Tapia v. DeRosa

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION - We accept the recommended decision of the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). (Doc. 20 ). Accordingly, IT IS ORDERED DISMISSING the petition for writ of habeas corpus (doc. 1 ). Signed by Senior Judge Frederick J Martone on 12/11/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leonardo Tapia, Jr.,
Petitioner,

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vs.

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C. DeRosa, Warden,
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Respondent.
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No. CV-12-02393-PHX-FJM
ORDER

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Before the court is petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C.

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§ 2241 (doc. 1), respondent’s response (doc. 14), and the Report and Recommendation of the

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United States Magistrate Judge recommending that the petition be denied for failure to

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exhaust administrative remedies (doc. 20). Petitioner did not file objections to the Report

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and Recommendation and the time for doing so has expired.

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Petitioner claims that he is a United States citizen being unlawfully detained by

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Immigration and Customs Enforcement. An immigration law judge concluded that the

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Government had established petitioner’s alienage as a Mexican citizen by “clear, convincing,

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and unequivocal evidence,” and ordered petitioner subject to removal. The immigration

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judge denied petitioner’s motion for reconsideration. On October 31, 2013, the Board of

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Immigration Appeals ordered petitioner’s case remanded for further proceedings, granting

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petitioner the opportunity to submit additional evidence that is relevant to his claim of United

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States citizenship. The Magistrate Judge recommends that, under the doctrine of prudential

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exhaustion, petitioner should be required to exhaust his administrative remedies before

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seeking habeas relief. Petitioner did not object to this recommendation.

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We accept the recommended decision of the Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1). (Doc. 20). Accordingly, IT IS ORDERED DISMISSING the petition for writ

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of habeas corpus (doc. 1).

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DATED this 11th day of December, 2013.

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