). Respondents note that they do not contend that

petitioner is subject to mandatory detention. Rather, respondents state that petitioner is eligible for

release on bond, but that ICE has decided to exercise its discretion and lawfully deny petitioner

release. (Dkt. #12 at 5). 

INA § 236 provides the framework for the arrest, detention, and release of aliens in removal

proceedings. INA § 236, 8 U.S.C. § 1226. Once removal proceedings have been completed,

detention and release of the alien shifts to INA § 241, 8 U.S.C. § 1231. The determination of when

an alien becomes subject to detention under Section 241 rather than Section 236 is governed by

Section 241(a)(1). Section 241(a)(1)(B) provides:

The removal period begins on the latest of the following:

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 6 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 7

(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). Accordingly, under the plain language of INA §

241(a)(1)(B)(ii), if a judicial court stays an alien’s removal pending judicial review, the removal

period does not begin until that court has issued a final order, and the alien continues to be detained

under Section 236. See Quezada-Bucio, 317 F. Supp. 2d at 1224 (holding that the “removal

period” begins on the latest of the following: the date the order of removal becomes administratively

final, or, 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.). Here, the Ninth Circuit has issued a stay of removal

pending its review of petitioner’s administrative removal order. “Because Petitioner’s removal

order has been stayed by the Ninth Circuit pending its review of the BIA decision, the ‘removal

period’ has not yet commenced, and Petitioner therefore is detained pursuant to INA § 236.”

Quezada-Bucio, 317 F. Supp 2d at 1224. 

Respondents cite one unpublished decision from this Court and one decision from another

jurisdiction 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, Dkt. #33;

Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002). However, the Court is persuaded

by other well-reasoned authority, including a more recent published decision from this Court,

indicating that 236 (the pre-removal-order provision) applies to petitioner. See Quezada-Bucio v.

Ridge, 317 F. Supp. 2d at 1224 (holding that the “removal period” begins on the latest of the

following: the date the order of removal becomes administratively final, or, 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

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 7 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

PAGE – 8

final order.); see also Morena v. Gonzales, 2005 WL 3277995, *3-4 (M.D. Penn. 2005); Wang v.

Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003); Clavis v. Ashcroft, 281 F. Supp. 2d 490, 493

(E.D.N.Y. 2003)(“Because the Court entered a temporary stay of deportation, up to this point

petitioner has remained in INS custody pursuant to Section 236.”); Milbin v. Ashcroft, 293 F. Supp.

2d 158, 161 (D. Conn. 2003)(“Until this decision is filed, Milbin continues to be subject to

mandatory detention under § 236(c), as this Court’s stay order . . . remains in effect.”). The Court

concludes that petitioner is being held pursuant to INA § 236(a), and that his removal period has

not yet begun. Because petitioner is being held pursuant to INA § 236(a), he is entitled to an

individualized bond hearing pursuant to the general release terms of INA § 236(a).

IV. CONCLUSION

For the foregoing reasons, I recommend that petitioner’s habeas petition be GRANTED, and

that respondents’ cross-motion to dismiss be DENIED. A proposed Order accompanies this Report

and Recommendation.

DATED this 1st day of August, 2006.

s/ James P. Donohue 

United States Magistrate Judge

Case 2:06-cv-00508-MJP Document 13 Filed 08/02/06 Page 8 of 8