United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION
ABDUL
K. KALLON, UNITED STATES DISTRICT JUDGE
The
magistrate judge entered a report recommending the court deny
Richard Marvin Thompson’s motion for hearing, grant
Respondents’ motion for summary judgment, and dismiss
Thompson’s petition for writ of habeas corpus without
prejudice. Doc. 14. Thompson filed timely objections,
alleging the following: (1) no binding precedent exists
demanding INA § 1231 and its construal by Zadvydas
v. Davis, 533 U.S. 678 (2001), govern Thompson’s
removal, (2) Akinwale v. Ashcroft does not bind this
court to hold Thompson’s petition of review to the
First Circuit tolled his detention period, (3)
Thompson’s previous filings do not constitute bad faith
and should neither impugn the validity of his First Circuit
challenge nor sustain his detention, (4) Thompson’s
removal is not significantly likely in the reasonably
foreseeable future, and (5) Thompson’s detention
violates his due process rights. Doc. 17. He admits these
objections repeat arguments he made in his petition and
traverse. Id. at 5, 8. The Report and Recommendation
is due to be accepted based on Akinwale v. Ashcroft,
287 F.3d 1050 (11th Cir. 2002). However, because Thompson was
acting pro se when he composed his initial filings and his
new counsel’s articulation of his argument provides new
insights that merit further analysis, and because Thompson
raises some arguments that may benefit from more guidance by
the Eleventh Circuit, the court will consider some of the
newly articulated objections.
Thompson’s
first and second objections overlap in that they challenge
the authority of Akinwale v. Ashcroft to bind this
court. The first objection argues that because the short per
curiam opinion in Akinwale did not provide analysis
of whether § 1226 or § 1231 is appropriate for
individuals like Thompson and merely adopted the
government’s uncontested application of § 1231, it
remains an open question which of the two sections applies to
Thompson. Doc. 17 at 4-5. The second objection claims
Akinwale does not bind district courts in holding
that a petitioner’s pursuit of judicial review and
success in securing a stay of removal tolls his removal
period while the appeal is pending. Id. at 5-6. The
court agrees with the magistrate judge’s assessment
that this court is bound by Akinwale in both its
application of § 1231 and its holding in footnote 4.
See doc. 14 16-21 (finding “a PFR or a stay
stalls the § 1231 removal period, yet does not effect a
reversion of the case’s status back to §
1226”). Still, the court acknowledges that the intended
potency of Akinwale is unclear, that
Akinwale is an outlier decision among the circuits,
[1] and
that no published Eleventh Circuit decision has applied
either of the Akinwale propositions Thompson
contests.[2] As the magistrate judge demonstrates, many
district courts within the Eleventh Circuit, as well as
several unpublished Eleventh Circuit opinions, have treated
Akinwale’s use of § 1231 and footnote 4
as precedent. Doc. 14 at 18-19, 25-26. And a broad
interpretation of the footnote would toll the § 1231
detention periods of any detainee at the point when he seeks
appellate review of his removal proceedings, but a narrower
interpretation would toll the period for only those detainees
who pursue direct challenges to their removal as
opposed to collateral challenges. Doc. 14 at 19 n.9. No.
published Eleventh Circuit decisions weigh in on this issue,
leaving the breadth of the interpretation an open question
for lower courts. See Guo Xing Song v. U.S. Atty.
Gen., 516 Fed.App’x 894, 899 (11th Cir. 2013);
Gozo v. Napolitano, 309 Fed.App’x 344, 346
(11th Cir. 2009). Although this court believes
Akinwale binds it to apply the broad interpretation
and it accepts Thompson’s detention was tolled when he
filed his collateral attacks on his removal, more guidance on
this issue from the Eleventh Circuit may be warranted.
Thompson’s
third and fifth objections also overlap due to the impact his
litigation tactics will have on the success of his due
process claims. Thompson’s third claim argues he did
not pursue appellate relief in bad faith and his prior
filings should not bear on his current appeal in the First
Circuit or justify his continued detention. Doc. 17 at 7. His
fifth claim alleges his detention violates due process by
tolling his detention period while his appeal is pending, and
that the government is punishing him for seeking relief
legally available to him. Id. at 8. As an initial
matter, § 1231 states the “removal period shall be
extended . . . if the alien . . . acts to prevent [his]
removal subject to an order of removal.” 8 U.S.C.
