Al-Siddiqi, Mohamed v. Achim, Deborah ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3872
MOHAMED AL-SIDDIQI,
Petitioner-Appellant,
v.
DEBORAH ACHIM, Chicago Field Office Director,
Immigration and Customs Enforcement of
Homeland Security, TODD NEHLS, Sheriff of
Dodge County, and THOMAS POLSIN,
Deputy Jail Administrator, Dodge County
Detention Center,
Respondents-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 C 728—Rudolph T. Randa, Chief Judge.
____________
ARGUED APRIL 14, 2008—DECIDED JUNE 27, 2008
____________
Before FLAUM, EVANS, and TINDER, Circuit Judges.
EVANS, Circuit Judge. Around a year and a half ago, an
immigration judge (IJ) ordered Mohamed Al-Siddiqi
released from detention upon the posting of a bond. Since
then, Al-Siddiqi has repeatedly tried, without success, to
post the bond. The Department of Homeland Security
(DHS) refused to release Al-Siddiqi, justifying under
2 No. 07-3872
various rationales its defiance of the IJ’s bond order. Al-
Siddiqi then filed this petition for a writ of habeas
corpus seeking enforcement of the bond order. The dis-
trict court denied this petition, and Al-Siddiqi appealed.
DHS’s indirect attempts to keep Al-Siddiqi detained
have contributed to a shifting procedural backdrop that
changed once again on the day we heard oral argument on
his appeal. On that day the IJ—the same one who previ-
ously ordered Al-Siddiqi released on bond—denied Al-
Siddiqi’s asylum application, granted him voluntary
departure, but ordered that he remain in custody until
he leaves the United States. This latest development
constrains us to affirm the denial of Al-Siddiqi’s habeas
petition.
Mohamed Al-Siddiqi, a 25-year-old citizen of Qatar,
came to the United States to study. For a little over two
years he attended various colleges in Madison and Mil-
waukee, Wisconsin, but in December 2006 he didn’t
maintain a full course load, resulting in the termination
of his student visa. A month later DHS issued a notice
to appear directing Al-Siddiqi to attend a removal
hearing before an IJ, which was held shortly thereafter.
The case was straightforward—Al-Siddiqi admitted that
he violated the terms of his student visa but explained
that he reduced his course load due to medical problems
and that his application for the reinstatement of his
student visa was pending. Finding Al-Siddiqi’s excuses
insufficient, the IJ ordered him removed. Al-Siddiqi
appealed to the Board of Immigration Appeals (BIA).
Al-Siddiqi has been detained since January 2007. The
same immigration officer who issued the notice to appear
determined that Al-Siddiqi should remain in custody and
informed Al-Siddiqi of his right to appeal this finding to
No. 07-3872 3
an IJ. Al-Siddiqi did appeal, and following his removal
hearing the IJ held a bond hearing to consider Al-Siddiqi’s
request. The IJ disagreed with the immigration officer’s
assessment and ordered that Al-Siddiqi be released upon
the posting of a $15,000 bond.
Al-Siddiqi’s friends tried to post this bond four times.
The first three times immigration officers refused pay-
ment based on technicalities, but each time Al-Siddiqi’s
friends and counsel remedied one deficiency, the officers
raised a different reason for refusing payment, finally
refusing payment because it was too late in the day. After
the third attempt DHS received a letter from the Federal
Bureau of Investigation (FBI), requesting that immigra-
tion officers “use all available legal recourse to prevent
the release of Al-Siddiqi . . . .” That letter—five paragraphs
long—states that the FBI “has linked Al-Siddiqi to a
network believed to facilitate the recruitment of indi-
viduals who may pose a threat to the national security[.]”
The network and Al-Siddiqi’s role in it are not identified,
nor is the potential threat to national security. To bolster
its conclusion, the FBI noted that Al-Siddiqi was re-
ceiving a failing grade in some classes and he routinely
travels outside of Milwaukee. The letter alleged other
“suspicious” activity, equally devoid of context. For
example, the FBI noted that Al-Siddiqi “tells people” that
he is from Saudi Arabia, not Qatar, but does not explain
when this misrepresentation occurred, how many times
it happened, or who these “people” are. After DHS re-
ceived this letter, Al-Siddiqi’s friends tried to post the
bond for the fourth time. DHS again refused payment.
