At this stage, and on the issues as briefed,’ T decline to dismiss Counts Six through Ten.
Upon a request by the defendants, T will enter a scheduling order under Fed. R. Civ. Proc. 16,
which will set a deadline for the filing of a motion for class relief.

T dismiss Counts Onc and Three for mootness. I decline to issue the writ on Counts Two,

Four and Five. I deny the motion to dismiss Counts Six through Ten.

ENTER:
\\un Ba)
mes B, Zagel Cc) a)

United States Distnct Judge

pate:_)6 Gunsh 200

*Briefing by both sides was, correctly, conducted on the premise that the individual claims
would or might survive. Thai premisc may no longer be valid and the parties may wish to recast
their arguments. Morcover, the three petitioners whose claims arc denied may, fairly soon or
even now, find themselves in a position where the barriers to their claims no longer exist. Both
petitioners and respondents are entitled to a chance to determine from their own perspectives
what they ought to do now because, while these petitioners may or may not leave this legal scene,
the issues will not.

13



This system is alleged in practice to compound problems. Detainees are not given
adequate notice required by regulations, file review dates are misstated and failure to cooperate
disqualifies persons for release even when the country of origin is one for which it is impossible
to obtain travel documents. A class action is said to be justified by the high proportion of
indigent detainees whose individual petitions for a writ cannot be effectively prosecuted, and
there is no formal administrative review which a pro se detainee can exhaust which might give
timely relief. Judging solely by the dockct in this Court, the class would be numerous.

1.
The Petitioners

The individual petitioners were and are:

1. A stateless Palestinian, Jalal Hmaidan, born in Kuwait and holding a Jordanian
passport, but now said to be a subject of neither nation. He has been living here as a lawful
resident for over 25 years and has family here. He was convicted of aggravated discharge of a
firearm and possession of a controlled substance with intent to deliver. He received multiple year
sentences for both offenses. He has ten arrests and five convictions. Preferring Jordan or Kuwait
to jail, he says he has tried to get travel documents, but the INS says he never identified himself
as a Stateless person, but rather, as a Jordanian. From the INS’s perspective, he did a slapdash
job of filling out the Jordanian request form for travel documents and little else. In any event, the
INS was apparently right about his removal, because he now has papers to go to Jordan, and he is
dismissed from the casc.

2. An Algerian, Mohammed Aidouni, who came here as a stowaway and remained

illegally. He was convicted of robbery and weapons charges and detained for a period of years,



Applying a standard of revicw to the record is not what is needed to resolve the disputes
involving Pongphrachanxay and Den Son. They assert that a bond requirement is beyond the
authority of the INS, and they do argue that petitioners are clearly the kinds of individual for
whom a lawfully authorized bond could never reasonably be requited. They also assert that the
INS, if it has the power to require bond, lacks the power to require a bond of the sort it did in
these cases. The regulation authorizes the requirement to post a bond. 8 C.F.R. §241.5 (b)
(2002). Zadvydas scems quite clearly to permit the imposition of supervision with conditions,
but says nothing about whether posting a bond is an appropriate condition, And there is some
reason to think that bonds are not what the Court had in mind because it spoke of the power of
the Government to “incarcerate [\hose undet removal orders]...for violations of those conditions.”
533 U.S. at 695, Posting a money bond is, for the most part, a pre-condition to release and not a
command to do or not do something in the future which, if not obcyed, may result in jailing.

The statute in question, 6 U.S.C. §1231(a)(3), does not contain an explicit authorization
ofa money bond. It simply says that alicns like petitioners shall be subject to supervision under
regulations prescribed by the Attorncy General, and then it mandates that three specific
provisions (none of which mention money bonds) for these regulations and adds a kind of “catch-
all” which requires the alien “to obey reasonable written restrictions on the alien’s conduct or
activities that the Attorney General prescribes for the alien.”

The Attorney General is cntitled to deference in his interpretation of the statute,
particularly where the interpretation fills a gap in the statute. Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S, 837 (1984). It is true that there are provisions for moncy

bonds scattered throughout the statutes governing aliens, but it is too hard for me to read the


the U.S. in prison. The INS has had him since mid-2001. He cannot be returned to Vietnam, and
he too was given release upon the posting of a bond of $25,000.

The respondents say that the conclusions of the INS ate valid under regulations which are
consistent with the law.

