Posted with Certificate of Service
Copied and pasted from a pdf file, here is the claim made by the government of the USA that its own federal courts may not release wrongfully detained immigrants unless they have been wrongfully detained at least six months.
Technically, the motion argues that Homeland Security enjoys the discretion to call immigrants “flight risks”; and so long as Homeland Security makes this claim, the court has no jurisdiction to intervene. The motion does not state a background assumption made by the Federal Magistrate and US Attorneys that the power to hold immigrant prisoners on such discretionay basis has been limited by previous court rulings to 180 days.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
Radi Hazahza, et al.,
Michael Chertoff, et al.,
No. 3:07-CV-0327-D (BF)
Referred to the U.S. Magistrate Judge
FEDERAL RESPONDENTS’ POST-HEARING SUBMISSION
In the March 29, 2007, hearing before the Court on Petitioner’s habeas corpus petition, the Federal Respondents argued that 8 U.S.C. § 1252(a)(2)(B)(ii) strips federal district courts of jurisdiction to review discretionary immigration decisions of the Attorney General where such discretion is specified in a statute, and thus the Court did not have jurisdiction to review the discretionary decision that Petitioners are a flight risk under 8 U.S.C. § 1231(a)(6). The Federal Respondents submit this post-hearing brief to
provide the Court and opposing counsel with the case law cited by the Government on this issue at the hearing.
* * *
Section 1252(a)(2)(B)(ii) provides that no court shall have jurisdiction to review “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .” 8 U.S.C. § 1252(a)(2)(B)(ii).1 The Fifth Circuit has held that § 1252(a)(2)(B)(ii) strips courts of
jurisdiction to review discretionary authority specified in a statute. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (ruling that courts retain jurisdiction to review discretionary decisions where discretion derived from regulations promulgated by Attorney General).
In this case, the Court does not have jurisdiction to review ICE’s discretionary determination that Petitioners were a flight risk under § 1231(a)(6), and thus could be detained beyond the 90-day removal period. Section 1231(a)(6) states that “[a]n alien
ordered removed . . . who has been determined by the Attorney General to be . . . unlikely to comply with the order of removal” may be detained beyond the removal period. 8 U.S.C. § 1231(a)(6) (emphasis added). Because this statute clearly grants discretion to the Attorney General to determine whether individuals, such as Petitioners, are flight risks, § 1252(a)(2)(B)(ii) strips this Court of jurisdiction to review this discretionary decision. See, e.g., Ghanem v. Upchurch, 2007 WL 666091, at *2 (5th Cir. Mar. 7, 2007) (affirming Judge McBryde’s decision that because statute governing revocation of a visa
grants discretion to Secretary of Homeland Security, § 1252(a)(2)(B)(ii) strips court of jurisdiction).[Note 2]
[Note 1] The phrase “this subchapter” refers to subchapter II of Chapter 1 12 of Title 8 of the United States Code, which includes §§ 1151-1381. Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006).
[Note 2] The Federal Respondents also contend that Petitioners cannot challenge ICE’s §1231(a)(6) determination by way of a habeas corpus petition, as habeas jurisdiction does not extend to review of discretionary determinations made by agencies, only pure questions of law. See Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir. 2003); Gallegos-Reyes
Respectfully submitted, RICHARD B. ROPER United States Attorney ____/s/ Stephen P. Fahey_______ STEPHEN P. FAHEY Assistant United States Attorney Illinois State Bar No. 6274893 U.S. Federal Building & Courthouse 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699 Telephone: 214.659.8600 Facsimile: 214.767.2916 Email: Steve.P.Fahey@usdoj.gov OF COUNSEL: JUDSON J. DAVIS U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security 8101 N. Stemmons Frwy. Dallas, Texas 75247 Telephone: 214.905.5779 Facsimile: 214.905.5593 ATTORNEYS FOR FEDERAL RESPONDENTS
CERTIFICATE OF SERVICE
I hereby certify that on March 29, 2007, I electronically filed the foregoing document with the clerk of court for the United States District Court for the Northern District of Texas, using the electronic case filing system of the court. The electronic case
filing system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means:
Joshua E. Bardavid
Theodore N. Cox
__/s/ Stephen P. Fahey______
Assistant United States Attorney