Andrade v. Napolitano et al

Filing 18

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 14 . ORDER that the petitioner's Petition Under 28:2241 for a Writ of Habeas Corpus is denied and that this action is dismissed without prejudice. The Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 4/22/13. (TLJ)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Allen Rod Tongco Andrade Petitioner, 11 12 13 14 15 vs. Janet Napolitano, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV-12-01155-PHX-PGR (MEA) ORDER 16 Having reviewed de novo the Report and Recommendation of Magistrate 17 Judge Aspey (Doc. 14) notwithstanding that no party has filed any objections to the 18 Report and Recommendation, the Court finds that the Magistrate Judge correctly 19 determined that this habeas action, filed pursuant to 28 U.S.C. § 2241(c)(3) on May 20 30, 2012, should be dismissed without prejudice because the petitioner filed it prior 21 to exhausting his administrative remedies. 22 The petitioner, a citizen of the Philippines who is the subject of a removal 23 order, has been in immigration custody since late 2010; his appeal of the removal 24 order is currently before the Ninth Circuit. The petitioner alleges in his habeas 25 petition that he is being illegally detained because he has not been given a hearing 26 on his eligibility for release on bond and that his due process rights are being 1 violated due to a statutory requirement mandating his detention without any 2 possibility of being released on bond pending a final decision in his removal 3 proceeding. 4 The respondents argue in part that the petition is moot because the petitioner 5 has in fact received two bond hearings before an immigration judge, one on January 6 5, 2012, prior to the filing of this action, and one on June 14, 2012, after the filing of 7 this action. In both cases, the immigration judge determined that no change in the 8 petitioner’s custody status was warranted because the petitioner is a flight risk and 9 a danger to the community. The respondents further argue that even if this action 10 is not moot, due to the petitioner’s arguments that he is entitled to be released on 11 bond because the government failed to properly establish that he is dangerous or 12 a flight risk, the petition should be dismissed on the ground that the petitioner has 13 not exhausted his administrative remedies regarding the immigration judge’s 14 decisions that the petitioner should remain detained. 15 The Court need not resolve the mootness issue because the Court agrees 16 with the Magistrate Judge that the petitioner has not exhausted his administrative 17 remedies with regard to either detention hearing order inasmuch as the record 18 establishes that the petitioner did not appeal the first order to the Bureau of 19 Immigration Appeals, and that while he did appeal the second order to the BIA, that 20 appeal was still pending before the BIA when this action was commenced. 21 Under the prudential exhaustion rule applicable to this action, the petitioner 22 may not pursue habeas relief in this Court challenging the propriety of his continued 23 detention until after the BIA has rendered its decision on his administrative appeal. 24 Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). “When a petitioner does 25 not exhaust administrative remedies, a district court ordinarily should either dismiss 26 -2- 1 the petition without prejudice or stay the proceedings until the petitioner has 2 exhausted remedies, unless exhaustion is excused.” Id. The Court agrees with the 3 Magistrate Judge that dismissal is warranted here because the petitioner has not 4 established any grounds for staying this action or excusing the exhaustion 5 requirement.1 The Court further agrees with the Magistrate Judge that no ruling on 6 the issuance of a certificate of appealability is required because this action arises 7 under 28 U.S.C. § 2241. Therefore, 8 9 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc.14) is accepted and adopted by the Court. 10 IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. § 11 2241 for a Writ of Habeas Corpus by a Person in Federal Custody is denied and that 12 this action is dismissed without prejudice. The Clerk of the Court shall enter 13 judgment accordingly. 14 DATED this 22nd day of April, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 1 To the extent that the petitioner has now exhausted his administrative remedies, he may file a new habeas action challenging the BIA’s decision denying bond. Leonardo, at 1161. -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?