Bahena v. Aitken et al
ORDER to SHOW CAUSE why Petition Should not be Granted signed by Magistrate Judge Jennifer L. Thurston on 03/01/2017. (Flores, E)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AHUIZOTL MENDOZA BAHENA,
No. 1:17-cv-00145-JLT (HC)
ORDER TO SHOW CAUSE WHY
PETITION SHOULD NOT BE GRANTED
[FORTY-FIVE DAY DEADLINE]
TIMOTHY AITKEN, et al.,,
Petitioner has filed a petition for writ of habeas corpus challenging his indefinite detention
by the United States Bureau of Immigration and Customs Enforcement (“ICE”).
Petitioner states he is a citizen of Mexico who entered the United States illegally on or
about July 9, 2003. Subsequently, he was convicted a crime which constituted a removable
offense. He was taken into custody on March 4, 2016 and has remained in ICE custody since
then. He states he has been in ICE custody for more than six months since his
removal/exclusion/deportation order became final.
Petitioner contends that his detention pursuant to 8 U.S.C. § 1231(a)(2) has exceeded the
six-month presumptive period set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), that his
continued detention is no longer reasonable, that Respondent has been unable to effect his
removal to Mexico, that there is no “significant likelihood” of such removal in the “reasonably
foreseeable future,” and therefore that his ongoing detention is indefinite and violates his
substantive and procedural due process rights under the Due Process Clause of the Fifth
Amendment of the United States Constitution.
Because Petitioner may be entitled to relief if the claimed violations are proved,
Respondent is ORDERED to show cause why the Petition should not be granted. Rule 4, Rules
Governing Section 2254 Cases; see Rule 1(b), Rule 11, Rules Governing Section 2254 Cases;
Fed. R. Civ. P. 81(a)(2). Respondent SHALL INCLUDE a copy of Petitioner’s Alien File and
any and all other documentation relevant to the determination of the issues raised in the petition.
Rule 5 of the Rules Governing Section 2254 Cases. In the event the Petitioner is released from
ICE custody during the pendency of this Petition, the parties SHALL notify the Court by filing a
Motion to Dismiss the Petition or other proper pleading. Should the parties fail to notify the
Court that Petitioner has been released, the parties may be subject to sanctions pursuant to the
inherent power of the Court to issue sanctions in appropriate cases. See Local Rule 110.
Accordingly, the Court ORDERS:
Within 45 days, Respondent is SHALL show cause in writing why the Petition
should not be granted. Petitioner may file a Traverse to the Return within 10 days of the date the
Return to the Order to Show Cause is filed with the Court.
The Clerk of the Court is DIRECTED to SERVE a copy of the Petition for Writ
of Habeas Corpus on the United States Attorney.
The Court has determined that this matter is suitable for decision without oral argument
pursuant to Local Rule 230(h). As such, the matter will be taken under submission following the
filing of Petitioner’s Traverse or the expiration of the time for filing the Traverse. All other
briefing in this action is suspended.
IT IS SO ORDERED.
March 1, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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