ORDER ADOPTING R & R AND GRANTING HABEAS PETITION

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

The matter comes before the Court on the Report and Recommendation (R & R) of the Honorable Michelle L. Peterson, United States Magistrate Judge. Dkt. #18. Having reviewed the R & R, Respondent's objections thereto, Dkt. #19, Petitioner's response, Dkt. #20, and the remainder of the record, the Court agrees with the recommendation of the R & R to deny Respondent's motion to dismiss and grant Petitioner's habeas petition.

II. BACKGROUND

The Court adopts and incorporates by reference the factual background set forth in the R & R. Dkt. #18 at 2-3. Petitioner Firas Djelassi is a native and citizen of Tunisia who applied for asylum in February 2018. U.S. Citizenship and Immigration Services ("USCIS") determined it lacked jurisdiction and referred his application to an immigration judge ("IJ"). The IJ denied his asylum application and ordered him removed to Tunisia. After Mr. Djelassi appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), the BIA dismissed his appeal. Petitioner timely filed a petition for review and motion to stay his removal, which is currently pending before the Ninth Circuit. See Djelassi v. Barr, No. 19-70184 (9th Cir. Jan. 17, 2019). The Ninth Circuit stayed Petitioner's removal pending adjudication of his petition for review.

Petitioner has been detained at the Northwest Detention Center since May 21, 2018. Dkt. #18 at 3. He appeared for a bond hearing on February 7, 2019, but the IJ determined she lacked jurisdiction to grant bond. Dkt. #7 at 65. Petitioner did not appeal the IJ's decision. On March 26, 2019, the U.S. Department of Homeland Security ("DHS") conducted a Post-Order Custody Review and denied release due to Petitioner's "complete disregard for the immigration laws of the United States" and because his "release from custody would not be in the public interest." Id. at 68-76.

On April 3, 2019, Petitioner brought this 28 U.S.C. § 2241 immigration habeas action to obtain release or a bond hearing. Dkt. #3. The Government moved to dismiss on the basis that Petitioner is lawfully detained and not entitled to a bond hearing. Dkt. #7. On November 27, 2019, Judge Peterson issued the R & R recommending that the Court deny the Government's motion to dismiss, grant Petitioner's habeas petition, and order the Government to provide Petitioner with a bond hearing within thirty (30) days from the date of this Order. Dkt. #18 at 16. In reaching this conclusion, the R & R found that Petitioner remains detained under 8 U.S.C. § 1225(b)(1) and is not statutorily entitled to a bond hearing, Id. at 6-10, but that he is guaranteed a bond hearing under the Due Process Clause of the Fifth Amendment. Id. at 10-16.

III. DISCUSSION

A. Legal Standard

A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

B. Test to Determine Whether Petitioner's Detention Violates Due Process

To determine whether Petitioner's detention without a bond hearing violates due process, the R & R applied the six-factor test set forth in Banda v. McAleenan, 385 F.Supp.3d 1099, 1106 (W.D. Wash. 2019). Dkt. #18 at 13-16. In Banda, Judge Robart adopted a six-factor test to determine whether prolonged mandatory detention violates due process in a particular case: "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." Banda, 385 F. Supp. 3d at 1106 (quoting Jamal A v. Whitaker, 358 F.Supp.3d 853, 858-59 (D. Minn. 2019)). Here, the R & R found that four of the six Banda factors weighed in favor of granting Petitioner a bond hearing and two of the factors were neutral. Dkt. #18 at 16. Accordingly, Judge Peterson concluded that Petitioner's removal was unreasonably prolonged and due process required that he be granted a bond hearing. Id. (citing Banda, 385 F. Supp. 3d at 1120-21).

The Government objects that the R & R erred in applying the six-part test under Banda instead of the three-part test under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) to determine whether Petitioner is entitled to a bond hearing. The Banda court declined to apply the three-factor Mathews test where the petitioner had received no prior bond hearing, on the basis that the Mathews test "balances the benefits or burdens of `additional or substitute procedural safeguards'" and therefore "does not resolve the more fundamental issue of whether any procedure—such as a bond hearing— must be provided." Banda, 385 F. Supp. 3d at 1106 (quoting Mathews, 424 U.S. at 334, 96 S.Ct. 893) (emphasis added). Under Mathews, the court must consider (1) the private interest affected; (2) the government's interest; and (3) the value added by additional or substitute procedural safeguards in the situation before the court. Mathews, 424 U.S. at 334, 96 S.Ct. 893 (emphasis added). Banda reasoned that "[w]hile the Mathews factors may be well-suited to determining whether due process requires a second bond hearing, they are not particularly probative of whether prolonged mandatory detention has become unreasonable in a particular case." Banda, 385 F. Supp. 3d at 1118.