The next day DHS revoked the IJ’s $15,000 bond order
(by what authority, we don’t know) and again determined
that Al-Siddiqi should remain in detention. Al-Siddiqi
responded to this revocation in two ways: he asked the
4 No. 07-3872
IJ for reconsideration, and he filed a petition for a writ
of habeas corpus in the United States District Court for
the Southern District of Illinois. Subsequently, the peti-
tion was transferred to the United States District Court
for the Eastern District of Wisconsin. DHS opposed Al-
Siddiqi’s motion for reconsideration, noting his poten-
tial threat to national security and providing the IJ with
the letter it received from the FBI. The IJ held another
bond hearing and rejected the government’s request to
keep Al-Siddiqi in detention, but raised the bond amount
to $60,000. Although a transcript of this hearing is not
part of the record, Al-Siddiqi’s counsel represented at
oral argument that the IJ refused to order Al-Siddiqi
detained after concluding that the FBI’s letter was insuf-
ficient to show that he was a threat to national security.
DHS immediately filed a notice to appeal the IJ’s $60,000
bond order but withdrew it two days later, the same
day the BIA affirmed Al-Siddiqi’s removal order. Al-
Siddiqi promptly petitioned this court for review of the
BIA’s affirmance and requested a stay of removal, which
we granted. Al-Siddiqi v. Gonzales, No. 07-2181 (7th Cir.
June 7, 2007). He tried again to post bond, but DHS
again refused to accept payment. After these events
transpired, Al-Siddiqi filed an amended habeas petition
and moved for summary judgment, claiming that DHS’s
refusal to honor the IJ’s $60,000 bond order was without
legal authority and violated his right to due process.
Just a few days before DHS’s response to Al-Siddiqi’s
summary judgment motion was due in the habeas case,
the government moved the BIA to reopen Al-Siddiqi’s
removal proceedings. If granted, the government’s motion
would provide the same relief Al-Siddiqi sought in his
petition for review, so he did not oppose the motion.
No. 07-3872 5
However, Al-Siddiqi informed the BIA that his non-
opposition was contingent on the enforcement of the IJ’s
order to release him on $60,000 bond. The BIA granted
the motion to reopen the removal proceedings but re-
fused to enforce the IJ’s bond order, noting that “removal
proceedings are separate from bond proceedings” and
therefore it could not reach matters concerning the bond.
DHS’s maneuver of reopening the case before the BIA
necessitated the dismissal of Al-Siddiqi’s petition for
review before this court. Al-Siddiqi v. Gonzales, No. 07-2181
(7th Cir. Nov. 20, 2007).
As soon as the motion to reopen the removal proceedings
was granted, DHS took the position that the whole
matter—both the removal proceedings and the bond
proceedings—was back to square one. Without revoking
the IJ’s bond order, DHS redid its “initial” bond deter-
mination and concluded that Al-Siddiqi should remain
in custody, filling out the same paperwork it penned
when Al-Siddiqi was first apprehended.
A couple of weeks later the district court denied Al-
Siddiqi’s petition for a writ of habeas corpus. Although
neither party raised the issue, the court concluded that
it lacked jurisdiction to hear the petition based on 8
U.S.C. § 1226(e), which shields the DHS’s discretionary
decisions regarding bond from judicial review. While
noting that § 1226(e) allows constitutional challenges to
the bond statute, it concluded that Al-Siddiqi was really
challenging the DHS’s “decision to disregard the IJ’s
order and refuse to accept the bond . . . a discretionary
decision that is not subject to review . . . .” The court also
discussed two alternative grounds for denying the peti-
tion. First, the court concluded that Al-Siddiqi could
have appealed DHS’s second “initial” bond determina-
6 No. 07-3872
tion but did not, and thus failed to exhaust his admin-
istrative remedies. Secondly, although the court con-
cluded that DHS’s refusal to accept the $60,000 bond
payment after the BIA affirmed Al-Siddiqi’s removal
order was “wrong as a matter of law,” the court nonethe-
less rejected Al-Siddiqi’s due process argument. The court
held that Al-Siddiqi’s “individual interest in personal
liberty is secondary to the potential threat posed by
alleged terrorist activity.” Al-Siddiqi appeals this decision.