After Zadvydas, the Attorney General issucd regulations which, triggered by the end of
the six-month period, allow the detainee to petition the INS for release on the ground that there is
no significant likelihood of repatriation. The detainee has to show this, usually by
documentation, and he or she also must show that he or she has cooperated in the process of
obtaining travel documents. According to Zadvydas, “once the alicn provides good reason to
believe that there is no significant likelihood of removal in the foreseeable future, the
Government must respond with evidence sufficient to rebut that showing.” 533 U.S. at 701.

Turning lo the individual cases, | consider the standard of review for overturning the
determinations made by the INS. There is one deferential test which approves “facially
jegitimate and bona fide” bases for decision. Fiallo v. Bell, 430 U.S. 787 (1977). Another less
deferential test is “abuse of discretion.” INS y. Jong Ha Wang, 450 U.S. 139 (1981). The
context of both of these decisions leads me to doubt that the Zadvydas Court had either in mind.
A third standard is whether the decision is supported by substantial evidence (sometimes thought
of as a kind of directed verdict standard in which the judgment stands unless no reasonable fact-
finder would have reached that judgment). INS v. Elias-Zacarias, 502 U.S. 478 (1992). Reading

what can be no more than runes in Zadvydas,’ | think this last standard applies if one substitutes

? Zadvydas said, “We recognize, as the Government points out, thal review must take
appropriate account of the greater immigration-related expertise of the Executive Branch, of the
scrious administrative needs and concerns inherent in the necessarily extensive INS efforts to
enforce this complex statute and the Nation’s need to ‘speak with one voice’ in immigration

6



in part because of the time it took to adjudicate his unsuccessful attempt to avoid retum to
Algeria under the Convention Against Torture. While Algeria is not readily issuing travel
documents these days, the INS says he failed to tell an Algerian official that hc had a mother and
three brothers living in Algeria (at least initially), and said he had no family in that country. The
INS says that he has not cooperated to secure his removal.

3. An Iraqi, Maithan Alzehrani, who entered this country in 1993 as a refugee fearing
persecution. He became a Lawful Permanent Resident. Ie was convicted in 1997 for unlawful
restraint and domestic battcry and again in 1998 for criminal sexual assault. [He was the subject
of an explicit decision to detain him on grounds that he had no plan on where to live or how to
support himsel!, he had displayed an escalating pattern of violence, and he failed to demonstrate
he is no longer a threat to society. Traq is, and has been for a while, a very difficult country to
which to remove a detainee, so the TNS granted release on bond conditioned on his being ina
sexual offender treatment program and living with a family member or friend in Chicago. The
INS has now removed the bond requirement, and he too is effectively gone from this case.

4, A Laotian, Keovongsack Pongphrachanxay, who entered from a refugee camp in
Thailand in 1981. By 1997, he had acquired one conviction for Armed Robbery and another for
Robbery and sentences of multiple years duration. Laos does not accept deportees. He has been
offered release, bul only upon posting a $20,000 bond, which he cannot do. The power of the
government to require a bond is denied by petitioner.

5. A Vietnamese, Den Son, who is Amerasian by ethnicity who entered this country in

1991 to look for his father whom he believes to have been a soldier in Victnam. Less than a year

after his entry, he was convicted of Home Invasion and served a good part of his twenty years in



and the name of his brother. What is left for the INS, argues Aidouni, is that Algeria has not
actually said they will not take him, and this is not enough.

Ido not agree that this is all that is left for Aidouni. On the facis before the INS and me,
there is evidence which could Icad a rcasonable fact finder to believe that (1) Aidouni has a far
greater desire to remain here undetained than he does to return to Algeria; (2) his actions show
that he is not cooperating as fully as he could to procure his repatriation; and (3) the lack of such
cooperation is significant. And, in turn, the INS is making significant efforts to assist his
repatriation, and nothing in the response of Algeria supports the conclusion today that his
repatriation is not in the reasonably foreseeable future.

A court can consider ongoing cfforts by INS or others to repatriate an individual in
reviewing the question of whether removal is likely in the reasonably foreseeable future. Khan y.
Fasano, 194 F, Supp.2d 1134, 1135 (S.D. Cal. 2001). There is no evidence here or before the
INS that shows that such efforts will be futile. Were it shown that Algeria has steadfastly refused
travel documents in all, or almost all, cases, which might be known to the INS, but not referred to
in the record before me, the outcome might be different. I agree that efforts to repatriate Aidouni
could have been more vigorous and seem only to have become more vigorous after he filed the
petition. And I must bear in mind that “as the period of prior post-removal confinement grows,
what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Zadvydas
533 U.S. at 701. But] am unable to conclude that respondents could not decide, on these facts,
that there is a significant likelihood of removal in the reasonably foreseeable future. Were a new
petition filed just a bit later, with some additional data on removals to Algcria, the result here or

before the INS might be different.