Here, the Government objects to the R & R's application of Banda because Petitioner received a Post-Order Custody Review on March 26, 2019, that assessed whether he was a danger or flight risk. Dkt. #20 at 2. This review was conducted by U.S. Immigration and Customs Enforcement ("ICE") pursuant to 8 U.S.C. § 1182(d)(5)(A), which authorizes DHS to discretionarily grant parole authority for "urgent humanitarian reasons" or "significant public benefit." Id.; see also 8 C.F.R. §§ 212.5(b)-(c); 235.3(b)(2)(iii)-(4)(ii) (federal regulations describing factors for appropriateness of parole). Upon review of Petitioner's file and information by ICE's reviewing officials, ICE declined to grant discretionary parole. Dkt. #7 at 67-76. The Government reasons that this prior custody review constitutes "process" that requires application of Mathews instead of Banda, since Petitioner was provided an interview and an opportunity to submit documentary evidence. Dkt. #20 at 2.

The Court finds that Rodriguez v. Robbins forecloses the Government's argument that a discretionary parole custody review qualifies as past due process afforded to Petitioner. 715 F.3d 1127 (9th Cir. 2013), abrogated on other grounds sub. nom Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018). In Rodriguez, the Ninth Circuit concluded that the discretionary parole system available to § 1125(b) detainees does not constitute legitimate due process under the Fifth Amendment to address continued detention. Id. at 1144 ("[T]he discretionary parole system available to § 1125(b) detainees is not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention."). The Ninth Circuit reached this conclusion because of the different standards of review between bond hearings and discretionary parole reviews and the fact that the parole system "is purely discretionary and its results are unreviewable by IJs." Id.

Moreover, nothing in Banda supports the Government's proposition that a bond hearing before an IJ constitutes "additional process" if preceded by a discretionary custody review conducted by ICE. On the contrary, Banda indicates that "additional process" for § 1125(b) detainees refers to instances where the petitioner has already received a constitutionally sufficient hearing by a neutral decision maker and seeks a second hearing. See Banda, 385 F. Supp. 3d at 1118 ("The Court is aware of only one § 1225(b) case that applied the Mathews factors, and that case is distinguishable from the instant action because the petitioner had already received ... a Rodriguez III [Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)] bond hearing and was seeking a second hearing.") (citing Singh v. Nielsen, No. 18-2490, 2018 WL 4110549, at *3 (N.D. Cal. Aug. 29, 2018)). Accordingly, Petitioner's prior custody review does not constitute past "process" that requires application of Mathews, and the R & R appropriately applied the six Banda factors.

Finally, although Petitioner appeared for a bond hearing on February 7, 2019, neither party has addressed the question of whether Petitioner's prior appearance constitutes past process that requires application of Mathews instead of Banda. The R & R noted that the IJ declined to hear Petitioner's case for lack of jurisdiction, see Dkt. #7 at 65, and proceeded with the Banda analysis on the basis that Petitioner has not yet received a constitutionally sufficient bond hearing. Dkt. #18 at 3. The Government made no objections on this point. See generally Dkt. #20. Given that Petitioner's case for bond was never heard on the merits, the Court finds no basis to disturb the R & R's finding.

C. Petitioner's Constitutional Right to Due Process

The Government also objects that under Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 214, 73 S.Ct. 625, 97 S.Ct. 956 (1953), the Petitioner has no constitutional right to a bond hearing. Dkt. #20 at 5 (arguing that as a noncitizen arriving in the United States, Mr. Djelassi has "no constitutionally protected interest to be free in the United States."). Dkt. #20 at 5. The Government previously raised this argument in its motion to dismiss, reasoning that like the petitioner in Mezei, Mr. Djelassi is considered an "arriving alien" with no right to enter the United States and who is subject to removal procedures. Dkt. #7 at 13. The Government argues that Mr. Djelassi has already been afforded more process than the petitioner in Mezei, who was denied entry without any notice or opportunity for a hearing. Dkt. #20 at 5.

The Court agrees with the R & R that Mezei is inapplicable here. In Mezei, the Supreme Court addressed the constitutionality of a multi-year detention on Ellis Island of a legal permanent resident returning from a trip abroad. Mezei, 345 U.S. at 214, 73 S.Ct. 625. Before he filed his habeas petition, the Mezei petitioner had already been permanently excluded from the United States under emergency regulations promulgated under the Passport Act of 1918. Id. at 208, 73 S.Ct. 625. Here, the Government argues that Mr. Djelassi's pending asylum application does not distinguish him from Mezei, given that an IJ and the BIA have already found him ineligible for asylum. Dkt. #20 at 5. However, this finding is currently on appeal before the Ninth Circuit, whereas the petitioner in Mezei had no right to further proceedings. See Mezei, 345 U.S. at 210-11, 73 S.Ct. 625 (describing powers of Attorney General under Passport Act to permanently exclude petitioner without further review). Based on these distinctions, the R & R—consistent with the majority of district courts—found that Mezei is not applicable to this case, where Petitioner seeks a bond hearing while awaiting a final decision on his asylum application. Dkt. #18 at 12 (citing Lett v. Decker, 346 F.Supp.3d 379, 386 (S.D.N.Y. 2018)); see also Kouadio v. Decker, 352 F.Supp.3d 235, 240 (S.D.N.Y. 2018) (collecting cases). Accordingly, this Court agrees with the R & R that Mezei is inapposite and does not extinguish Petitioner's constitutional right to a bond hearing.