Meanwhile, Al-Siddiqi’s reopened removal proceedings
marched along. Al-Siddiqi applied for asylum and with-
holding of removal, claiming that the government of
Qatar—an ally of the United States—will kill or torture
him if he is forced to return there because the FBI suspects
he has ties to terrorism. The very morning we heard oral
argument in Al-Siddiqi’s habeas appeal, the IJ denied Al-
Siddiqi’s asylum application. The IJ concluded that the
application was untimely and unsupported but granted Al-
Siddiqi the privilege of voluntarily departing the
United States. But because the IJ had “little confidence”
that Al-Siddiqi would comply with the terms of voluntary
departure, he ordered that he remain in custody until
his departure. Al-Siddiqi has appealed this decision to
the BIA, and that appeal, as of today, remains pending.
We must first determine whether we have jurisdiction
to hear this case. According to 8 U.S.C. § 1226(e), DHS’s
“discretionary judgment” regarding bond determinations
“shall not be subject to judicial review.” The parties
agree, as they must, that this section strips us of our
jurisdiction to review judgments designated as discre-
tionary but does not deprive us of our authority to review
statutory and constitutional challenges. Because this
provision contains no explicit bar to constitutional chal-
No. 07-3872 7
lenges or habeas review, the Supreme Court has held
that habeas review survives. Demore v. Kim, 538 U.S.
510, 516-17 (2003); see also Hernandez v. Gonzales, 424 F.3d
42 (1st Cir. 2005); Gonzalez v. O’Connell, 355 F.3d 1010, 1014-
15 (7th Cir. 2004). But the parties disagree over which
category Al-Siddiqi’s appeal falls into. The government
maintains that we lack jurisdiction because Al-Siddiqi
contests only DHS’s decision to ignore the IJ’s bond order
and does not raise a facial constitutional challenge to the
bond statute. But Al-Siddiqi need not take on the whole
statutory framework to raise a constitutional concern—
after all, the Constitution may be violated by the applica-
tion of a statute to a particular alien. To hold otherwise
“ignores the Supreme Court’s blanket holding in Kim
that Congress’s language in § 1266(e) was simply not
clear enough to overcome the presumption that it was
not depriving the federal courts of jurisdiction over
constitutional questions, a presumption which is even
stronger in the habeas context.” Gonzalez, 355 F.3d at 1015
(asserting jurisdiction over alien’s claim that mandatory
detention under § 1226 was unconstitutional as applied
to him); see also Hussain v. Mukasey, 510 F.3d 739, 743 (7th
Cir. 2007). Al-Siddiqi argues that DHS’s refusal to honor
the IJ’s bond order is without legal justification and violates
his right to due process; our jurisdiction to review these
claims remains intact.
Turning to the merits, we must note that the landscape
of this case has changed significantly since the district
court rendered its decision. When the district court
denied Al-Siddiqi’s habeas petition, a valid bond order
was on the books, but DHS was ignoring it. DHS con-
tends that the BIA’s order reopening Al-Siddiqi’s re-
moval proceedings invalidated the IJ’s bond order, allow-
8 No. 07-3872
ing DHS to simply redo its “initial” bond determination.
But DHS never provided support for this proposition,
which is belied by its own regulations. An alien may
appeal a bond determination made by DHS to an IJ, but
such bond proceedings are “separate and apart from,
and shall form no part of, any deportation or removal
hearing or proceeding.” 8 C.F.R. § 1003.19(d); see also
Matter of R-S-H- et al., 23 I. & N. Dec. 629, 630 n.7 (BIA
2003); In re Adeniji, 22 I. & N. Dec. 1102, 1115 (BIA 1999)
(holding that evidence presented only in an alien’s re-
moval proceeding cannot be considered during the sepa-
rate bond proceeding); Matter of Balderas, 20 I. & N. Dec.
389, 393 (BIA 1991). Not only do the regulations
separate bond and removal proceedings, but the BIA also
explicitly refused to reach matters regarding Al-Siddiqi’s
bond when reopening his case. The BIA denied Al-
Siddiqi’s request to enforce the IJ’s bond order because
it was outside the scope of the removal proceedings. To
be sure, the reopening of Al-Siddiqi’s removal pro-
ceeding restarted that matter, Bronisz v. Ashcroft, 378 F.3d
632, 637 (7th Cir. 2004), but it did not restart the unre-
lated bond proceeding or extinguish the IJ’s bond order.
