Wilson I. Ichich Xo v. James A. Daley, et al.

Summary

The United States District Court for the Eastern District of Kentucky grants Wilson Ichich Xo’s petition for a writ of habeas corpus under 28 U.S.C. § 2241. The court holds that 8 U.S.C. § 1231 does not govern because Xo has not been ordered removed, and concludes that his detention pending removal proceedings is governed by 8 U.S.C. § 1226 rather than the mandatory-detention provisions of § 1225(b)(2). The court determines that Xo is entitled to request a bond hearing before an immigration judge.

Holdings

1. Section 1231(a) did not govern Ichich Xo's detention because he had not been issued a final order of removal.
2. Because Ichich Xo was already present in the United States, had been arrested and detained by ICE, and was awaiting removal proceedings rather than seeking admission, his detention was governed by 8 U.S.C. § 1226(a), not mandatory detention under § 1225(b)(2)(A).
3. Detaining Ichich Xo without an individualized custody or bond hearing violated the Fifth Amendment, and he was entitled to an individualized custody determination.
4. The TVPRA did not require Ichich Xo's immediate release or invalidate his detention because he was twenty-one years old and therefore no longer an unaccompanied alien child covered by 8 U.S.C. § 1158(b)(3)(C).

Questions Presented

1. Whether 8 U.S.C. § 1231(a)(6), governing detention after a final order of removal, applied to Ichich Xo's detention.
2. Whether detention pending removal proceedings was governed by the mandatory-detention provision in 8 U.S.C. § 1225(b)(2)(A) or the bond-hearing framework in 8 U.S.C. § 1226(a).
3. Whether detention without an individualized bond hearing violated Ichich Xo's due-process rights under the Fifth Amendment.
4. Whether Ichich Xo was entitled to attorney's fees and costs under the Equal Access to Justice Act at that stage of the proceedings.

Disposition

writ_granted