Minute Unter Form (967),

UZ

United States District Court, Northern District of IHinois

[ro Indge James B. Zagel Sitting Judge If Other

or Magistrate Judge than Assigned Judge

Heat NUMBER 02 C 5097 DATE 4/16/2003

V CASE JALAL HMADIAN, ET AL vs. JOHN ASHCROFT, ET AL
TITLE

[In the following box (a) indicate the purty filing the motion, e.g... plaintif¥, defendant, 3rc party plainUfl, and (b) state brielly the nature
of the motion being presented. |

MOTION:

DOCKET ENTRY:

(ty ao Filed motion of [ use listing in “Motion” box above.|

(2) oO Bricf in support of motion duc

Q) a Answer brief to motion due___. Reply to answer briefdue______

(4) C) Ruling/Hearing on. sul for at

(5) oO Status hearing|held/continued to} [set for‘re-set for] on set for _

(6) oO Pretrial conference[held/continued to] [set for/re-set for}on ss set for at

(7) o Trial[set for/re-set for]on at

(8) a [Bench/Jury trial] [Hearing] held/continned to at

(9) oO This case is dismissed [with/without] projudice and without costs|by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OOFRCP4(ay(t) OO FROPAI(a)(2)

(10) a [Other dockct entry] Defendant’s motion to dismiss is granted. The petition for a writ of

habeas corpus is denied.

dl) [For further detail see order attached to the origina] minute order. |

No notices required, advised in open court. Document

Number

‘No notices required, uintbes of gotices

dave

Notices mailed by judge’s statt,

Notified counsel by telephone

v | Docketing to mail notices.

vf | Mail 40 450 form.

yaad Lats
Copy to judge/magistrate judge. wuagg I

daly mused potieu
courtroom re

pw deputy's
initials

Date/time received in
cenural Clerk's Office



of indigence or of efforts to raise the money from others. This, despite the fact that the INS told
them they could assert inability to post bond and submit financial documents in support of this. It
has also told them that compliance with conditions of supervision for onc year will result in the
return of the bond money. Essentially, the petitioners have not taken the opportunity given them
to show inability to post the bond and therefore, have failed to exhaust administrative remedies
which is usually required in habeas cases filed by aliens in the custody of the INS. Arias v.
Rogers, 676 F.2d 1139 (7" Cir. 1982), The exhaustion requirement, which does not appear in the
statute, is a judicial graft, the sound purpose of which is to allow the consideration of habeas
relief on a more developed factual record without burdening the habeas court with the task of
presiding over the development of that record.

The petitioners question whether there is an administrative remedy to exhaust and, if there
is one, they say it is one recently rigged up in reaction to judicial challenges to the setting of
bonds. | accept the representation of the Attorney General that there is an administrative remedy.
Lalso agree with petitioners that it has been hastily devised to meet the challenges of cases like
this, but | do not think the petitioners are excused from using it. The national perspective on
control of aliens within our borders was profoundly altered in recent months, and the legal
landscape changed too with Zadvydas. It is not an indicia of bad-faith that the Attorney General
has had to scramble to meet legal and policy requirements that neither he nor his predecessors
had anticipated. In another context, the claim of an adequate administrative remedy made here
would be unconvincing. In this context, it is not. Under Zadvydas, however, the administrative
determination of the reasonableness of the amount of bond must, in the circumstances here, be
made quite quickly. A court faced with such a question can usually decide the matter within a

week or two.



statutory provision here as manifesting a delibcrate exclusion of money bonds. It is almost
always true, and it is true here, that catch-all provisions are implicit recognitions that gaps have
been left and are explicit grants of authority to fill those gaps. Yet, the explicit authority extends
to “restrictions on...conduct,” a phrase ihat docs not easily cover the posting of money bonds.
Nevertheless, posting a money bond is a “conduct or activit[y]” within the lexical ambit of the
statute, and | do not think the Attorney General exceeded his lawful reach in interpreting the
statute, his interpretation being reasonable and plainly, neither arbitrary nor capricious.’