The Government also invokes Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) to argue that Petitioner is not entitled to a bond hearing. Dkt. #20 at 3-5. In Demore, the Supreme Court denied a legal permanent resident's due process challenge to his continued detention under 8 U.S.C. § 1226(c), which governs detention of noncitizens with criminal histories. Demore, 538 U.S. at 510, 123 S.Ct. 1708. However, Demorc limited its holding to "brief" mandatory detention under § 1226(c), which has a "definite termination point" resulting in detention of typically less than five months. Id. at 529-30, 123 S.Ct. 1708; see also Rodriguez, 715 F.3d at 1135 ("Demore's holding hinged on the brevity of mandatory detention. ..."). Here, Petitioner has been detained nearly one year and eight months from the date of this order. Dkt. #17 at 2. Accordingly, Demore is inapposite here and does not limit Petitioner's right to a bond hearing.

D. The R & R's Application of the Banda Factors

While the Government has framed its objections under the assumption that Mathews applies, see Dkt. #20 at 6-8, several of its arguments address the R & R's analysis of certain Banda factors. First, in analyzing the burden on Petitioner, the Government suggests that Petitioner's period of detention is almost over. Dkt. #20 at 6 (asserting that "a decision on the merits could issue at any time" because petition for review is fully briefed and scheduled for oral argument in April 2020). This objection concerns the second Banda factor, which considers how long Petitioner's detention will likely continue. See Banda, 385 F. Supp. 3d at 1106. The R & R found that this factor favors granting Petitioner a bond hearing since it may take up to another year, or longer, for the Ninth Circuit to resolve his case. Dkt. #18 at 13. The Court disagrees with the Government's suggestion that oral argument scheduled in April 2020 means that a final decision on Petitioner's asylum claim—and therefore the end of his detention—is imminent. The oral argument date does not guarantee how quickly the Ninth Circuit will issue a ruling, and the Court finds no error in the R & R's assessment that resolution of Petitioner's case may reasonably take another year or longer from the date of this order. See Dkt. #18 at 14.

Next, in analyzing the burden on Petitioner, the Government contends that Mr. Djelassi should have sought expedited review by the Ninth Circuit to justify his request for a bond hearing. Dkt. #20 at 7-8. This objection relates to the fourth Banda factor regarding delays in removal proceedings caused by the detainee. See Banda, 385 F. Supp. 3d at 1106. Under the Government's logic, an asylum applicant's failure to seek expedited review amounts to dilatory behavior that weighs against his right to a bond hearing. The Court finds the Government's argument unavailing. Circuit Rule 27-12 provides that motions to expedite will be granted upon a showing of "good cause," which includes cases involving incarcerated criminal defendants, and situations where irreparable harm may occur or the appeal may become moot. Ninth Cir. Local Rule 27-12. Nothing in the Government's briefing indicates how Petitioner's case reasonably qualifies for expedited review or why it would be appropriate for him to seek such relief. Instead, the record reflects that delay in this case is a product of the BIA's and Ninth Circuit's "crowded dockets," which courts typically attribute to the Government —not the Petitioner. Dkt. #18 at 15 (citing Martinez v. Clark, No. 18-1669, 2019 WL 5968089, at *10 (W.D. Wash. May 23, 2019), R & R adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019)). Accordingly, the Court agrees with the R & R that Petitioner has not engaged in dilatory tactics, and the fourth factor weighs in his favor.

The Government also objects that Mr. Djelassi's habeas petition has not alleged any error in the Board's decision denying him asylum, nor has he proffered reasons why the Ninth Circuit is likely to grant his petition for review. Dkt. #20 at 5. This argument addresses the sixth Banda factor, which considers the likelihood that removal proceedings will result in a final order of removal. Banda, 385 F. Supp. 3d at 1120 (considering "whether the noncitizen has asserted any defenses to removal."). However, Petitioner's briefing explains that the IJ found his testimony credible and indicates that he has challenged the BIA and IJ's conclusion that the Tunisian government is able to control Salafist violence. Dkt. #17 at 2. Without further information, the Court agrees with the R & R that it lacks sufficient information to determine whether an appeal on this issue is non-frivolous or whether Petitioner will likely prevail. See Dkt. #18 at 15. Accordingly, the R & R correctly found this factor neutral.

The Government's remaining objections are not relevant under Banda. The Government objects that Petitioner has failed to explain why a bond hearing before an immigration judge would lower the chances of him being erroneously deemed a flight risk. Dkt. #20 at 6-7. While "additional process" is one of the factors considered under Mathews, this factor is not considered under Banda. See 385 F. Supp. 3d at 1106. Moreover, as discussed above, Rodriguez v. Robbins forecloses the Government's argument that discretionary parole review for § 1125(b) detainees constitutes due process. See 715 F.3d at 1144. The Government also objects that holding a bond hearing for Petitioner burdens the Government by requiring an IJ to place an additional hearing on their overcrowded docket. Dkt. #20 at 7. However, as the Government concedes, Banda does not apply any factors relating to the burden the government would bear if required to provide Petitioner a bond hearing. Id. at 3; see also Banda, 385 F. Supp. 3d at 1106.

