Gomez-Ochoa v. Lynch et al
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-16-01646-PHX-JJT (BSB)
Loretta E Lynch, et al.,
At issue is Magistrate Judge Bridget S. Bade’s Report and Recommendation
(R&R) in this matter filed February 8, 2017 (Doc. 26). The R&R recommends that the
Court deny Carlos Gomez-Ochoa’s Amended Petition for Writ of Habeas Corpus
(Doc. 22). The R&R clearly advised Petitioner that he had fourteen days from the date of
service of a copy of the R&R to file any specific written objections. Fed. R. Civ. Pr. 72.
Petitioner filed no objections, and the time to do so is now long past. Petitioner has
therefore waived his right to de novo consideration of the issues per United States v.
Rayna-Tapia, 328 F.3d 1141, 1121 (9th Cir. 2003)(en banc), and the Court may accept the
R&R without further review. Nonetheless, the Court has conducted a review on the
merits of the issues involved. It finds that Magistrate Judge Bade’s reasoning and analysis
are correctly applied to the procedural situation.
Petitioner challenges the Immigration Judge’s (IJ’s) decisions at bond
redetermination hearings involving Petitioner in January and September 2016, arguing
that his procedural due process rights were violated at each hearing. (Doc. 22.) As Judge
Bade correctly concluded and recommended, Petitioner has failed to exhaust his
administrative remedies with respect to the September 2016 hearing, which is still on
appeal to the Board of Immigration Appeals (BIA) and it is thus not properly before this
Court. Even if Petitioner’s claim regarding the September 2016 IJ hearing were properly
exhausted, however, it, like the claim involving the January 2016 IJ hearing, would fail.
As Judge Bade set forth in the R&R, Petitioner received Rodriguez hearings, thus
satisfying the procedural due process requirements, and in those hearings the IJ set forth
multi-faceted justifications for the IJ’s rulings that properly considered not only
Petitioner’s criminal history but risk to the community and other required factors in the
calculus. The Court, for all of the above reasons, will deny and dismiss the Amended
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.
Honorable John J. Tuchi
United States District Judge
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