§ 1231(a)(1)(C) (1999). In Akinwale, the
Eleventh Circuit construed “act[ing] to prevent . . .
removal” to include pursuing judicial review. 287 F.3d
at 1052 n.4. Although other circuits have held that prolonged
detention cannot be justified based solely on an
immigrant’s pursuit of “avenues of relief that
the law makes available to him, ”[3] and in the
vacated Sopo opinion, this circuit noted also that
immigrants should not be “punished for pursuing avenues
of relief and appeals, ” Sopo, 825 F.3d at
1218, and Akinwale penalizes detainees for accessing
the judicial review processes legally available to them by
construing “acts” to include any pursuit of
appellate relief, nonetheless Akinwale dictates that
the court finds that Thompson’s appeals toll his
detention. This is especially the case, where, as here, as
the magistrate judge correctly found, Thompson’s
multiple time- and venue- barred appeals likely amounted to
bad faith dilatory tactics, indicating his extended detention
was of his own making. Doc 14 at 27-28.
After
careful consideration of the record in this case, the
magistrate judge’s report, and Petitioner’s
objections, the court hereby ADOPTS the
report of the magistrate judge and ACCEPTS
his recommendations with the exception of his discussion of
Zadvydas v. Davis, doc. 14 at 29. In accordance with
the recommendation, the court finds that Petitioner’s
motion for hearing, doc. 13, is due to be
DENIED, Respondents’ motion for
summary judgment, doc. 7, is due to be
GRANTED, and the petition for writ of habeas
corpus, doc. 1, is due to be DISMISSED WITHOUT
PREJUDICE.
A
separate order will be entered.
---------
Notes:
[1] The court notes the magistrate
judge’s finding that every other circuit to consider
and rule on the matter has aligned with Thompson. Doc. 14 at
23 (citing Hechavaria v. Sessions, 891 F.3d 49, 57
(2nd Cir. 2018) (holding § 1226 properly applies to all
“immigrants who are not immediately deportable”);
Leslie v. Att’y Gen. of the U.S., 678 F.3d
265, 270 (3d Cir. 2012), abrogated in part and on other
grounds by Jennings v. Rodriguez, 138 S.Ct. 830 (2018)
(“Our review indicates that every circuit to consider
the issue has held that § 1226, not § 1231, governs
detention during a stay of removal.”);
Prieto-Romero v. Clark, 534 F.3d 1053, 1057–58
(9th Cir. 2008) (holding that “the Attorney
General’s statutory authority to detain
Prieto–Romero . . . whose removal is stayed pending the
court of appeals’ resolution of his petition for
review, must be grounded in § 1226(a)”);
Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001),
abrogated in part on other grounds by
Fernandez–Vargas v. Gonzales, 548 U.S. 30 (2006)
(holding that § 1231’s “removal
period” does “not begin until the date of the
Court’s final order”)). Two recent Supreme Court
decisions suggest that the Court would also agree with Mr.
Thompson’s reading of the statutory scheme. See
id. at 24-25 (citing Jennings, 138 S.Ct. at
838-39 and Nken v. Holder, 556 U.S. 418 (2009)).
These courts take the view that the plain language of §
1231 indicates it does not govern detainees whose removals
have been stayed by a circuit court pending judicial review.
This court agrees with this reasoning, but because it
believes the Akinwale precedent is binding, it
applies § 1231. The court would welcome further guidance
from the Eleventh Circuit on the proper reading of
§§ 1226 and 1231.
[2] See Alvarez v. U.S. Immigration
and Customs Enforcement, 818 F.3d 1194, 1215 (11th Cir.
2016) (citing Akinwale for the proposition that
“the Attorney General has no power to detain an alien
for whom there is no significant likelihood of removal in the
reasonably foreseeable future.”); Sopo v. U.S.
Attorney General, 825 F.3d 1199, 1220 n.12 (11th Cir.
2016), vacated on other grounds, 890 F.3d 952 (11th
Cir. 2018); Benitez v. Wallis, 337 F.3d 1289, 1293
n.13 (11th Cir. 2003), rev’d on other grounds,
Clark v. Martinez, 543 U.S. 371 (2005) (citing
Akinwale as an example of how passage of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA)
impacted pending deportation proceedings). In Sopo,
the Eleventh Circuit chose to forego the option of applying
Akinwale as precedent in deciding whether to apply
§ 1226 or § 1231 to a detainee. 825 F.3d at 1220
n.12. Although the Eleventh Circuit vacated Sopo and
it has no legal effect, the court may give a vacated opinion
persuasive value. Friends of Everglades v. S. Fla. Water
Mgmt. Dist., 570 F.3d 1210, 1218 (11th Cir.
2009).
[3]
Ly v. Hansen, 351 F.3d 263,
272 (6th Cir. 2003); Hechavarria, 891 F.3d at 56 n.6
(distinguishing an immigrant making use of the statutorily
permitted appeals process ...