IV. CONCLUSION

Having reviewed the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge, the Government's objections, Petitioner's response, and the remaining record, the Court finds and ORDERS:

(1) The Court ADOPTS the Report and Recommendation (Dkt. #18).

(2) The Government's motion to dismiss (Dkt. # 7) is DENIED.

(3) Petitioner's habeas petition (Dkt. #3) is GRANTED. Within 30 days of the date of this order, the Government shall provide Petitioner with a bond hearing that complies with the procedural requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).

REPORT AND RECOMMENDATION

MICHELLE L. PETERSON, United States Magistrate Judge

I. INTRODUCTION

Petitioner, who has been detained at the Northwest Detention Center in Tacoma, Washington, since May 21, 2018, brings this 28 U.S.C. § 2241 immigration habeas action to obtain release or a bond hearing. Although he initiated this action pro se, the Court has appointed the Office of the Federal Public Defender to represent him. Currently before the Court is the Government's motion to dismiss, which asserts that Petitioner is lawfully detained and not entitled to a bond hearing. (Dkt. # 7.) Petitioner opposes dismissal. (Dkt. # 17.) Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that the motion to dismiss be DENIED, Petitioner's habeas petition be GRANTED, and the Government be ordered to provide Petitioner with a bond hearing as explained below.

II. BACKGROUND

Petitioner is a native and citizen of Tunisia. (Dkt. # 7 at 21.) He came to the United States to board a cruise ship where he had obtained employment as a card dealer. (Id. at 30, 43.) In July 2017, he was temporarily admitted into the United States at the Sea-Tac International Airport as a crewman on a vessel (C-1 visa). (Id. at 67.) He then flew to Juno, Alaska, where he boarded the cruise ship. (Id. at 43.) He worked on the ship for several months but was fired in September 2017. (Id. at 27, 43, 72, 74.) He was served a Notice to Detain, Remove, or Present Alien (Form I-259), which provides for the removal of a noncitizen crewman on a vessel other than the one on which he arrived, if removal on that vessel is impracticable. (Id. at 22, 69; see 8 U.S.C. § 1284(c); 8 C.F.R. §§ 253.1, 253.2(b).) U.S. Customs and Border Patrol paroled Petitioner into the United States so he could be taken to the Los Angeles airport for return to Tunisia. (Dkt. # 7 at 22, 69.) During his transport, he escaped the security detail and absconded. (Id. at 22, 43, 69.)

In February 2018, Petitioner filed an application for asylum (Form I-589) with U.S. Citizenship and Immigration Services ("USCIS"), expressing a fear of returning to Tunisia. (Id. at 22, 27-44, 69.) USCIS determined that it did not have jurisdiction to consider Petitioner's application and referred his application to an immigration judge ("IJ"). (Id. at 22; see 8 C.F.R. § 208.2(c).) On May 21, 2018, Petitioner was issued a Notice of Referral to an IJ in accordance with 8 C.F.R. § 208.2(c), as a "[c]rewmember/violator." (Dkt. # 7 at 24-25.) Following a merits hearing on August 8, 2018, the IJ denied his application and ordered him removed to Tunisia. (Id. at 46-56.) On January 7, 2019, the Board of Immigration Appeals ("BIA") dismissed his appeal. (Id. at 58-63.) Petitioner timely filed a petition for review and a motion to stay his removal with the Ninth Circuit. See Djelassi v. Barr, No. 19-70184, Dkt. 1 (9th Cir. Jan. 17, 2019). The Ninth Circuit temporarily stayed his removal and then granted the motion to stay pending adjudication of his petition for review. Id., Dkt. 8 (May 31, 2019).

Petitioner has been detained since May 21, 2018. (Dkt. # 7 at 68.) On February 7, 2019, he appeared for a bond hearing, but the IJ determined she lacked jurisdiction to grant bond. (Id. at 65.) Petitioner did not appeal this decision to the BIA. On March 26, 2019, the U.S. Department of Homeland Security ("DHS") conducted a Post-Order Custody Review ("POCR") and denied release because Petitioner had "demonstrated a complete disregard for the immigration laws of the United States" and was considered a flight risk whose "release from custody would not be in the public interest." (Id. at 68-76.)

Petitioner initiated the instant action on April 3, 2019. (Dkt. # 1.)

III. DISCUSSION

The Government argues that this action should be dismissed because Petitioner is subject to mandatory detention as an arriving noncitizen under 8 U.S.C. § 1225(b) and due process does not entitle him to a bond hearing. In response, Petitioner argues that although he was initially detained under § 1225(b), he is now detained under § 1226(a), which provides for a bond hearing. Alternatively, Petitioner asserts that he is entitled to a bond hearing under the Due Process Clause. As discussed below, the Court concludes that § 1225(b)(1) governs Petitioner's detention and that due process requires he be afforded a bond hearing at which the Government must bear the burden of justifying his continued detention by clear and convincing evidence.

