Navichoque v. Kelly et al

Filing 11

ORDER TO SHOW CAUSE WHY PETITION FOR HABEAS CORPUS SHOULD NOT BE DISMISSED. Show Cause Response due by 7/24/2017. Signed by Judge Richard Seeborg on 7/10/2017. (afmS, COURT STAFF) (Filed on 7/10/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GUSTAVO NAVICHOQUE, Case No. 17-cv-03578-RS Plaintiff, 8 v. 9 10 JOHN F. KELLY, et al., ORDER TO SHOW CAUSE WHY PETITION FOR HABEAS CORPUS SHOULD NOT BE DISMISSED Defendants. United States District Court Northern District of California 11 12 13 On June 21, 2017, Gustavo Navichoque filed a petition for writ of habeas corpus seeking a 14 bond hearing pursuant to 8 U.S.C. § 1226(a). Navichoque, a native and citizen of Guatemala, 15 entered the United States without inspection in 2004 and was ordered removed in 2008. Shortly 16 thereafter, he reentered, was summarily removed, and then reentered again. On April 3, 2017, 17 Navichoque was apprehended and his prior removal order was reinstated pursuant to 8 U.S.C. 18 § 1231(a)(5). Upon demonstrating that he faces a reasonable fear of returning to Guatemala, his 19 case was transferred to an immigration judge to determine whether Navichoque is eligible for 20 withholding of removal. These “withholding-only” proceedings are ongoing. 21 Navichoque argues that his custody is now governed by 8 U.S.C. § 1226(a), rather than 8 22 U.S.C. § 1231, and that pursuant to section 1226(a), he is entitled to a bond hearing before an 23 immigration judge. In support, he relies on the Second Circuit’s opinion in Guerra v. Shanahan, 24 831 F.3d 59 (2nd Cir. 2016). There, the Second Circuit held that section 1226(a) governs 25 individuals in withholding-only proceedings. Id. at 63-64. Last week, however, the Ninth Circuit 26 reached a different conclusion. In Padilla-Ramirez v. Bible, No. 16-35385 (9th Cir. filed July 6, 27 2017), the Ninth Circuit held that the detention of aliens subject to reinstated removal orders is 28 governed by section 1231(a). The panel noted that its decision creates a circuit split with the 1 Second Circuit’s decision in Guerra. Navichoque is ordered to show why his petition should not 2 be dismissed in light of Padilla-Ramirez. Any filings attempting to show such cause shall not 3 exceed five pages in length and shall be filed no later than July 24, 2017. 4 5 IT IS SO ORDERED. 6 7 8 9 Dated: July 10, 2017 ______________________________________ RICHARD SEEBORG United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER TO SHOW CAUSE CASE NO. 17-cv-03578-RS 28 2

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