Garcia v. Kane

Filing 30

AMENDED REPORT AND RECOMMENDATION TO CORRECT JUDGE ASSIGNMENT re 28 MOTION to Reopen Case MOTION for Accept Motion for Enforcement of Judgment :. Signed by Magistrate Judge Jacqueline J Marshall on 12/02/09. (LMF, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) Petitioner, ) ) v. ) ) Katrina Kane, et al., ) ) ) Respondents. ______________________________________ ) Fernando Miguel Garcia, CV 07-1289-PHX-DGC (JJM) SUPPLEMENTAL REPORT AND RECOMMENDATION (Amended to Correct Judge Assignment)

Pending before the Court are Petitioner's second Motion to Reopen [Doc. No. 28]. Petitioner's first Motion to Reopen was denied without prejudice based on his failure to establish that he had exhausted his administrative remedies by appealing his bond determination to the Board of Immigration Appeals [Doc. No. 27]. With the current motion, Petitioner has submitted a copy of the BIA's order dismissing his appeal and he has thus established that he has exhausted his administrative remedies. Motion to Reopen, ex. D. Nevertheless, for the reasons explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, deny the motion to reopen. I. BACKGROUND Petitioner is a native and citizen of El Salvador whose status was adjusted to that of a lawful permanent resident on January 29, 1990. On March 17, 2005, the INS charged Petitioner with removability pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i), as having been "after admission, . . . convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . ." On July 5, 2005, after a hearing, an Immigration Judge ("IJ")

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

denied Petitioner's applications for asylum, withholding of removal, relief under the Convention Against Torture, and Cancellation of Removal, and ordered Petitioner's removal from the United States. On July 22, 2005, Petitioner filed a timely notice of appeal, appealing the IJ's July 5, 2005, decision. On November 30, 2005, the Board of Immigration Appeals ("BIA") affirmed the IJ decision and dismissed Petitioner's appeal. On December 16, 2005, in the United States Court of Appeals for the Ninth Circuit, Petitioner filed a petition for review and a motion for a stay of removal. (Garcia v. Holder, No. 05-77173 (9th Cir. filed December 16, 2005).) On December 27, 2005, Petitioner filed a motion to reconsider with the BIA. (Ex. 13.) On March 27, 2006, pursuant to General Order 6.4(c)(1)(3), the Ninth Circuit granted a temporary stay of removal. Garcia v. Holder, No. 05-77173 (9th Cir.). As of the date of this report and recommendation, Petitioner's appeal remains pending at the Ninth Circuit. On July 2, 2007, Petitioner instituted this action by filing a Petition for Writ of Habeas Corpus. Docket No. 1. By Order dated April 29, 2009, the District Court adopted the recommendation of the Magistrate Judge that the petition be granted and ordered that Respondents provide a hearing to Petitioner before an IJ with the power to grant Petitioner bail unless Petitioner was determined to be a flight risk or a danger to the community. Docket No. 21. On May 27, 2009, Respondents filed a notice that an IJ had conducted the ordered bond hearing and granted Petitioner release on a bond of $40,000. Docket No. 23. On July 6, 2009, Petitioner filed a Motion for Enforcement of Judgement, and on October 6, 2009, a Motion to Reopen. Docket Nos. 24 & 26. Those motions were denied by order dated October 21, 2009, based on Petitioner's apparent failure to exhaust his administrative remedies by appealing the IJ's decision to the BIA. Docket No. 27. In the instant motion, Petitioner has attached the adverse ruling of the BIA, dated August 28, 2009, and requests that the Court consider the arguments raised in his first motion to reopen. As the resolution of this motion will not be based on his failure to exhaust his

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

administrative remedy, but will be with prejudice and dispositive of his case, the Magistrate Judge will address Petitioner's arguments by Report and Recommendation. II. DISCUSSION In the motion to reopen, Petitioner asserts that Immigration and Customs Enforcement ("ICE")"has failed, as a matter of law, to prove flight risk or a danger to the community pursuant to this Court's order," and "abused its discretion in imposing the high bond of $40,000 . . . ." Petitioner also asserts that "the IJ shifted the burden to the Petitioner to prove that he is not a flight risk, in essence, to prove a negative," in violation of his due process rights. In its order dismissing Petitioner's appeal, the BIA reviewed the IJ's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard provided in 8 C.F.R. § 1003.1(d)(3)(i), and reviewed the remaining issues of law, discretion and judgment de novo pursuant to 8 C.F.R. § 1003.1(d)(3)(ii). Applying these standards, the BIA explained: We have considered the respondent's contentions on appeal. Nonetheless, we find that the record supports the Immigration Judge's determination and, thus, it will be affirmed for the reasons stated by the Immigration Judge in the June 26, 2009, memorandum supporting the May 21, 2009, bond order. Docket No. 28, Ex. D. The Ninth Circuit has held that an alien had the right to "contest the necessity of his detention before a neutral decision maker and an opportunity to appeal the determination to the BIA." Prieto-Romero v. Clark, 534 F.3d 1053, 1066 (2008) (citing 8 C.F.R. § 236.1(d)). Here, the record presented by Petitioner establishes that he was provided a bond hearing and was in fact granted relief. Thus, he has been afforded the required opportunity to contest the necessity of his detention and he prevailed. The IJ found that he merited bond, and that was the relief he sought in his original habeas petition. Now, however, Petitioner asserts that the IJ "abused is discretion in imposing the high bond of $40,000" and requests that he "be released on his own recognizance without cash
3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

bond." Docket No. 25, p. 2. However, the applicable statute does not provide for review of the bond amount set by the IJ. The pertinent portion of 8 U.S.C. § 1226 provides: "The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." 8 U.S.C. § 1226(e). Just as the petitioner in Prieto-Romero did, Petitioner relies on Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002), where the Ninth Circuit indicated that "serious questions may arise concerning the reasonableness of the amount of the bond if it has the effect of preventing an alien's release." However, in Prieto-Romero, the Ninth Circuit explained that its statement in Doan is not inconsistent with section 1226(e), "because an alien who contends that an unreasonable bond amount precludes her release from detention that is statutorily unauthorized does not challenge the `Attorney General's exercise of discretion[, but rather] the extent fo the Attorney General's authority' under the Immigration and Nationality Act, which is not a matter of discretion, and therefore a fit subject for judicial review." Prieto Romero, 534 F.3d at 1067 (citations omitted). As was the case in PrietoRomero, Petitioner's detention is not inconsistent with the implicit statutory limitation announced in Zadvydas, he remains lawfully detained under § 1226(a), and Doan does not license [the courts] to review the reasonableness of the amount of bond, even if [the Petitioner] cannot afford to post it. Id. As such, the Ninth Circuit, applying section 1226(e) has concluded that the courts have no authority to entertain a challenge to the IJ's "discretionary assessment of the bond amount required to secure [Petitioner's] presence at removal in the event that his petition for review is denied." Id. .... .... ....

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

RECOMMENDATION Based on the foregoing, the Magistrate Judge RECOMMENDS that the District

Court, after its independent review, deny Petitioner's second Motion to Reopen [Doc. No. 28]. This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. If any objections are filed, this action should be designated case number: CV 07-1289-PHXDGC. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). DATED this 2nd day of December, 2009.

5