A. Statutory Framework for Immigration Detention

Three statutes govern immigration detention. See 8 U.S.C. §§ 1225, 1226, 1231. Although only two are at issue here, §§ 1225 and 1226, the Court briefly discusses each to provide context for the discussion below.

Section 1225 applies to "applicants for admission"—noncitizens who "arrive[] in the United States," or are "present" in the United States but have "not been admitted." 8 U.S.C. § 1225(a)(1).1 There are two categories of applicants for admission, those who fall under § 1225(b)(1) and those who fall under § 1225(b)(2). The parties agree that, at least initially, Petitioner fell under § 1225(b)(1), which applies to, among others, noncitizens initially determined to be inadmissible because of fraud, misrepresentation, or lack of valid documentation. See Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 837, 200 L.Ed.2d 122 (2018) (citing § 1225(b)(1)(A)(i)). Normally, noncitizens covered by § 1225(b)(1) are subject to an expedited removal process that does not include a hearing before an IJ or review of the removal order. 8 U.S.C. § 1225(b)(1)(A)(i). If, however, a § 1225(b)(1) noncitizen "indicates either an intention to apply for asylum ... or a fear of persecution," the inspecting immigration officer must refer the noncitizen for an interview with an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30(d). If the asylum officer determines that the noncitizen has a credible fear of persecution, the noncitizen "shall be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii). Under the statute, the only opportunity for a noncitizen to be released pending a decision on the asylum application is temporary parole "for urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b), 235.3. The statute does not impose "any limit on the length of detention" pending a decision on the asylum application and does not authorize bond hearings or release on bond. Jennings, 138 S. Ct. at 842-45.

Section 1226 provides the framework for the arrest, detention, and release of noncitizens who are in removal proceedings. Section 1226(a) grants DHS the discretionary authority to determine whether a noncitizen should be detained, released on bond, or released on conditional parole pending the completion of removal proceedings, unless the noncitizen falls within one of the categories of criminals described in § 1226(c), for whom detention is mandatory until removal proceedings have concluded.2 8 U.S.C. § 1226; Jennings, 138 S. Ct. at 846-48. When a noncitizen is arrested and taken into immigration custody pursuant to § 1226(a), ICE makes an initial custody determination, including the setting of bond. See 8 C.F.R. § 236.1(c)(8). After the initial custody determination, the detainee may request a bond redetermination by an IJ. 8 C.F.R. § 236.1(d)(1). Once an IJ has made an initial bond redetermination, a detainee's request for a subsequent bond redetermination must be made in writing and must show that the detainee's circumstances have changed materially since the prior bond redetermination. 8 C.F.R. § 1003.19(e).

Section 1231 governs the detention and release of noncitizens who have been ordered removed. During the "removal period," which typically lasts 90 days, detention is mandatory. 8 U.S.C. § 1231(a)(2). The removal period is triggered by the latest of the following: (1) the date the order of removal becomes administratively final; (2) if the removal order is judicially reviewed and if a court orders a stay of the removal, the date of the court's final order; or (3) if the noncitizen is detained or confined (except under an immigration process), the date the noncitizen is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). If ICE is unable to remove the noncitizen during the removal period, DHS may continue to detain certain non-citizens specified in the statute or release them under an order of supervision. 8 U.S.C. § 1231(a)(6). Section 1231(a)(6), however, does not authorize indefinite detention. Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In addition, the Ninth Circuit has held that noncitizens subject to prolonged detention under § 1231(a)(6) are entitled to a bond hearing. Diouf v. Napolitano ("Diouf II"), 634 F.3d 1081, 1082 (9th Cir. 2011).

To summarize, §§ 1225(b) and 1226(c) mandate detention without a bond hearing until removal proceedings have concluded, even if the detention becomes prolonged. Jennings, 138 S. Ct. at 842, 847. Section 1226(a) permits prolonged detention while removal proceedings are pending but gives noncitizens the opportunity to request a bond hearing. Section 1231(a) requires detention during the removal period but authorizes DHS to release certain noncitizens after the removal period; noncitizens detained for a prolonged period under § 1231(a)(6) are entitled to a bond hearing in the Ninth Circuit and cannot be held indefinitely.

B. Statutory Basis for Petitioner's Detention

As noted above, the parties do not dispute that Petitioner was initially detained under § 1252(b)(1). Petitioner argues, however, that because his administrative proceedings have concluded and he is subject to a Ninth Circuit stay of removal while his petition for review is under consideration, his detention is now governed by § 1226(a).

