Bahena v. Aitken et al

Filing 5

ORDER to SHOW CAUSE why Petition Should not be Granted signed by Magistrate Judge Jennifer L. Thurston on 03/01/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AHUIZOTL MENDOZA BAHENA, 12 13 14 15 Petitioner, No. 1:17-cv-00145-JLT (HC) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE GRANTED v. [FORTY-FIVE DAY DEADLINE] TIMOTHY AITKEN, et al.,, Respondents. 16 17 18 19 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 20 about July 9, 2003. Subsequently, he was convicted a crime which constituted a removable 21 offense. He was taken into custody on March 4, 2016 and has remained in ICE custody since 22 then. He states he has been in ICE custody for more than six months since his 23 removal/exclusion/deportation order became final. 24 Petitioner contends that his detention pursuant to 8 U.S.C. § 1231(a)(2) has exceeded the 25 six-month presumptive period set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), that his 26 continued detention is no longer reasonable, that Respondent has been unable to effect his 27 removal to Mexico, that there is no “significant likelihood” of such removal in the “reasonably 28 foreseeable future,” and therefore that his ongoing detention is indefinite and violates his 1 1 substantive and procedural due process rights under the Due Process Clause of the Fifth 2 Amendment of the United States Constitution. 3 Because Petitioner may be entitled to relief if the claimed violations are proved, 4 Respondent is ORDERED to show cause why the Petition should not be granted. Rule 4, Rules 5 Governing Section 2254 Cases; see Rule 1(b), Rule 11, Rules Governing Section 2254 Cases; 6 Fed. R. Civ. P. 81(a)(2). Respondent SHALL INCLUDE a copy of Petitioner’s Alien File and 7 any and all other documentation relevant to the determination of the issues raised in the petition. 8 Rule 5 of the Rules Governing Section 2254 Cases. In the event the Petitioner is released from 9 ICE custody during the pendency of this Petition, the parties SHALL notify the Court by filing a 10 Motion to Dismiss the Petition or other proper pleading. Should the parties fail to notify the 11 Court that Petitioner has been released, the parties may be subject to sanctions pursuant to the 12 inherent power of the Court to issue sanctions in appropriate cases. See Local Rule 110. 13 Accordingly, the Court ORDERS: 14 1. Within 45 days, Respondent is SHALL show cause in writing why the Petition 15 should not be granted. Petitioner may file a Traverse to the Return within 10 days of the date the 16 Return to the Order to Show Cause is filed with the Court. 17 18 19 2. 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 20 pursuant to Local Rule 230(h). As such, the matter will be taken under submission following the 21 filing of Petitioner’s Traverse or the expiration of the time for filing the Traverse. All other 22 briefing in this action is suspended. 23 24 25 IT IS SO ORDERED. Dated: March 1, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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