Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 C 728-Rudolph T. Randa, Chief Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before FLAUM, EVANS, and TINDER, Circuit Judges.
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 various rationales its defiance of the IJ's bond order. AlSiddiqi then filed this petition for a writ of habeas corpus seeking enforcement of the bond order. The district 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 previously ordered Al-Siddiqi released on bond-denied AlSiddiqi'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 Milwaukee, 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 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 payment 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 immigration 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 individuals 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 receiving 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 received 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 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 petition was transferred to the United States District Court for the Eastern District of Wisconsin. DHS opposed AlSiddiqi's motion for reconsideration, noting his potential 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 insufficient 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. AlSiddiqi 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.
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 refused 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 determination 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 AlSiddiqi'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 petition. First, the court concluded that Al-Siddiqi could have appealed DHS's second "initial" bond determination but did not, and thus failed to exhaust his administrative remedies. Secondly, although the court concluded that DHS's refusal to accept the $60,000 bond payment after the BIA affirmed Al-Siddiqi's removal order was "wrong as a ...