Fuentes-Barnett v. Sessions et al

Filing 7

ORDER - Respondents Osuna and Phelps are dismissed without prejudice. The Clerk of Court must serve a copy of the Summons, the Petition (Doc. 1 ), Motion (Doc. 5 ), and this Order upon the United States Attorney for the District of Arizona by ce rtified mail addressed to the civil process clerk at the office of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court must also send by certified mail a copy of the Summons, the Petit ion, and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondents pursuant to Rule 4(i)(2) of the Federal Rules of Civil Procedure. This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (See document for further details). Signed by Judge David G Campbell on 3/31/17. (LAD)

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1 2 SC WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Obed Fuentes-Barnett, No. CV 17-00858-PHX-DGC (JZB) Petitioner, 10 11 v. 12 Jeff B. Sessions, et al., ORDER Respondents. 13 14 15 Petitioner Obed Fuentes-Barnett, A#206-103-051, filed through counsel a Petition 16 Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody 17 (Doc. 1) and has paid the $5.00 filing fee. Petitioner shortly thereafter filed a motion for 18 a temporary restraining order or a preliminary injunction (“Motion”) (Doc. 5). The Court 19 will require Respondents Sessions, Kelly, and Lucero to answer the § 2241 Petition and a 20 response to the Motion. 21 I. Petition 22 In his Petition, Petitioner names as Respondents: Attorney General Jeff B. 23 Sessions; Secretary of the Department of Homeland Security John F. Kelly; Executive 24 Office for Immigration Review Director Juan P. Osuna; Immigration and Customs 25 Enforcement (ICE) Phoenix Field Office Director Enrique Lucero; and United States 26 Immigration Judge (IJ) Richard Phelps. 27 Petitioner is a native and citizen of Mexico. Petitioner most recently entered the 28 United States on May 20, 2015. In July 2016, DHS sought to reinstate Petitioner’s prior TERMPSREF 1 order of removal under § 241(a)(5) of the Immigration and Nationality Act (INA). 2 (Doc. 1-1 at 1, Ex. A.) Petitioner expressed fear of returning to Mexico and was detained 3 by ICE for a Reasonable Fear Interview by the United States Citizenship and 4 Immigration Services’ Asylum Office, pursuant to 8 C.F.R. §§ 208.2, 208.30, and 208.31. 5 Reinstatement of Petitioner’s previous removal order was suspended. Petitioner received 6 a positive reasonable fear determination and was referred to the Immigration Court in 7 Eloy, Arizona, where he applied for Withholding of Removal and relief under the United 8 Nations Convention Against Torture (CAT). An Individual Calendar Hearing (merits 9 hearing) is scheduled for July 18, 2017. (Doc. 1-3 at 2, Ex. C.) 10 On January 24, 2017, Petitioner filed a motion for bond redetermination in the 11 Immigration Court. (Doc. 1-4 at 2-22, Ex. D.) On January 30, 2017, the Immigration 12 Judge (IJ) found that “[a]pplicant is in Withholding Only proceedings” and that the IJ 13 lacked jurisdiction to consider Petitioner’s release on bond. (Doc. 1-5, Ex. E.) Petitioner 14 remains in DHS custody as a result. 15 Petitioner contends that he is in “Withholding-Only Proceedings” before the 16 Immigration Court and has been detained longer than six months under the authority of 17 either 8 U.S.C. § 1236(a) or 8 U.S.C. § 1231(a). Petitioner requested a bond hearing 18 under Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015). Petitioner 19 states the IJ denied the request, “reasoning that the holding in Rodriguez III does not 20 apply in the District of Arizona and does not apply to individuals whose prior orders of 21 removal have been reinstated pursuant to 8 U.S.C. § 1231(a)(5).” 22 Petitioner asks that this Court find that “the holding in Rodriguez III applies to aliens 23 whose orders have been reinstated under 8 U.S.C. § 1231(a)(5), and applies to all aliens 24 detained in the Ninth Circuit.” (Id. at 3.) Petitioner further asks the Court to “order 25 Respondents to release Petitioner, or to provide him with a proper bond hearing—where 26 the Immigration Judge must consider whether Petitioner is a danger to the community or 27 flight risk—at the earliest possible opportunity.” (Id.) 28 TERMPSREF (Doc. 1 at 2.) The Court will Order Respondents Sessions, Kelly, and Lucero to answer the -2- 1 § 2241 Petition and respond to the Motion. 