The setting of the bonds in these cases is said to be the functional equivalent of
authorizing indefinite detention. Technically, the bonds have a one-year duration, but that
limitation takes effect only if the money is posted. Bonds in criminal cases often arc the
functional equivalent of detention too, but in the criminal case, pre-trial detention ends (one way
or the other) after trial which the defendant has a right to demand and receive within a fairly short
time. Here, there is no way for the detainee to take any action which will finally resolve the
question of his custody. He simply has to wait until the day, if that day ever comes, that another
nation decides to accept him or her. For this reason, I agree it is inconsistent with Zadvydas to
hold that the INS has the power to set a bond that the detaince is unable to post.*

The position of the INS is that ncither petitioner can challenge the amount of the bond at

this ime because they have not proven that they cannot post the bond, to wit, there is no evidence

5] am not presented here with the more difficult question of the requirement that one who
will never be repatriated must post a money bond which then stands for the rest of his or her life.
Tt is not presented on the facts of this case becausc the bonds arc remitted after twelve months of
compliance with conditions.

‘I do not know whether it would be unconstitutional for Congress to confer precisely this
power upon the Executive Branch, although Zadvydas suggests that it might be. 533 U.S. at 690.
Thave no reason to decide that question here.

10


the phrase “reasonable person possessing immigration-related expertise” for “reasonable fact-
finder.”

The INS says that Aidouni did not cooperate with the Algerian counselor official who
interviewed him. All he would provide is his name and the name of his attorney which, if true
(and it is not denied), would make it difficult for Algeria to verify his identity and approve his
repatriation, which became an issue in October 2001, when the removal order became final. INS
has undertaken its own cfforts at repatriation by asking this nation’s embassy in Algiers to assist
in establishing Aidouni’s identity. Aidouni correctly notes that the Algerian counselor’s
interview took place after the filing of his petition here and well after the six-month period of
presumptively reasonable detention passed. It is difficult to infer unwillingness to cooperate
when a detainee, who has filed a petition over repatriation and is represented by counsel, tells
anyone to talk to his lawyer about repatriation. Some of the information he could provide was in
the INS filcs since they wrote to his mother in Algeria in 1999, and immigration hearing
transcripts indicated that he had three brothers in Algeria and this is, in fact, part of the material
that the Embassy in Algeria is using to help get Aidouni into Algeria. The other pari was

provided by Aidouni’s attorncy in October 2002, which is the current whereabouts of his mother

matters...Bul we believe that courts can take appropriate account of such matters without
abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.”
533 U.S. at 700. Teall these words “runes” because they can be interpreted to mean that taking
“appropriate account” refers to a gencralized deference to the determination that detention may
be important as a matter of policy—and not any deference to the decision in any particular case.
Support for the idea that no deference is owed to any particular decision is found in other
language, e.g “the habeas court must ask whether the detention...cxceceds a period reasonably
necessary...[i]t should measure reasonableness...the habeas court should consider the risk...” 533
U.S. al 699-700, Looking at the structure of the opinion, my best guess is that taking account of
expertise means that decisions about individuals are entitled to some deference.

7



In response to the decision of the Supreme Court, petitioncrs say the Executive Branch
adopted procedures which forfend the relcase of those whom it has no authority to detain by
delaying the decision to release. The decision is made by a “faceless bureaucracy,” deadlines are
not set, hearings are not provided, impartial review is absent and decisions are not
administratively appealable.

The standard for releasc is that the detainec must show (I simplify here) that he or she is
unlikely to be removed in the foreseeable future, and also that he or she is a “non-violent” person.
The District Office makes a yes or no determination. If the answer is no, the alien may have the
Headquarters Post-order Detention Unit consider these questions again. It has no deadline, and
petitioners allege that it rarcly decides until six months of detention has passed. Therc is no
evidentiary hearing, In cases where the inability to remove is conceded by INS, but no other
cases, the decision 1o detain may be presented to an Immigration Judge, subject to review by the
Board of Immigration Appeals. Where the decision by the INS is based on the finding that there
is still a possibility of removal, or that the detainee has not cooperated in securing his own return
(for example, by refusing to provide information which would allow the country of origin to

determine that the detainee is their citizen or subject), then that is the end of the matter.

patent repeat offender citizen felon has to be released when his sentence is completed no matter
what harm is likely to cnsue. Essentially, this is the kind of argument made by petitioners who,
wisely, do not attempt to glorify the petitioners as omamenis to this nation. Their position is
quite akin to saying “regardless of whether the convict will certainly con widows out of their life
savings, the sentence is cxpired and the ccll doors have to bc opened.” T note too that these
petitioners (and the putative class) do not include those whose detention is said to be justified
under regulations which permit detention for aliens who have highly contagious diseases, who
are “especially dangerous,” whose release would have serious adverse foreign policy
consequences or whosc release would create risks of terrorism or breach national security.

