(HC) Solia-Torres v. FCI Mendota Warden

Filing 23

ORDER ADOPTING 21 Findings and Recommendations, GRANTING 10 Respondent's Motion to Dismiss, Dismissing Petition for Writ of Habeas Corpus, and Directing the Clerk of Court to Close Case, signed by District Judge Jennifer L. Thurston on 03/26/2024. CASE CLOSED.(Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO SOLIS-TORRES, Petitioner, 12 13 14 15 v. FCI MENDOTA WARDEN, No. 1:23-cv-0358 JLT SAB (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING THE CLERK OF COURT TO CLOSE CASE Respondent. (Docs. 10, 21) 16 17 Francisco Solis-Torres is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asserts that he “earned time credits which, 19 under the First Step Act, entitled him to immediate transfer into supervised release or pre-release 20 custody, however, the BOP refuses to enable him to apply his earned time credits because of his 21 immigration status.” (Doc. 1 at 6.) Respondent moves to dismiss the petition, arguing Petitioner 22 did not exhaust his administrative remedies and that he is “jurisdictionally and statutorily barred 23 from [First Step Act earned time credit] sentence-offsets due to the final order of removal from 24 another federal court.” (Doc. 10 at 1, 3.) 25 The magistrate judge noted: “Although Petitioner did not file a formal opposition or 26 statement of non-opposition to the motion to dismiss, in response to Respondent’s request for an 27 extension of time to submit the purported final order of removal, Petitioner states that [there is no 28 ‘Final Order of Removal,’ Petitioner has never seen a[n] Immigration Judge and Petitioner has 1 1 nothing more th[a]n a[n] Immigration Detainer.” (Id., citing Doc. 14 [modifications in original].) 2 The magistrate judge found that “an order of expedited removal under section 235(b)(1) of the 3 Immigration and Nationality Act was issued on February 14, 2023, with respect to Petitioner.” 4 (Id. at 3, citing Doc. 19 and Doc. 10-1 at 27, 34.) The magistrate judge observed such an 5 “expedited removal” includes a process for “certain non-citizens… without a hearing before an 6 immigration judge.” (Id. at 3 n.2, quoting Alvarado-Herrera v. Garland, 993 F.3d 1187, 1190 7 (9th Cir. 2021).) Because Petitioner is the subject of a removal order under immigration laws, the 8 magistrate judge found “Petitioner is statutorily ineligible to apply earned time credits towards 9 prerelease custody or supervised release and cannot obtain the relief he seeks in the petition.” 10 (Id., citing 18 U.S.C. § 3632(d)(4)(E)(i).) Therefore, the magistrate judge recommended the 11 motion to dismiss be granted. (Id.) 12 Petitioner filed objections to the Findings and Recommendations, reiterating his assertion 13 that “time credits should be applied and Petitioner should be released.” (Doc. 22 at 2.) Petitioner 14 maintains “nothing has been issued by an Immigration Judge.” (Id.) 15 Petitioner’s objections do not meaningfully respond to the findings of the magistrate 16 judge. As the magistrate judge observed, the record before the Court shows a final order of 17 removal was issued regarding Petitioner, and Petitioner was the subject of an expedited removal. 18 (See Doc. 10-1 at 34; see also Doc. 19 [under seal].) The Ninth Circuit explained, “Expedited 19 removal proceedings involve, as the name suggests, a streamlined process through which certain 20 non-citizens … may be removed from the United States without a hearing before an immigration 21 judge.” Alvarado-Herrera, 993 F.3d at 1190, citing 8 U.S.C. § 1225(b)(1) (emphasis added). 22 Furthermore, “[e]xpedited removal orders are entered by DHS immigration officers, not by 23 immigration judges. Id. (emphasis added); see also 8 U.S.C. § 1225(b)(1)(A)(i) (noncitizens 24 subject to removal orders are not afforded a hearing before an immigration judge or review of the 25 removal order). Thus, although Petitioner protests that he did not see an immigration judge—and 26 suggests that as a result there is no removal order—the expedited removal process did not require 27 an immigration judge to enter the order of removal. 28 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 2 1 case. Having carefully reviewed the matter, the Court concludes the Findings and 2 Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 3 1. 4 The Findings and Recommendations issued on November 21, 2023 (Doc. 21) are ADOPTED in full. 5 2. Respondent’s motion to dismiss (Doc. 10) is GRANTED. 6 3. The petition for writ of habeas corpus is DISMISSED. 7 4. The Clerk of Court is directed to close this case. 8 9 10 IT IS SO ORDERED. Dated: March 26, 2024 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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