Gomez-Ochoa v. Lynch et al

Filing 27

ORDER accepting the 26 Report and Recommendation of Magistrate Judge Bade. IT IS ORDERED denying and dismissing the 22 Amended Petition in this matter and instructing the Clerk to close the matter. See document for details. Signed by Judge John J Tuchi on 03/06/2017. (ATD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Gomez-Ochoa,
Petitioner,

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ORDER

v.

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No. CV-16-01646-PHX-JJT (BSB)

Loretta E Lynch, et al.,

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Respondents.

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At issue is Magistrate Judge Bridget S. Bade’s Report and Recommendation

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(R&R) in this matter filed February 8, 2017 (Doc. 26). The R&R recommends that the

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Court deny Carlos Gomez-Ochoa’s Amended Petition for Writ of Habeas Corpus

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(Doc. 22). The R&R clearly advised Petitioner that he had fourteen days from the date of

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service of a copy of the R&R to file any specific written objections. Fed. R. Civ. Pr. 72.

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Petitioner filed no objections, and the time to do so is now long past. Petitioner has

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therefore waived his right to de novo consideration of the issues per United States v.

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Rayna-Tapia, 328 F.3d 1141, 1121 (9th Cir. 2003)(en banc), and the Court may accept the

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R&R without further review. Nonetheless, the Court has conducted a review on the

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merits of the issues involved. It finds that Magistrate Judge Bade’s reasoning and analysis

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are correctly applied to the procedural situation.

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Petitioner challenges the Immigration Judge’s (IJ’s) decisions at bond

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redetermination hearings involving Petitioner in January and September 2016, arguing

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that his procedural due process rights were violated at each hearing. (Doc. 22.) As Judge

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Bade correctly concluded and recommended, Petitioner has failed to exhaust his

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administrative remedies with respect to the September 2016 hearing, which is still on

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appeal to the Board of Immigration Appeals (BIA) and it is thus not properly before this

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Court. Even if Petitioner’s claim regarding the September 2016 IJ hearing were properly

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exhausted, however, it, like the claim involving the January 2016 IJ hearing, would fail.

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As Judge Bade set forth in the R&R, Petitioner received Rodriguez hearings, thus

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satisfying the procedural due process requirements, and in those hearings the IJ set forth

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multi-faceted justifications for the IJ’s rulings that properly considered not only

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Petitioner’s criminal history but risk to the community and other required factors in the

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calculus. The Court, for all of the above reasons, will deny and dismiss the Amended

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Petition.

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IT IS ORDERED denying and dismissing the Amended Petition in this matter
(Doc. 22) and instructing the Clerk to close the matter.
Dated this 6th day of March, 2017.

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Honorable John J. Tuchi
United States District Judge

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