(HC) Hernandez-Velasquez v. Warden, F.C.I. Mendota

Filing 8

ORDER DIRECTING Respondent to Provide Documents signed by Magistrate Judge Sheila K. Oberto on 5/8/2024. Respondent shall file a copy of the final order of removal within thirty (30) days. (Xiong, J.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEISON HERNANDEZ-VELASQUEZ,

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Petitioner,

No. 1:24-cv-00130-SKO (HC)
ORDER DIRECTING RESPONDENT TO
PROVIDE DOCUMENTS

v.
[30-DAY DEADLINE]

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WARDEN, F.C.I. MENDOTA,

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Respondent.

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Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2241. On January 29, 2024, Petitioner filed the

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instant habeas petition. On March 28, 2024, Respondent filed a motion to dismiss the petition.

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The Court has reviewed the pleadings and finds that additional documentation is necessary.

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It is Petitioner’s contention that the Bureau of Prisons (“BOP”) is excluding him from the

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application of First Step Act credits against his sentence solely because he has an immigration

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detainer lodged against him. Respondent responds that Petitioner is subject to a final order of

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removal and therefore ineligible under statute for application of First Step Act credits. See 18

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U.S.C. § 3632(d)(4)(E). Petitioner alleges that the BOP is using a document as proof of a final

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order of removal, but the document contains false information and that he is only subject to a

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detainer. Petitioner claims that the BOP is representing that he is subject to a final order of

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removal where no formal final order of removal has been issued.
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The Court has reviewed the documents lodged by Respondent, in particular, Respondent’s

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citation indicating Petitioner is subject to a final order of removal. (Doc. 7 at 2, citing Appendix

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at 2-3, 16.) The references are to a Declaration by Jennifer Vickers and to a copy of a document

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entitled “Immigration Detainer – Notice of Action.” In the declaration, Vickers states she has

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reviewed the Immigration Detainer and determined that Petitioner is subject to a final order of

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removal as indicated in the document. (Doc. 7-1 at 4.) The Court has reviewed that same

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document as well. (Doc. 7-1 at 16.) The document is not a final order of removal, but an

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immigration detainer wherein a box is checked indicating a final order of removal has been

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issued. From this secondhand information alone, the Court cannot verify that Petitioner is subject

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to a final order of removal. The detainer references the existence of a final order of removal, but

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from the document alone, the Court cannot determine the validity of Petitioner’s contention that it

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is merely a document with a box incorrectly checked. Thus, Respondent shall file a copy of the

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actual final order of removal or explain why a copy cannot be furnished.

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ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that Respondent shall file a copy of
the final order of removal within thirty (30) days of the date of service of this Order.

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

May 8, 2024

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UNITED STATES MAGISTRATE JUDGE

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