Cortes Herrera v. United States Attorney General

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED that Magistrate Judge Bade's R&R (Doc. 23 ) is accepted and adopted as the order of this Court. IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U .S.C. § 2241 (Doc. 21 ) is GRANTED to the extent that Petitioner is entitled to a bond hearing pursuant to Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). A bond hearing before an Immigration Judge shall be arranged and held promptly. The Amended Petition is otherwise DENIED. (See document for further details). Signed by Judge Diane J Humetewa on 7/10/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ana Silvia Cortes Herrera,
Petitioner,

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ORDER

v.

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No. CV-16-03931-PHX-DJH

United States Attorney General,

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Respondent.

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This matter is before the Court on Petitioner’s Amended Petition for Writ of

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Habeas Corpus (the "Amended Petition") pursuant to 28 U.S.C. § 2241 (Doc. 21) and the

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Report and Recommendation (“R&R”) issued by United States Magistrate Judge Bridget

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S. Bade (Doc. 23). Respondent filed an Answer to Amended Petition (Doc. 22) and

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argues that Petitioner’s claims for relief should be denied.

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Petitioner is a native and citizen of Mexico who, sometime after March 2007,

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entered the United States without permission. (Doc. 23 at 1). Upon completion of

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proceedings in the Immigration Court, Petitioner was removed from the United States on

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November 23, 2011. (Doc. 23 at 2). Petitioner subsequently re-entered the United States

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in January 2015 and was apprehended by United States Border Patrol agents. (Id.). After

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demonstrating a reasonable fear of persecution or torture if returned to Mexico, Petitioner

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was referred to an Immigration Judge to seek withholding of removal and relief under the

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Convention Against Torture. (Id.). Petitioner has been in custody during the pendency

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of the withholding of removal proceedings.

(Id.).

On September 7, 2016, the

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Immigration Judge held a hearing but denied relief on the merits of Petitioner’s claims for

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withholding of removal and relief under the Convention Against Torture. (Id. at 3).

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Petitioner appealed the decision to the Board of Immigration Appeals (“BIA”) and that

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appeal is pending. (Id.).

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Petitioner raises four grounds for relief in her Amended Petition. (Doc. 23 at 3).

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In Ground One, Petitioner challenges the underlying order of removal, claiming that she

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should not have been subject to removal based on a prior criminal conviction. (Id.). In

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Grounds Two, Three, and Four, Petitioner challenges the decision to keep her in custody

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while her appeal to the BIA is pending. (Id.). She claims that her continued detention

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violates her right to due process, and that she is not a flight risk or danger to the

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community. (Id.). Petitioner therefore seeks release from custody and dismissal of her

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removal proceedings. (Id. at 3-4).

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Judge Bade recommends that Ground One be dismissed because the district court

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is without jurisdiction to review a final order of removal. (Doc. 23 at 4). As Judge Bade

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explains, the exclusive means for judicial review of an order of removal is through the

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court of appeals.

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jurisdiction to review Petitioner’s removal order. See Iasu v. Smith, 511 F.3d 881, 888

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(9th Cir. 2007). The Court agrees with Judge Bade’s analysis and recommendation.

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Ground One will therefore be dismissed for lack of jurisdiction.

See 8 U.S.C. § 1252(a)(5).

This Court therefore lacks habeas

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Regarding Grounds Two through Four, Judge Bade determined that Petitioner is

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detained pursuant to 8 U.S.C. § 1231(a). Applying the decision in Diouf v. Napolitano,

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634 F.3d 1081 (9th Cir. 2011) in which the Ninth Circuit addressed prolonged detention

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under that statute, and several other decisions in this circuit that followed Diouf, Judge

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Bade concluded that Petitioner is entitled to a bond hearing. After reviewing Judge

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Bade’s analysis, this Court agrees with Judge Bade’s recommendation.

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Judge Bade advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "may result in the District Court’s acceptance of

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the Report and Recommendation without further review.” (Doc. 23 at 7) (citing United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Petitioner filed an

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Objection (Doc. 24) on May 22, 2017.

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information in the factual background provided in the R&R. Specifically, Petitioner

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claims she was not arrested by the Border Patrol in 2007, among other factual disputes.

Her only objection, however, is to certain

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Petitioner does not object to Judge Bade’s analysis and recommendation to

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dismiss Ground One but grant relief under the remaining counts. Absent any objections

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with respect to those recommendations, the Court is not required to review them. See

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Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal

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Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all

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. . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121

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(same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of

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the magistrate judge’s disposition that has been properly objected to.”). Nonetheless, as

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noted above, the Court has reviewed Judge Bade’s analysis and agrees with her

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recommendations. The Court will, therefore, accept the R&R and grant the Amended

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Petition in part. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the magistrate

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judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Bade's R&R (Doc. 23) is accepted and

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adopted as the order of this Court.

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IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2241 (Doc. 21) is GRANTED to the extent that

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Petitioner is entitled to a bond hearing pursuant to Diouf v. Napolitano, 634 F.3d 1081

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(9th Cir. 2011). A bond hearing before an Immigration Judge shall be arranged and held

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promptly. The Amended Petition is otherwise DENIED.

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Dated this 10th day of July, 2017.

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Honorable Diane J. Humetewa
United States District Judge
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