Garcia-Ambrocio v. Nielsen et al

Filing 7

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 4/10/2018.. Signed by Judge Kandis A. Westmore on 2/9/2018. (kawlc1, COURT STAFF) (Filed on 2/9/2018)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NORMA GARCIA-AMBROCIO, Plaintiff. 8 9 10 United States District Court Northern District of California 11 Case No.4:17-cv-07087-KAW ORDER TO SHOW CAUSE v. Re: Dkt. No. 1 KIRSTJEN NIELSEN, et al., Defendants. 12 13 Norma Garcia-Ambrocio Petitioner , who is in the custody of the Department of Homeland 14 Security pending removal proceedings, has filed a petition for a writ of habeas corpus pursuant to 15 28 U.S.C. § 2241. 16 17 BACKGROUND On April 1, 2016, Petitioner pled guilty to one count of Possession with Intent to Distribute 18 and Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(C), a felony. 19 (Dkt. No. 1-1, Ex. G.) The U.S. District Court for the Central District of California sentenced 20 Petitioner to 15 months in prison, which was a significant downward departure from the 21 Sentencing Guidelines (approximately 33-41 months). On or about November 28, 2016, 22 Petitioner was transferred from federal criminal custody to Department of Homeland Security 23 (“DHS”) custody and has been detained at West County Detention Facility in Richmond, 24 California since that time. According to Petitioner, DHS has charged her with removability under 25 8 U.S.C. § 1182(a)(6)(A)(i), as an individual present in the United States without having been 26 admitted or paroled. Petitioner has filed an application for asylum, and, on June 14, 2017, the 27 immigration judge (“IJ”) held a bond hearing at which DHS was required to establish by clear and 28 convincing evidence that she was a flight risk or a danger to the community. The IJ found that 1 Petitioner was a danger to the community based on a 2009 DUI conviction and the 2 methamphetamine conviction, and denied the request to be released on bond. Petitioner contends 3 that the IJ failed to properly consider the abundance of evidence that indicated that she was not a 4 danger to the community, and appealed the denial to the Board of Immigration Appeals (“BIA”). 5 The BIA dismissed the appeal, and Petitioner challenges the IJ’s decision and the BIA’s 6 affirmation on the grounds that the determination that she is a danger to the community was clear 7 legal error. DISCUSSION 8 9 10 A. Legal Standard This court may entertain a petition for habeas corpus in behalf of a person “in custody United States District Court Northern District of California 11 under or by color of the authority of the United States.” 28 U.S.C. § 2241(c)(1). The court “shall 12 forthwith award the writ or issue an order directing the respondent to show cause why the writ 13 should not be granted, unless it appears from the application that the applicant or person detained 14 is not entitled thereto.” 28 U.S.C. § 2243. 15 Summary dismissal is appropriate only where the allegations in the petition are vague or 16 conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 17 490, 491 (9th Cir. 1990). 18 19 B. Petitioner’s Legal Claims Petitioner seeks federal habeas corpus relief by raising the following claims that her 20 continued detention by Respondents violates her rights under the Due Process Clause of the Fifth 21 Amendment. The BIA denied Petitioner due process by failing to apply the correct standard of 22 dangerousness and by failing to meaningfully consider her evidence that she is not a danger. 23 24 25 26 Liberally construed, the claims appear colorable under 28 U.S.C. § 2241 and merit an answer from respondents. CONCLUSION For the foregoing reasons and for good cause shown 27 28 2 1 1. The clerk shall serve by certified mail a copy of this order and the petition and all 2 attachments thereto upon respondents. The clerk shall also serve a copy of this order on 3 petitioner. 4 2. Respondents shall file with the court and serve on petitioner, within 60 days of the date of 5 this order, an answer showing why a writ of habeas corpus should not be issued. 6 Respondent shall file with the answer and serve on petitioner a copy of all portions of the 7 administrative record that are relevant to a determination of the issues presented by the 8 petition. 9 3. If the petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer. 11 United States District Court Northern District of California 10 IT IS SO ORDERED. 12 13 14 Dated: February 9, 2018 ______________________________________ KANDIS A. WESTMORE United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?