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Keywords

precedentappealhearingmotionleasebailasylumliens
statutehearingmotionleaserespondent

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Straube v. Chertoff

Facts

The alien unlawfully entered the United States in 1976. On October 20, 1987, he was convicted of three counts of burglary and sentenced to six years in prison. On August 24, 1995, he was convicted of unlawful taking of a vehicle. On June 9, 1998, he was convicted of petty theft with a prior and sentenced to six years in prison. The federal officials took him into custody on January 26, 2004, upon his release from prison. He remained in their custody. On July 22, 2004, an IJ ordered him deported to Guatemala and rejected his request for asylum and withholding or removal. His appeal was in abeyance.

Petitioner unlawfully entered the United States in 1976. On October 20, 1987, he was convicted of three counts of burglary and sentenced to six years in prison. On August 24, 1995, he was convicted of unlawful taking of a vehicle. On June 9, 1998, he was convicted of petty theft with a prior and sentenced to six years in prison. Respondents took Petitioner into custody on January 26, 2004, upon his release from prison. Petitioner remains in their custody.

Issue

Whether the court erred in delegating the inquiry on the scope of relief to the IJ and whether it was appropriate to order a bail hearing conducted by an IJ.

Petitioner argues that the court committed clear error because 'it is procedurally improper for this Court to delegate the inquiry on scope of relief to the IJ and that it is preferable, if necessary, to refer this matter to a neutral, non-party adjudicator, such as the Magistrate Judge, for determination of the precise remedy to be accorded Petitioner.'

Rule

The Ninth Circuit has held that courts have the authority to remedy prolonged detention under 8 U.S.C.S. 1226(a) by ordering the government to provide an individualized bond hearing before an IJ.

The Ninth Circuit has further held, both explicitly and implicitly, that courts have the authority to remedy prolonged detention under 1226(a) by ordering the government to provide an individualized bond hearing before an IJ.

Analysis

The court applied the rule by determining that the Ninth Circuit's precedent allowed for an individualized bond hearing to be ordered for aliens detained under 1226(a). The court found that the prolonged detention without an individualized determination of flight risk or danger to the community was constitutionally questionable, thus necessitating the bond hearing.

The court finds that the applicable federal statutes, as construed by the Ninth Circuit in Prieto-Romero, Casas-Castrillon, and Tijani, authorize the remedy ordered in the May 14, 2008, Order and compel the two modifications described above.

Conclusion

The motion to amend was denied, but the court sua sponte amended the order to modify it to be construed as a conditional grant of habeas relief.

For the foregoing reasons, the court hereby DENIES the motion to amend and sua sponte AMENDS the May 14, 2008, Order, as described herein.

Who won?

The petitioner prevailed in part as the court ordered a bail hearing to be conducted, emphasizing the need for an individualized assessment of his detention.

The court therefore denies the motion to amend, and sua sponte modifies the order as discussed herein.

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