Petitioner relies on Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), which, he argues, remains good law after the Supreme Court's recent decision in Jennings. Casas-Castrillon involved a legal permanent resident who had been detained for seven years without an opportunity to contest his detention before an IJ. At the time he filed his habeas petition, his administrative proceedings had concluded and he was awaiting the Ninth Circuit's decision on his timely filed petition for review of his final removal order. The petitioner was initially subject to mandatory detention under § 1226(c), but both parties agreed that at some point that section no longer governed his detention. The Ninth Circuit rejected the government's argument that § 1231(a) applied, citing Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (holding that "when a court of appeals issues a stay of removal pending its decision on [a non-citizen's] petition for review of his removal order, the removal period begins only after the court denies the petition and withdraws the stay of removal"). The court then considered whether § 1226(c) or § 1226(a) applied. The court concluded that § 1226(c)'s mandatory detention provision applied only to expedited removal of criminal noncitizens who are in removal proceedings, and that removal proceedings conclude upon the dismissal of the noncitizen's appeal by the BIA. Because neither § 1231(a) nor § 1231(c) governed the petitioner's detention, the court concluded that § 1226(a) applied. The Ninth Circuit also construed § 1226(a) as requiring a bond hearing at which the petitioner was entitled to release unless the government established by clear and convincing evidence that he was a flight risk or danger to the community.

Casas-Castrillon remains binding circuit authority unless it is "clearly irreconcilable" with higher authority. See In re Amy, 714 F.3d 1165, 1167 (9th Cir. 2013). Under the "clearly irreconcilable" standard, "it is not enough for there to be some tension between the intervening high authority and prior circuit precedent." Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). So long as the court "can apply... prior circuit precedent without running afoul of the intervening authority," it must do so. Id. (internal quotation marks omitted). The Court concludes that Casas-Castrillon is clearly irreconcilable with Jennings. First, the Ninth Circuit's determination that § 1226(a)—which authorizes detention "pending a decision on whether the [noncitizen] is to be removed from the United States"—governs the detention of noncitizens initially detained under § 1226(c) while their petitions for review are pending, is inconsistent with the Supreme Court's interpretation of §§ 1226(a) and 1226(c). Both courts interpreted § 1226(c) as authorizing detention during removal proceedings, but Casas-Castrillon identified an earlier termination point for these proceedings than Jennings. The Ninth Circuit held that § 1226(c) detention ends upon the dismissal of the noncitizen's appeal by the BIA. Casas-Castrillon, 535 F.3d at 948. The Supreme Court, however, explained that "together with § 1226(a), § 1226(c) makes clear that detention of [noncitizens] within its scope must continue `pending a decision on whether the [noncitizen] is to be removed from the United States.'" Jennings, 138 S. Ct. at 846 (quoting § 1226(a), emphasis in Jennings). Where a noncitizen filed a petition for review and obtains a stay of removal, the BIA's dismissal of the appeal is not a final decision on whether the noncitizen is to be removed from the United States. See Prieto-Romero, 534 F.3d at 1057-59 (decision on whether to remove noncitizen still pending where court of appeals has stayed the noncitizens removal and is considering a petition for review). Thus under Jennings, noncitizens initially detained under § 1226(c) remain detained under that statute pending a decision on whether they are to be removed, not pending the conclusion of administrative proceedings. This interpretation is at odds with Casas-Castrillon's holding that detention shifts from § 1226(c) to § 1226(a) when a petition for review is filed.

Second, the Ninth Circuit's application of the canon of constitutional avoidance to require § 1226(a) bond hearings where the burden is on the government is clearly irreconcilable with Jennings's holding that "there is no justification for any of the procedural requirements that the Court of Appeals layered onto § 1226(a) without any arguable statutory foundation." 138 S. Ct. at 842; see also id. at 847 ("Nothing in § 1226(a)'s text—which says only that the Attorney General `may release' the [noncitizen] `on ... bond'—even remotely supports the imposition of [periodic bond hearings at which the Attorney General must prove by clear and convincing evidence that continued detention is justified]."). For these reasons, Casas-Castrillon is no longer binding authority following Jennings.

Petitioner nevertheless maintains that even under Jennings, he is not detained pursuant to § 1225(b)(1). In Jennings, the Supreme Court explained:

138 S. Ct. at 842. The Supreme Court further determined that the "plain meaning" of § 1225(b)(1)(B)(ii) is that "detention must continue until immigration officers have finished `consider[ing]' the application for asylum." Id. at 844 (quoting 8 U.S.C. § 1225(b)(1)(B)(ii), alteration in Jennings). Petitioner seizes on this language to argue that because his case is pending before the Ninth Circuit, immigration officers have finished considering his application for asylum and his detention is now governed by § 1226(a).3

While Petitioner's argument has some appeal at first glance, it is not consistent with Jennings as a whole. The respondents in Jennings asserted that § 1225(b)(1) mandates detention only until the start of applicable proceedings—rather than all the way through their conclusion—at which time detention authority shifts from § 1225(b)(1) to § 1226(a). Id. at 845. The Supreme Court rejected this argument, in part based on "the context of the statutory scheme as a whole." Id. As the Supreme Court explained, § 1226(a) authorizes detention only "[o]n a warrant issued" by the Attorney General leading to the noncitizen's arrest, whereas § 1225(b) permits detention without a warrant at the border. Id. Under the respondents' interpretation of the statutes, the Supreme Court reasoned, the Attorney General would have to issue an arrest warrant to continue detaining an arriving noncitizen once removal proceedings began, which made "little sense." Id. For the same reason, it would make little sense to conclude that detention authority for arriving noncitizens shifts from § 1225(b)(1) to § 1226(a) once the noncitizen files a petition for review in the court of appeals. Rather, a more reasonable interpretation of § 1225(b)(1), as construed by Jennings, is that the applicable proceedings—"further consideration of the application for asylum"—conclude after both administrative and judicial proceedings are finalized. Given this reading of the statute and Jennings, the Court concludes that Petitioner remains detained under § 1225(b)(1) and is not statutorily entitled to a bond hearing.

