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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Allen Rod Tongco Andrade
Petitioner,

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vs.
Janet Napolitano, et al.,
Respondents.

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No. CV-12-01155-PHX-PGR (MEA)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Aspey (Doc. 14) notwithstanding that no party has filed any objections to the

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Report and Recommendation, the Court finds that the Magistrate Judge correctly

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determined that this habeas action, filed pursuant to 28 U.S.C. § 2241(c)(3) on May

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30, 2012, should be dismissed without prejudice because the petitioner filed it prior

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to exhausting his administrative remedies.

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The petitioner, a citizen of the Philippines who is the subject of a removal

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order, has been in immigration custody since late 2010; his appeal of the removal

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order is currently before the Ninth Circuit. The petitioner alleges in his habeas

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petition that he is being illegally detained because he has not been given a hearing

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on his eligibility for release on bond and that his due process rights are being

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violated due to a statutory requirement mandating his detention without any

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possibility of being released on bond pending a final decision in his removal

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proceeding.

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The respondents argue in part that the petition is moot because the petitioner

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has in fact received two bond hearings before an immigration judge, one on January

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5, 2012, prior to the filing of this action, and one on June 14, 2012, after the filing of

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this action. In both cases, the immigration judge determined that no change in the

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petitioner’s custody status was warranted because the petitioner is a flight risk and

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a danger to the community. The respondents further argue that even if this action

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is not moot, due to the petitioner’s arguments that he is entitled to be released on

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bond because the government failed to properly establish that he is dangerous or

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a flight risk, the petition should be dismissed on the ground that the petitioner has

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not exhausted his administrative remedies regarding the immigration judge’s

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decisions that the petitioner should remain detained.

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The Court need not resolve the mootness issue because the Court agrees

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with the Magistrate Judge that the petitioner has not exhausted his administrative

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remedies with regard to either detention hearing order inasmuch as the record

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establishes that the petitioner did not appeal the first order to the Bureau of

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Immigration Appeals, and that while he did appeal the second order to the BIA, that

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appeal was still pending before the BIA when this action was commenced.

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Under the prudential exhaustion rule applicable to this action, the petitioner

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may not pursue habeas relief in this Court challenging the propriety of his continued

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detention until after the BIA has rendered its decision on his administrative appeal.

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Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). “When a petitioner does

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not exhaust administrative remedies, a district court ordinarily should either dismiss

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the petition without prejudice or stay the proceedings until the petitioner has

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exhausted remedies, unless exhaustion is excused.” Id. The Court agrees with the

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Magistrate Judge that dismissal is warranted here because the petitioner has not

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established any grounds for staying this action or excusing the exhaustion

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requirement.1 The Court further agrees with the Magistrate Judge that no ruling on

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the issuance of a certificate of appealability is required because this action arises

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under 28 U.S.C. § 2241. Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc.14) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. §

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2241 for a Writ of Habeas Corpus by a Person in Federal Custody is denied and that

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this action is dismissed without prejudice. The Clerk of the Court shall enter

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judgment accordingly.

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DATED this 22nd day of April, 2013.

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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.
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