But things changed when the IJ reheard Al-Siddiqi’s
case and granted him voluntary departure. Voluntary
departure entitles an alien to leave the United States at
his own expense in lieu of an order of removal. 8 U.S.C.
§ 1229c(a), (b); see Lopez-Chavez v. Ashcroft, 383 F.3d 650,
651 (7th Cir. 2004). To be eligible for this relief, Al-Siddiqi
had to show that he was a person of good moral character
for the five years immediately preceding his application
for voluntary departure and that he was not removable
on terrorist grounds. 8 U.S.C. § 1229c(b)(1)(B), (C). Thus,
by granting his application, the IJ once again rejected
No. 07-3872 9
DHS’s contention that Al-Siddiqi poses a terrorist threat.
But the IJ—the same one who previously ordered him
released on bond—ordered that Al-Siddiqi remain in
custody. The IJ concluded that Al-Siddiqi is just trying to
“prolong his stay in the United States” and had “little
confidence” that Al-Siddiqi would comply with the
terms of voluntary departure if released. And the regula-
tions governing voluntary departure applications em-
power the IJ to impose “such conditions as he or she
deems necessary to ensure the alien’s timely departure
from the United States.” 8 C.F.R. § 1240.26(c)(3).
Al-Siddiqi tries to avoid the impact of the IJ’s new
order by repeating that removal proceedings should
“form no part of” the bond proceedings, 8 C.F.R.
§ 1003.19(d), therefore making the IJ’s custody determina-
tion—made within the context of Al-Siddiqi’s removal
proceeding—ineffectual. True, an IJ’s review of DHS’s
bond determination is a distinct proceeding from an
alien’s underlying removal proceeding. But here the IJ
ordered Al-Siddiqi detained pursuant to his right to
impose conditions on Al-Siddiqi’s voluntary departure
order, 8 U.S.C. § 1229c(a), (b); 8 C.F.R. § 1240.26(c)(3), not
under his authority to review DHS’s bond determinations.
Voluntary departure applications, unlike the review of
DHS’s bond decisions, have routinely been decided dur-
ing the underlying removal proceeding. See, e.g., Yun
Jian Zhang v. Gonzales, 495 F.3d 773, 775-76 (7th Cir. 2007);
Dababneh v. Gonzales, 471 F.3d 806, 808 (7th Cir. 2006); Pede
v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006). Now Al-
Siddiqi remains in custody not because DHS refuses to
honor the IJ’s former bond order, but because the IJ has
determined that he should remain in custody as a condi-
tion of his voluntary departure.
10 No. 07-3872
While we affirm the denial of Al-Siddiqi’s habeas peti-
tion, we do not endorse DHS’s less than forthright
efforts to keep Al-Siddiqi detained. DHS, dissatisfied
with the IJ’s bond order, was far from powerless to con-
test it. It could have appealed the IJ’s bond order. 8
C.F.R. § 236.1(d)(3); id. at § 1003.19(f). It could have re-
voked the order, triggering another round of appeals to
the IJ and BIA. 8 U.S.C. § 1226(b); 8 C.F.R. § 236.1(d)(1);
id. at § 1003.19(a), (f). And that’s not all. If DHS sus-
pected that Al-Siddiqi posed a threat to national security,
it could have sought his detention as a suspected terrorist.
8 U.S.C. §§ 1226(c)(1)(D), 1226a. Instead, DHS flouted
the IJ’s order and refused to follow its own rules. It is not
clear why DHS dodged its own regulations, although
at oral argument counsel stated that DHS declined to seek
Al-Siddiqi’s detention as a terrorist alien pursuant to
8 U.S.C. §§ 1226(c)(1)(D), 1226a, because that’s a “serious
charge” that requires “serious evidence.” The IJ agreed
with that principle and found the brief letter from the
FBI lacking. DHS’s regulations empower him to make
that determination, 8 C.F.R. § 236.1(d)(1); see also 8 C.F.R.
§ 1003.19(a); it was not for DHS to second-guess that
determination through the back door. Nevertheless, the
district court’s order denying Al-Siddiqi’s petition for
a writ of habeas corpus is AFFIRMED.
USCA-02-C-0072—6-27-08