C. Due Process

The parties dispute whether due process requires Petitioner to receive a bond hearing before an IJ and if so, which standards apply. The Government argues that the Court should defer to the political branches' authority to control the country's borders and hold that Petitioner is only entitled to the process provided by Congress, specifically the opportunity to seek temporary release on parole under 8 U.S.C. § 1182(d)(5)(A). The Government also contends that the Court should not upset Congress's detailed statutory scheme, which does not provide for bond hearings for § 1225(b)(1) detainees. If the Court orders a bond hearing for Petitioner, the Government maintains that Petition should bear the burden of justifying his release.

Petitioner responds that even though he is an arriving noncitizen, his 18-month detention without a bond hearing is unconstitutional. He asserts he was entitled to a bond hearing after six months in detention. Alternatively, if the Court applies a "reasonableness" test, he contends that his detention is unreasonably prolonged such that a bond hearing is required. Finally, Petitioner argues that the procedural protections established in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), should apply to his bond hearing, namely that the Government should bear the burden of justifying his continued detention by clear and convincing evidence.

The Honorable James L. Robart recently adopted the Honorable Mary Alice Theiler's recommended finding that "unreasonably prolonged detention under § 1225(b) without a bond hearing violates due process." Banda v. McAleenan, 385 F.Supp.3d 1099, 1106 (W.D. Wash. 2019). Judge Robart also adopted the case-specific analysis Judge Theiler employed to determine whether prolonged mandatory detention violates due process in a particular case. Id.; see also id. at 1117 (Theiler R & R rejecting request to adopt bright-line rule that detention becomes unreasonably prolonged at six months). That analysis requires consideration of the following factors: "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." Id. at 1106 (quoting Jamal A v. Whitaker, 358 F.Supp.3d 853, 858-59 (D. Minn. 2019)). Finally, Judge Robart agreed with Judge Theiler that where due process requires a bond hearing, the government must provide clear and convincing evidence to justify the noncitizen's continued detention. Id. at 1107. The Court fully agrees with Judge Robart's and Judge Theiler's carefully reasoned decisions in Banda and will apply their analysis here.

Before doing so, however, the Court addresses the only significant argument the Government raises that Banda did not address. The Government posits that the Supreme Court's decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 S.Ct. 956 (1953), precludes the Court from granting Petitioner a bond hearing. In Mezei, the Supreme Court held that a noncitizen who had lived in the United States for about 25 years but left the country for 19 months was not entitled to due process in assessing his right to admission upon his return. Id. at 208-16, 73 S.Ct. 625. Although Mezei had previously resided in the United States, he was "permanently excluded from the United States on security grounds" and "stranded in his temporary haven on Ellis Island because other countries [would] not take him back." Id. at 207, 73 S.Ct. 625. The Supreme Court ultimately held that Mezei's detention without a hearing at the border was lawful. Id. at 212, 73 S.Ct. 625 ("Whatever the procedure authorized by Congress is, it is due process as far as [a noncitizen] denied entry is concerned." (quoted source omitted)).

The Court, however, finds that Mezei does not apply here.4 As other courts have reasoned, Mezei had already been permanently excluded from the United States prior to filing his habeas petition, and therefore he had no right to further proceedings to determine whether he could remain in the country. See Lett v. Decker, 346 F.Supp.3d 379, 386 (S.D.N.Y. 2018). In contrast to Mezei, who sought a hearing so he could be temporarily admitted into the United States on bond until arrangements were made for his departure abroad, Petitioner seeks a bond hearing prior to a final decision on his asylum application. See id. (citing Jennings, 138 S. Ct. at 868 (Breyer, J., dissenting) ("Mezei... was in a sense in the position of a convicted criminal who had lost his appeal, not a criminal awaiting trial. ...")). In addition, the Supreme Court in Mezei "explicitly tailored its holding to the national security context. ..." Id.; see also Kouadio v. Decker, 352 F.Supp.3d 235, 240 (S.D.N.Y. 2018) (collecting cases recognizing Mezei was limited to the national security context in which it was decided). Thus while "Mezei may compel the conclusion that arriving [noncitizens] already excluded on national security grounds are not entitled to a bond hearing prior to their arranged deportation," it "does not compel the categorical conclusion that all arriving [noncitizens] may be subject to prolonged confinement without a bond hearing." Lett, 346 F. Supp. 3d at 386; see also Kouadio, 352 F. Supp. 3d at 241 (finding that generalized national security interest was "insufficient to trigger reduction of due process protections recognized in Mezei" and ordering a bond hearing for a § 1225(b)(1) detainee).

