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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AHUIZOTL MENDOZA BAHENA,

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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.

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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

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about July 9, 2003. Subsequently, he was convicted a crime which constituted a removable

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offense. He was taken into custody on March 4, 2016 and has remained in ICE custody since

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then. He states he has been in ICE custody for more than six months since his

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removal/exclusion/deportation order became final.

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Petitioner contends that his detention pursuant to 8 U.S.C. § 1231(a)(2) has exceeded the

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six-month presumptive period set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), that his

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continued detention is no longer reasonable, that Respondent has been unable to effect his

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removal to Mexico, that there is no “significant likelihood” of such removal in the “reasonably

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foreseeable future,” and therefore that his ongoing detention is indefinite and violates his
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substantive and procedural due process rights under the Due Process Clause of the Fifth

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Amendment of the United States Constitution.

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Because Petitioner may be entitled to relief if the claimed violations are proved,

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Respondent is ORDERED to show cause why the Petition should not be granted. Rule 4, Rules

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Governing Section 2254 Cases; see Rule 1(b), Rule 11, Rules Governing Section 2254 Cases;

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Fed. R. Civ. P. 81(a)(2). Respondent SHALL INCLUDE a copy of Petitioner’s Alien File and

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any and all other documentation relevant to the determination of the issues raised in the petition.

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Rule 5 of the Rules Governing Section 2254 Cases. In the event the Petitioner is released from

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ICE custody during the pendency of this Petition, the parties SHALL notify the Court by filing a

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Motion to Dismiss the Petition or other proper pleading. Should the parties fail to notify the

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Court that Petitioner has been released, the parties may be subject to sanctions pursuant to the

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inherent power of the Court to issue sanctions in appropriate cases. See Local Rule 110.

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Accordingly, the Court ORDERS:

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1.

Within 45 days, Respondent is SHALL show cause in writing why the Petition

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should not be granted. Petitioner may file a Traverse to the Return within 10 days of the date the

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Return to the Order to Show Cause is filed with the Court.

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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

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pursuant to Local Rule 230(h). As such, the matter will be taken under submission following the

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filing of Petitioner’s Traverse or the expiration of the time for filing the Traverse. All other

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briefing in this action is suspended.

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IT IS SO ORDERED.
Dated:

March 1, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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