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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NORMA GARCIA-AMBROCIO,
Plaintiff.

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United States District Court
Northern District of California

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Case No.4:17-cv-07087-KAW
ORDER TO SHOW CAUSE

v.

Re: Dkt. No. 1
KIRSTJEN NIELSEN, et al.,
Defendants.

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Norma Garcia-Ambrocio Petitioner , who is in the custody of the Department of Homeland

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Security pending removal proceedings, has filed a petition for a writ of habeas corpus pursuant to

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28 U.S.C. § 2241.

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BACKGROUND
On April 1, 2016, Petitioner pled guilty to one count of Possession with Intent to Distribute

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and Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(C), a felony.

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(Dkt. No. 1-1, Ex. G.) The U.S. District Court for the Central District of California sentenced

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Petitioner to 15 months in prison, which was a significant downward departure from the

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Sentencing Guidelines (approximately 33-41 months). On or about November 28, 2016,

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Petitioner was transferred from federal criminal custody to Department of Homeland Security

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(“DHS”) custody and has been detained at West County Detention Facility in Richmond,

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California since that time. According to Petitioner, DHS has charged her with removability under

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8 U.S.C. § 1182(a)(6)(A)(i), as an individual present in the United States without having been

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admitted or paroled. Petitioner has filed an application for asylum, and, on June 14, 2017, the

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immigration judge (“IJ”) held a bond hearing at which DHS was required to establish by clear and

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convincing evidence that she was a flight risk or a danger to the community. The IJ found that

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Petitioner was a danger to the community based on a 2009 DUI conviction and the

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methamphetamine conviction, and denied the request to be released on bond. Petitioner contends

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that the IJ failed to properly consider the abundance of evidence that indicated that she was not a

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danger to the community, and appealed the denial to the Board of Immigration Appeals (“BIA”).

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The BIA dismissed the appeal, and Petitioner challenges the IJ’s decision and the BIA’s

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affirmation on the grounds that the determination that she is a danger to the community was clear

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legal error.
DISCUSSION

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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

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under or by color of the authority of the United States.” 28 U.S.C. § 2241(c)(1). The court “shall

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forthwith award the writ or issue an order directing the respondent to show cause why the writ

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should not be granted, unless it appears from the application that the applicant or person detained

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is not entitled thereto.” 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or

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conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d

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490, 491 (9th Cir. 1990).

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B. Petitioner’s Legal Claims
Petitioner seeks federal habeas corpus relief by raising the following claims that her

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continued detention by Respondents violates her rights under the Due Process Clause of the Fifth

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Amendment. The BIA denied Petitioner due process by failing to apply the correct standard of

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dangerousness and by failing to meaningfully consider her evidence that she is not a danger.

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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

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1. The clerk shall serve by certified mail a copy of this order and the petition and all

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attachments thereto upon respondents. The clerk shall also serve a copy of this order on

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petitioner.

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2. Respondents shall file with the court and serve on petitioner, within 60 days of the date of

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this order, an answer showing why a writ of habeas corpus should not be issued.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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administrative record that are relevant to a determination of the issues presented by the

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petition.

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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.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: February 9, 2018
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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