Shokeh v. Thompson

Page 865

369 F.3d 865

Mousa Elias Salameh SHOKEH, Petitioner-Appellant, v. Caryl THOMPSON; David Venturella; James W. Ziglar; Bureau of Immigration and Customs Enforcement; John Ashcroft, Respondents-Appellees.

No. 03-30859.

United States Court of Appeals, Fifth Circuit.

May 10, 2004.

Mousa Elias Salameh Shokeh, New Roads, LA, pro se.

Thomas Burton Thompson, Asst. U.S. Atty., Lafayette, LA, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Mousa Elias Salameh Shokeh ("Shokeh") appeals the district court's denial of his pro se 28 U.S.C. § 2241 habeas petition, arguing that the district court erred in holding that his post-removal-order release was permissibly conditioned on his posting $5,000 bond. Because we hold that the amount of a bond so imposed must be reasonable and "appropriate in the circumstances," and because it is uncertain whether the $5,000 bond was reasonable given Shokeh's circumstances, we reverse and remand for further findings on whether the $5,000 bond is reasonable.

I. FACTS AND PROCEEDINGS

Claiming Jordanian nationality, Shokeh was admitted to the United States at Newark, New Jersey, on November 27, 1995, as a conditional resident. On December 17, 1997, the INS¹ approved his request for removal of the conditional basis of his permanent resident status, thereby making him a lawful permanent resident.

On May 29, 2002, the INS issued a Notice to Appear charging Shokeh as removable, and on June 3, 2002, the INS took Shokeh into custody pursuant to an arrest warrant. At that time, the INS determined that he should be detained without bond.

On July 12, 2002, Shokeh appeared before an Immigration Judge ("IJ") for a bond redetermination hearing; the IJ denied Shokeh's request for a change in custody status. After several preliminary removal hearings, Shokeh appeared before the IJ for his merits hearing on September 24, 2002, and the IJ ordered him deported to Israel or, in the alternative, to Palestine. Both Shokeh and the INS waived their respective rights to appeal this decision of the IJ. Shokeh therefore became the subject of a final order of removal on September 24, 2002.

The INS unsuccessfully attempted to procure travel documents for Shokeh, and, on January 24, 2003, issued a decision to continue detention following file review. On February 13, 2003, Shokeh filed a § 2241 habeas petition arguing that his continued detention beyond six months following the date his removal order became final would violate his constitutional and statutory rights as set forth in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).²

On February 28, 2003, the INS issued its Release on Bond Notification for Shokeh. This notification authorizes Shokeh's release from custody under an order of supervision, pending removal, upon the posting of a $5,000 bond. The Release concedes that "removal does not appear reasonably foreseeable at this time," and does not state that Shokeh is a danger to the community.³ Shokeh has not posted bond and therefore remains in custody.

Shokeh filed a habeas petition challenging the imposition of bond as a condition of his release. The district court, citing 8 C.F.R. § 241.5,⁴ denied Shokeh's petition and dismissed it with prejudice, reasoning that bond is a permissible condition of supervised release. Shokeh timely filed a notice of appeal; this appeal follows.

II. JURISDICTION

This Court has jurisdiction to review a confined immigrant's application for a writ of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 312-13, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that "habeas jurisdiction under § 2241 was not repealed by ... [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 `IIRIRA']"). See also Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir.2003) (noting that "federal courts retain habeas jurisdiction to review statutory and constitutional claims"); Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.1999) (finding jurisdiction to hear a habeas challenge to a deportable immigrant's continued detention), overruled on other grounds by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

As in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), where the Supreme Court held that 8 U.S.C. § 1231 allows the Attorney General to confine a post-removal-order immigrant only for a reasonable period, Shokeh "challenge[s] the extent of the Attorney General's authority under the post-removal-order detention statute.... [T]he extent of that authority is not a matter of discretion." Zadvydas, 533 U.S. at 687, 121 S.Ct. 2491. "[T]he [post-removal-order statute] contain[s] an implicit `reasonable time' limitation, the application of which is subject to federal-court review." Id. at 682, 121 S.Ct. 2491.

The Government argues that this Court lacks jurisdiction because IIRIRA Section 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) (hereinafter "Section (B)(ii)"), is a "catch-all provision ensuring that [the jurisdiction-stripping] proscriptions implemented by Congress cover all unenumerated provisions governing discretionary relief." Section (B)(ii) provides that "no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphases added).

Section (B)(ii) does not lend itself to the interpretation advocated by the Government. Nowhere is it "specified" that the bond determination is a "discretionary" decision of the Attorney General. Compare 8 C.F.R. § 241.5(b) (2004) (providing that the Attorney General "may require the positing of bond in an amount determined by the [Attorney General] to be sufficient to ensure compliance with the conditions of the order, including surrender for removal," but failing to "specify" that that determination is "discretionary"), with 8 C.F.R. § 241.5(c) (noting that the Attorney General "may, in his or her discretion, grant employment authorization....") (emphasis added). Accord Spencer Enters., Inc. v. United States, 345 F.3d 683, 689-90 (9th Cir.2003) (holding that the jurisdictional bar in Section (B)(ii) applies only to acts over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines). Simply, it is not "specified" that the bond determination is discretionary. Furthermore, whether to make that determination is not entirely within the "authority" of the Attorney General — the immigrant's release is commanded by 8 U.S.C. § 1231 as interpreted in Zadvydas. Therefore, the bond determination is not discretionary and this Court has jurisdiction to consider it.

Situations "involv[ing] application of the law to factual determinations" are reviewable, cf. Gonzalez-Torres v. INS, 213 F.3d 899, 901 (5th Cir.2000); situations involving discretionary relief generally are unreviewable. The setting of a bond for a post-removal-order immigrant clearly falls into the former category. In fact, the very regulation cited by the Government for its argument on the merits that a condition of bond is permissible, 8 C.F.R. § 241.5(b), authorizes a "bond in an amount determined by the [Attorney General]...." (emphasis added). Determinations (application of law to facts) are reviewable; explicitly identified discretionary actions are not. See Spencer, 345 F.3d at 689-90; c.f. Gonzalez-Torres, 213 F.3d at 901.

Based on the Supreme Court's clear language in Zadvydas and St. Cyr, and because "the extent of the [Attorney General's authority under the post-removal-order detention statute] is not a matter of discretion," Zadvydas, 533 U.S. at 687, 121 S.Ct. 2491, this Court has jurisdiction to hear Shokeh's claim.

III. STANDARD OF REVIEW

In reviewing denials of habeas corpus relief, this Court reviews the district court's findings of fact for clear error, but reviews issues of law de novo. Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.1992).

IV. DISCUSSION

A. Zadvydas and the legal framework surrounding post-removal-order immigrants.

After a final order of removal is entered, 8 U.S.C. § 1231 provides for detention of immigrants pending actual removal. Faced with the issue "whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States," the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by [8 U.S.C. § 1231]." Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491. The Court explained that § 1231 has two main purposes: (1) "ensuring the appearance of aliens at future immigration proceedings"; and (2) "preventing danger to the community." 533 U.S. at 690, 121 S.Ct. 2491. "[B]y definition the first justification — preventing flight — is weak or nonexistent where removal seems a remote possibility at best." Id. And while the rationale behind protecting the community "does not necessarily diminish in force over time ... [the Supreme Court has] upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections."⁵ Id. at 690-91, 121 S.Ct. 2491. Because cessante ratione legis cessat ipse lex ("the rationale of a legal rule no longer being applicable, that rule itself no longer applies"), id. at 699, 121 S.Ct. 2491, the Court read a reasonableness term into the statute.

[T]he habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of...