D. Bond Hearing

To reiterate, whether Petitioner's detention is unreasonably prolonged such that he is entitled to a bond hearing requires consideration of "(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal." Banda, 385 F. Supp. 3d at 1106 (quoting Jamal, 358 F. Supp. 3d at 858-59). The Court discusses each factor below.

The length of detention is "the most important factor." Id. at 1118. Petitioner has been in detention for 18 months, which is a very long time. See id. (granting bond hearing after 17 months detention and collecting cases granting bond hearings after nine, 10, 16, and 19 months detention). The first factor strongly favors granting Petitioner a bond hearing.

The second factor requires consideration of "how long the detention is likely to continue absent judicial intervention; in other words, the `anticipated duration of all removal proceedings—including administrative and judicial appeals.'" Id. at 1119 (quoting Jamal, 358 F. Supp. 3d at 859). Petitioner's petition for review has been pending since January 17, 2019, and briefing should be completed by the end of the year. It may take up to another year, or longer, for the Ninth Circuit to resolve the case. See id. (petition for review process may take up to two years or longer). This factor favors granting Petitioner a bond hearing, as well.

The third factor—conditions of the detention facility where Petitioner is detained —is neutral because the parties have not submitted any evidence regarding the conditions at the Northwest Detention Center. See id. (reaching same conclusion given analogous facts).

The fourth and fifth factors consider the nature and extent of any delays in the removal proceedings caused by Petitioner and the Government, respectively. See id. at 1119-20. "Petitioner is entitled to raise legitimate defenses to removal ... and such challenges to his removal cannot undermine his claim that detention has become unreasonable." Martinez v. Clark, No. 18-1669, 2019 WL 5968089, at *10 (W.D. Wash. May 23, 2019), R & R adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019) (quoted source omitted, citing Hernandez v. Decker, No. 18-5026, 2018 WL 3579108, at *9 (S.D.N.Y. July 25, 2018) ("[T]he mere fact that a noncitizen opposes his removal is insufficient to defeat a finding of unreasonably prolonged detention, especially where the Government fails to distinguish between bona fide and frivolous arguments in opposition.")).5 Courts, however, should be "sensitive to the possibility that dilatory tactics by the removable [noncitizen] may serve not only to put off the final day of deportation, but also to compel a determination that the [noncitizen] must be released because of the length of his incarceration." Id. (quoted source omitted). With respect to the government, "If immigration officials have caused delay, it weighs in favor of finding continued detention unreasonable. ... Continued detention will also appear more unreasonable when the delay in the proceedings was caused by the immigration court or other non-ICE government officials." Sajous v. Decker, No. 18-2447, 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018).

Petitioner was detained on May 21, 2018, had a master calendar hearing before an IJ on May 31, 2018, and appeared for his merits hearing on August 8, 2018. Petitioner timely appealed to the BIA, which rendered its decision approximately five months later. Petitioner timely filed a petition for review in the Ninth Circuit and has requested only a one-month extension of time. Based on this record, there is no evidence Petitioner has engaged in dilatory tactics, and therefore the fourth factor weighs in his favor.

Likewise, there is no evidence the Government has engaged in deliberate delay tactics. Most of the delay appears to have stemmed from the BIA's and Ninth Circuit's crowded dockets. "Although not the result of intentional action on behalf of government officials, this delay is attributable to the Government." Martinez, 2019 WL 5968089, at *10 (citing Sajous, 2018 WL 2357266, at *11 ("the operative question should be whether the [noncitizen] has been the cause of the delayed immigration proceeding and, where the fault is attributable to some entity other than the [noncitizen], the factor will weigh in favor of concluding that continued detention without a bond hearing is unreasonable"); Dukuray v. Decker, No. 18-2898, 2018 WL 5292130, at *4 (S.D.N.Y. Oct. 25, 2018) (weighing delay caused by immigration court in favor of the petitioner)). Accordingly, the fifth factor also favors Petitioner.

The final factor involves consideration of "the likelihood that the final proceedings will culminate in a final order of removal." Banda, 385 F. Supp. 3d at 1120 (quoting Jamal, 358 F. Supp. 3d at 860). "In other words, the Court considers whether the noncitizen has asserted any defenses to removal." Id. Petitioner submitted an asylum application, which the IJ and BIA denied. Petitioner is seeking review by the Ninth Circuit, and the Court does not have sufficient information to determine whether the appeal is nonfrivolous or whether petitioner ultimately will prevail. Accordingly, the Court concludes that this factor is neutral.

In sum, four of the six factors weigh in favor of granting Petitioner a bond hearing, and two of the factors are neutral. Accordingly, Petitioner's removal has become unreasonably prolonged and due process requires that he be granted a bond hearing that complies with Singh's procedural requirements. See Banda, 385 F. Supp. 3d at 1120-21.

IV. CONCLUSION

The Court recommends that the Government's motion to dismiss (Dkt. #7) be DENIED, Petitioner's habeas petition be GRANTED, and the Government be ordered to provide Petitioner with an individualized bond hearing that complies with the requirements of Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), within 30 days of the order on this Report and Recommendation. A proposed order accompanies this Report and Recommendation.

Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on December 13, 2019.