Unreported / Non-Citable
Background
Petitioner, an immigration detainee, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The petition asserts four claims: (1) continued detention violates due process and 8 U.S.C. § 1231(a)(6), as read in Zadvydas v. Davis, because there is no significant likelihood of removal in the reasonably foreseeable future; (2) Respondents' third-country removal procedures violate due process, § 1231, the Convention Against Torture, and the Administrative Procedure Act; (3) those procedures violate the Fifth and Eighth Amendments; and (4) re-detention and revocation of release violate due process, 8 C.F.R. § 241.13, and the APA.
Respondents answered that the petition is a form filing with one handwritten passage and should be read as raising only the Zadvydas claim. They also asserted that DHS is ready, willing, and able to remove Petitioner to a third country, naming Mexico and Liberia. They further argued that detention is authorized under § 1231(a)(1)(C) because Petitioner acted to prevent removal to Mexico by refusing to sign necessary documents. These are Respondents' contentions. The order makes no findings on them.
The Court’s Holding
The court appointed counsel for Petitioner. It noted that habeas petitioners have no absolute right to counsel, but that the Criminal Justice Act permits appointment for financially eligible persons when the interests of justice so require. Under Ninth Circuit authority the court weighs the likelihood of success on the merits and the petitioner's ability to articulate his claims pro se given the complexity of the issues. After reviewing Respondents' response, it concluded that the interests of justice require counsel because of the complexity of the legal issues.
The court declined to construe the petition as asserting only Ground One and ordered supplemental briefing on Grounds Two, Three, and Four. On Ground Four, it quoted decisions from this district stating that the Zadvydas burden-shifting framework does not govern re-detention after release on an order of supervision, that 8 C.F.R. §§ 241.13(i) and 241.4(l) supply the process to be followed, and that ICE bears the burden under § 241.13(i)(2) to show a significant likelihood of removal. It said briefing on those points would assist it. It did not apply them to Petitioner. Because Respondents identified possible third countries, it also sought briefing on Grounds Two and Three. Finally, it asked whether this case is distinguishable from cases in which the district has rejected 'failure to cooperate' arguments, since there is no obligation to cooperate with removal to a third country.
The order sets a schedule. Within seven days of service, the Federal Defender must identify counsel and submit a proposed appointment order, and counsel must file a notice of appearance. Within fourteen days of service, Respondent must file a supplemental brief on Grounds Two, Three, and Four, along with relevant documents. Petitioner must then file a traverse within fourteen days of Respondent's brief.
Key Takeaways
- The court will not collapse a pro se habeas petition into one claim because the government characterizes it that way. All four pleaded grounds remain live.
- This is a case-management and appointment order. It grants no habeas relief, orders no release, and decides no merits question.
- The re-detention framework the court quoted comes from other decisions in this district and elsewhere, which stress notice, an informal interview, and an ICE burden under 8 C.F.R. § 241.13(i)(2). The court has not yet applied that framework here.
- Respondents' 'failure to cooperate' theory under § 1231(a)(1)(C) will face the district's prior rejections of it. The government must explain why this case differs.
- Respondent must file its supplemental brief and any relevant documents within fourteen days of service, and Petitioner's traverse follows.
Why It Matters
The order shows how this district handles immigration habeas petitions that combine a prolonged-detention claim with challenges to re-detention and third-country removal. Complexity of those overlapping statutory, regulatory, and constitutional issues was enough to justify appointed counsel before any merits ruling, and the court declined to adopt the government's narrowing of the petition.
The order is an unpublished, interlocutory ruling by a magistrate judge and has no precedential weight. Its legal discussion is largely quotation of other decisions offered to frame the briefing. The questions that remain open are whether re-detention complied with the applicable regulations, whether removal to a third country is significantly likely, whether the removal procedures are lawful, and whether the cooperation argument can justify detention here.