If the US Federal Courts yield jurisdiction over Suzi Hazahza’s detention, it will mean that the right of habeas has been practically suspended. In other words there will be no place to demand that Homeland Security “produce the body” and show cause.
For this reason attorney Joshua Bardavid has updated his website to include a discussion of habeas corpus: “Habeas Schmabeas.”
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.
-gm
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Radi Hazahza, et al.,
Petitioners,
v.
Michael Chertoff, et al.,
Respondents.
No. 3:07-CV-0327-D (BF)
ECF
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
[SIGNED BY]
__/s/ Stephen P. Fahey______
Assistant United States Attorney
By Nick Braune
Mid-Valley Town Crier
Posted with Permission
Last weekend, March 24 and 25, I joined a pilgrimage led by Jay Johnson-Castro, who has been walking (walking) to various detention sites for immigrants. He and his friends are causing quite a stir around the state; I hooked up with him a bit on his route from an ugly Port Isabel detention center to an ugly one in Raymondville.
My wife and I rode slowly in our car in a short caravan behind Jay and some other stalwart walkers — pilgrims to the Raymondville immigrant detention center. Jay, seeming to me to be in his mid-fifties and wearing a light straw hat to keep the sun off of him, was feeling upbeat, and he made a series of beautiful stump speeches for the press — I saw three news media interview him.
Why should it be a crime, he asks the press, to be an economic or political refugee? Why do authorities lock people up as criminals for being oppressed and wanting to escape to America? Isn’t that (seeking refuge) what the poem engraved on the Statue of Liberty is about?
Emma Lazarus’ stunning sonnet refers to America as the “Mother of Exiles” with mild eyes welcoming the tired, the poor and “huddled masses yearning to breathe free.” But these detention centers do not have mild eyes.
The most emotional part of the pilgrimage for me was simply the sight of the Raymondville center. As we moved off of the highway to it, we saw the bleak prison and the barbed wire. There are regular buildings around, but the detainees are held in huge puffy tents. An article in Rolling Stone magazine last year said the center looked like it just landed from Mars.
(The Raymondville area, the Rolling Stone article explained, was labeled the Valley of Tears in the late 1970s during an onion strike. After the strike, the growers got rid of most farm workers, and the Raymondville area tried textiles to survive. But NAFTA killed the textiles. Then the idea of making Raymondville “Prisonville” caught on. And now Raymondville with its windowless tents, is a Valley of Tears for yet another reason.)
Hundreds and hundreds live inside the tents, twenty three hours a day inside. I asked Jodi Goodwin, a Harlingen lawyer who joined the walk with Jay, some questions about the detainees.
Author: Do lawyers regularly help detainees learn their rights and do detainees know what to do to free themselves from the tents?
Goodwin: There are no lawyers that regularly visit the detainees to give legal rights presentations. A group of about 6 lawyers volunteered from August through December to give such presentations to the detainees, but ICE [Immigration and Customs Enforcement] cut off our access to the detainees when they found out we were able to go inside the tents to give the presentations. As far as I know, no rights presentations have been given since the second week of December of 2006. I do not believe that ICE gives the detainees information about how to free themselves from the tents. That was part of the information we used to provide during our rights presentations.
Author: I suspect there is a deliberate effort to make detainees feel like criminals, even though they have not been convicted of a crime. Do they have prison clothes, have to stand in line, get yelled at, etc.?
Goodwin: Yes, they wear prison clothes; yes, they are kept in lines; yes, they are yelled at. Actually, they are treated worse than criminals. Criminals at least have a right to representation regardless of their financial ability. Immigration detainees have no right to counsel unless they can afford to pay a lawyer themselves.
Author: I heard you say earlier that some are having trouble sleeping; any comments on how their basic needs (food, sleep, exercise, medical help) are being met?
Goodwin: I believe that basic needs such as sleep, food, exercise, medical attention are in fact not being met. My clients report being incommunicado because the phones do not work, or because they have no money to buy an overpriced phone card. My clients report insufficient amounts of food. Stale or undercooked food. Rancid milk served past the expiration dates. Weeks of waiting to see someone from the medical staff. Lights being left on 24 hours a day. No toilet paper available for days on end. And there’s much more lacking in the way of basic needs.
Author: Is there anything my readers can do to help?
Goodwin: Call or email Senators and Representatives to encourage them to pass meaningful immigration reform and to demand ICE live up to its own detention standards by treating human beings with dignity.
Part II, next week.
The following items were previously posted in the announcements section of the Texas Civil Rights Review.
Wednesday, March 28th, 5pm to 9pm: we will hold a sunset candlelight vigil at the JFK Museum located at Dealey Plaza, 411 Elm Street, Dallas.
Thursday, March 29th, 9:00am to noon: we continue our vigil in solidarity with the Hazahza family and all the imprisoned victims of ICE, at the U.S. District Courthouse, 1100 Commerce Street, Dallas.
Mirvat, Ahmed, Muhammad, Juma, and Radi Hazahza
Immigration and Customs Enforcement claims that Hutto was built to keep families together. The Hazahzas have been separated from each other since their pre-election abduction in early November, 2006. Muhammad and Juma were released from the T. Don Hutto prison camp in early February, two days before a press tour there. Hisham (who is not pictured above), Suzi, Mirvat, Ahmed, and Radi are still being held at the Rolling Plains prison camp at Haskell, Texas.
Sample Letter to ICE
Drafted by Joshua Bardavid, Esq.
For three months in a row we have set records for our site traffic in 2007. While the overall totals are surely modest by today’s internet standards, we do want to thank you for showing that you care about the issues we’ve been covering this year. Free Suzi Hazahza and all mistreated immigrants!–gm
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