3



whcre there is no reasonable likelihood of removing them from the country is beyond the

statutory power of the INS or the Attorney General. The Court said:
“[I]nterpreting the statute to avoid a serious constitutional threat, we conclude that once
removal is no longer reasonably foreseeable, continued detention is no longer authorized
by statute....[In habeas cases the] court must ask whether the detention in question
exceeds a period reasonably necessary to sccure removal. It should measure
reasonableness primarily in terms of the statute’s basic purpose, name assuring the alicn’s
presence ai the moment of removal. Thus, if removal is not reasonably foreseeable, the
court should hold continued detention unreasonable and no longer authorized by statute.
In that case, of course, the alien’s release may and should be conditioned on any of the
various forms of supervised release that are appropriate in the circumstances, and the
alien may no doubt be returned to custody upon a violation of those conditions...And if
removal is reasonably foreseeable, the habeas court should consider the risk of the alien’s
committing further crimes as a factor potentially justifying confinement within that
reasonable removal penod.,”

533 U.S. at 699-700. It is fair to say that the Attorney General was dismayed by the decision of

the Supreme Court, which had resolved a split among the Court of Appeals. He expressed

concerns for public safety because the detainees are those who have been convicted of crimes in

this country.’

‘One could argue that the practice required by Zadvydas is perverse. If an alien is likcly
to be removed, one can consider the fact that he or she is a repeat offender in deciding to confine
an habitual thief until removal. Ifthe alien won’t be removed, then he or she has to be rcleased
no matter how likely to offend, as long as that alien is likely to show up if his or her native
country eventually decides to let the wanderer return. Yet the law has many such provisions—a

2



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JALAL HMAIDAN, MOHAMMED
AIDOUNI, MAITHAN ALZEHRANI,
KEOVONGSACK
PONGPHRACHANXAY, and DEN SON,
No. 02 C 5097
Petitioners, Judge James B. Zagel

Vv.

JOHN ASHCROFT, Attorney General,
BRIAN R. PERRYMAN, as District pote
Director of the Immigration & Naturalization he ‘
Service, IMMIGRATION & APR «8 2903
NATURALIZATION SERVICE, UNITED
STATES DEPARTMENT OF JUSTICE,

Respondents.
MEMORANDUM OPINION AND ORDER
A group of alicn persons in the custody of the Immigration and Naturalization

Service seek the writ of habeas corpus on behalf of themselves and on behalf of a class of
similarly situated persons. The claim here is not that the INS is acting outside the scope of its
regulations; rather, the regulations themselves are attacked as violating the due process clause of
our Constitution on their face and as applied. Also, it is contended that the rules and regulations
are arbitrary, capricious and outside the ambit of the law, and so stand in conflict with the
Administrative Procedures Act (“APA”),

The petitioners have all been ordered removed from this country, but the TNS is unable to
remove them to their countries of origin. In Zadvydas v. Davis, 533 U.S. 678 (2001), the

Supreme Court said a six-month period of detention was presumplively reasonable, All the

petitioners are detained for more than six months. Zadvydus also said that indctinite detention

4



i.
The Class

A purported class action is part of the petition before me. No motion for class
certification has been filed, but the government seeks to have the petition dismissed. Today
denial of certification would occur for the very reason that petitioners, having no present right to
the writ themselves, are inadequate class representatives.

The class action habeas corpus is a rare thing. Apart from the obvious reason that habeas
determinations arc quintessentially individual in nature, there is the fact that class habeas cases,
running as they do against governments, are always vulnerable to the ability of the plaintiff to
moot the case of every class rcpresentative by releasing thom. This is in contrast to a small stakes
consumer frand case where a representative plaintiff can always refuse scttlement. What the
petitioners (perhaps more precisely, their attorneys) want is the chance to have a court declare
that the INS must comply, regularly, with the time limits embodied in Zadvydas, and they suspect
that doing these cases one at a time will not work.

There may be other barriers as well to class certification, bul T cross those bridges when T
come to them.

T do not dismiss on the grounds that no claim has been stated. While the individual
petitioners here fall short of being able to press their claims today, the allegations of undue delay
and inadequate hearing procedures do present duc process claims. Jurisdiction is claimed to lie
under the APA. This is a dicey claim in light of Ardestani y. INS, 502 U.S, 129 (1991), and
Lalani v. Perryman, 105 F.3d 334 (7" Cir. 1997). One could argue that these post-removal order
operations are not deportation or removal proceedings and thus, outside the exemption from the

APA which Congress gave to the INS, but one could argue that they are.

12