2 II. Dismissal of Defendants Osuna and Phelps 3 In Rumsfeld v. Padilla, 542 U.S. 426 (2004), the United States Supreme Court 4 held that the proper respondent to a habeas petition challenging a petitioner’s present 5 physical confinement is “the warden of the facility where the prisoner is being held, not 6 the Attorney General or some other remote supervisory official.” 542 U.S. at 435. The 7 Supreme Court expressly declined, however, to resolve whether this rule, known as the 8 “immediate custodian rule,” applies to petitions filed by aliens detained pending 9 deportation. Id. at 435 n.8. 10 Prior to Padilla, the Ninth Circuit declined to apply the immediate custodian rule 11 in a § 2241 petition filed by an immigration detainee. Armentero v. INS, 340 F.3d 1058, 12 1073 (9th Cir. 2003) (“Armentero I”). The Ninth Circuit concluded that the Attorney 13 General and the Secretary of Homeland Security were proper respondents, stating that 14 “the most appropriate respondent to petitions brought by immigration detainees is the 15 individual in charge of the national government agency under whose auspices the alien is 16 detained.” Id. at 1071. After Padilla was decided, the Ninth Circuit granted a petition 17 for rehearing in Armentero I and withdrew its original opinion. Armento v. INS, 382 F.3d 18 1153 (9th Cir. 2004). Subsequently, the Ninth Circuit dismissed the case on other 19 grounds because the petitioner had absconded. Armentero v. INS, 412 F.3d 1088 (9th 20 Cir. 2005) (“Armentero II”). Judge Berzon, in dissent, indicated that she would reaffirm 21 the holding in Armentero I. Armentero II, 412 F.3d at 1090. There is no other Ninth 22 Circuit authority addressing this specific issue. 23 In the absence of any Ninth Circuit authority precluding Petitioner from naming 24 the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field 25 Office Director as Respondents, the Court will require these Respondents to answer the 26 Petition and will not dismiss the Petition for failure to name a proper respondent at this 27 stage of the proceedings. See Rivera v. Holder, 307 F.R.D. 539, 544 n.1 (W.D. Wash. 28 2015) (declining to apply immediate custodian rule in immigration context and noting TERMPSREF -3- 1 that the Attorney General, Secretary of Homeland Security, and ICE Field Office 2 Director had been appellants/defendants in a recent Ninth Circuit case where a habeas 3 petitioner challenged his bond hearing); Bogarin-Flores v. Napolitano, 2012 WL 4 3283287, at *2 (S.D. Cal. Aug. 10, 2012) (finding Attorney General and Secretary of 5 Homeland Security were proper respondents in § 2241 petition seeking immediate release 6 from ICE detention). The Court will, however, dismiss Respondents Osuna and Phelps 7 because the rationale articulated in Armentero I would not extend to these Respondents. 8 IT IS ORDERED: 9 (1) Respondents Osuna and Phelps are dismissed without prejudice. 10 (2) The Clerk of Court must serve a copy of the Summons, the 11 Petition (Doc. 1), Motion (Doc. 5), and this Order upon the United States Attorney for the 12 District of Arizona by certified mail addressed to the civil process clerk at the office of 13 the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil 14 Procedure. The Clerk of Court must also send by certified mail a copy of the Summons, 15 the Petition, and this Order to the United States Attorney General pursuant to Rule 16 4(i)(1)(B) and to Respondents pursuant to Rule 4(i)(2) of the Federal Rules of Civil 17 Procedure. 18 (3) Respondents Sessions, Kelly, and Lucero must answer the Petition within 19 20 days of the date of service. Respondent shall not file a dispositive motion in place of 20 an answer without first showing cause as to why an answer is inadequate. 21 22 23 24 25 26 27 28 TERMPSREF (4) Respondents Sessions, Kelly, and Lucero must respond to the Motion (Doc. 5) within 20 days of the date of service. (5) Petitioner may file a reply to the Answer within 30 days from the date of service of the answer. (6) Petitioner may file a reply to the response to the Motion within 10 days of service of the response. (7) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report -4- 1 2 and recommendation. Dated this 31st day of March, 2017. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -5-

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