Bailey v. ICE Field Office Director

• Court: District Court, W.D. Washington
• Decided: August 20, 2020
• Docket: 2:20-cv-00023
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 OMAR M BAILEY, 9 Petitioner, Case No. C20-0023-TSZ-MAT 10 v. ORDER APPOINTING THE FEDERAL PUBLIC DEFENDER TO 11 ICE FIELD OFFICE DIRECTOR, REPRESENT PETITIONER 12 Respondent. 13

14 Petitioner, who has been subject to immigration detention under 8 U.S.C. § 15 1225(b)(1)(B)(ii) for nearly three years, is proceeding pro se in this 28 U.S.C. § 2241 habeas action 16 in which he seeks release or a bond hearing. Currently before the Court is Petitioner’s motion to 17 appoint counsel, which he filed at the Court’s invitation. (Dkt. 10; see also Dkt. 9 (7/21/2020 order 18 inviting Petitioner to seek appointment of counsel by filing application to proceed in forma 19 pauperis).) 20 The Court may appoint counsel for Petitioner if he is financially eligible and “the interests 21 of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Petitioner’s motion establishes his financial 22 eligibility. (See Dkt. 10.) The Court also concludes that the interests of justice require the 23 1 appointment of counsel because, as discussed below, this case presents complex issues that warrant 2 full briefing before the Court renders a decision. 3 Judges in this District, including the undersigned, have concluded that unreasonably 4 prolonged detention under § 1225(b) without a bond hearing violates due process. See Banda v.

5 McAllenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019) (adopting multi-factor test to determine 6 whether detention has become unreasonably prolonged, thus warranting a bond hearing). In this 7 case, however, the Government argues that because Petitioner is an arriving noncitizen under § 8 1225, due process is limited to the procedures Congress has provided, which do not include a bond 9 hearing. (See Dkt. 6 at 7-10 (citing, inter alia, Shaughnessy v. United States ex rel. Mezei, 345 US. 10 206, 212 (1953) (“whatever the procedure authorized by Congress is, it is due process as far as an 11 alien denied [initial] entry is concerned”); Barrera-Echavarria, 44 F.3d 1441, 1149 (9th Cir. 1995) 12 (en banc) (addressing pre-IIRIRA statute and holding that “excludable aliens have no procedural 13 due process rights in the admission process”)).) A district judge in Arizona recently considered 14 similar arguments, including the applicability of Barrera-Echavarria, and agreed with the

15 Government that due process does not require more for arriving noncitizens than is provided by 16 Congress. Ibarra-Perez v. Howard, --- F. Supp. 3d ----, 2020 WL 3440298 (D. Ariz. June 23, 17 2020). The Ibarra-Perez court noted that Banda did not consider Barrera-Echavarria or the effect 18 of a noncitizen’s status as an “arriving alien” on his or her due process rights. Indeed, the 19 Government in Banda did not argue that the petitioner’s status as an arriving noncitizen under § 20 1225 affected his rights. Given that the Government here asks the Court to depart from Banda, the 21 Court deems it in the interests of justice to appoint counsel to respond. 22 Based on the foregoing, the Court ORDERS: 23 1 (1) Petitioner’s motion to appoint counsel (Dkt. 10) is GRANTED. The Court 2 APPOINTS the Federal Public Defender to represent Petitioner in these proceedings. 3 (2) Within 21 days of the date of this Order, the Federal Public Defender shall file a 4 notice of appearance and inform the Court whether he intends to move to file an amended habeas

5 petition on Petitioner’s behalf or whether he will proceed on the current petition. 6 (3) If Petitioner elects to proceed on the current petition, the Government shall respond 7 to the petition within 21 days of the Federal Public Defender’s appearance. The Government may 8 refile its original return memorandum and motion to dismiss (Dkt. 6) or file a superseding return. 9 As with the original return, the Government shall note it on the Court’s calendar for the fourth 10 Friday after filing, and Petitioner shall respond by the Monday preceding the noting date. 11 (4) If Petitioner intends to file a motion for leave to amend, he must do so within 21 12 days of the Federal Public Defender’s appearance. 13 (5) The Clerk is directed to send copies of this order to Petitioner, the Federal Public 14 Defender, counsel for the Government, and the Honorable Thomas S. Zilly.

15 Dated this 20th day of August, 2020. 16 A 17 Mary Alice Theiler 18 United States Magistrate Judge

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