Maldonado v. Napolitano

Filing 7

ORDER denying Petition for Writ of Habeas Corpus. Signed by Judge Anthony J. Battaglia on 04/17/12.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FERNANDO MALDONADO,

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Petitioner,

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v.

11cv2341-AJB(BLM)

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241

JANET NAPOLITANO, et als ,
Respondents.

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Civil No.

On October 6, 2011, Petitioner, a detainee in the custody of the Department of Homeland

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Security (“DHS”), Bureau of Immigration and Customs Enforcement, proceeding pro se, filed a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a return to the

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petition on January 13, 2012. Petitioner filed a reply on February 6, 2012. After a thorough review

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of the papers and applicable law, the Court DENIES the petition for writ of habeas corpus.

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Background
The Court recites the background facts in the order denying Petitioner’s prior petition for
writ of habeas corpus in case no. 10cv1014-AJB(BLM).1 (Dkt. No. 22 at 1-5.)

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Petitioner is a native and citizen of Honduras who entered the United States
without inspection prior to 1996. (Pet., Ex. C.) On October 4, 1995, he married
in the United States. (Pet., Ex. A.) On November 30, 1995, Petitioner was
convicted of misdemeanor battery on his spouse and placed on probation for three
years. (Pet., Ex. B; Resp’t Ex. 39.) On September 29, 1995, the INS placed
Petitioner in deportation proceedings. (Resp’t Ex. 39.) On December 1, 1995,
the IJ granted his request to depart the United States voluntarily before June 3,

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On November 3, 2011, this case was transferred to the undersigned judge under the Low
Number Rule as both cases appeared to involve the same or substantially the same parties, legal issues
and/or facts. (Dkt. No. 2.)
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1996 in lieu of an order of deportation. (Resp’t Ex. 39.) Petitioner did not appeal
to the Board of Immigration Appeals (“BIA”) and he did not depart the United
States, so his deportation order became effective and final on June 3, 1996.
(Resp’t Ex. 37.) On December 13, 1996, Petitioner was deported to Honduras.
(Resp’t Ex. 39.)
In January 1997, Petitioner unlawfully returned to the United States by entering
without inspection. (Pet., Ex. C; Resp’t Ex 37.) On March 3, 2003, Petitioner
was convicted of a misdemeanor of Driving Under the Influence. (Resp’t Ex. 5.)
Around June 22, 2001, Petitioner filed an application for temporary protected
status (“TPS”) which the INS approved. (Pet., Ex. C; Resp’t Exs. 1-4.) Because
of the two misdemeanor convictions, on April 19, 2007, the DHS withdrew his
TPS status. (Pet., Ex. B; Resp’t Exs. 5-6.) On August 24, 2007, the superior
court vacated Petitioner’s plea of his 1995 criminal case as legally invalid. (Pet.,
Ex. B; Resp’t Exs. 7-8.) Petitioner filed an appeal regarding the withdrawal of his
TPS. (Pet., Ex. B.) On October 5, 2007, the DHS denied the appeal. (Pet., Ex.
B; Resp’t Exs. 10-12.)

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On July 31, 2008, Petitioner was arrested for disorderly conduct/public
intoxication in violation of California Penal Code section 647(f). (Resp’t Ex. 37.)
He was transferred into the custody of ICE on that same day and placed him in
removal proceedings. (Resp’t Ex. 37.) On September 18, 2008, the IJ granted
DHS’s motion and terminated removal proceedings in order for the DHS to
reinstate the prior 1995 order of deportation to Honduras. (Resp’t Exs. 16, 37.)
However, in response to the Court’s request for additional documents, it was
realized that Respondents have not yet reinstated the 1996 deportation order.
(Gov’t Response filed on 7/29/11, Dkt. No. 20.) On July 30, 2011, Respondent
filed a first supplemental lodgment informing the Court that on July 29, 2011,
DHS reinstated the prior deportation order. (Dkt. No. 21; Ex. 58.)

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On September 26, 2008, Petitioner filed an appeal before the BIA arguing that his
prior removal order should not have been reinstated and that he should have been
considered for TPS and Adjustment of Status. (Pet. Suppl. Brief at 7; Resp’t Ex.
37.) On February 10, 2009, the BIA dismissed the appeal. (Resp’t Exs. 13, 37.)
On February 23, 2009, Petitioner petitioned for review of the BIA’s decision and
motion for stay before the Ninth Circuit Court of Appeals in Maldonado v.
Holder, No. 09-70515. (Resp’t Exs. 13, 27.) The stay of removal was granted.
(Resp’t Ex. 37.) On July 1, 2009, the Ninth Circuit dismissed the petition for lack
of subject matter jurisdiction because its direct review of immigration cases is
limited to a review of final orders of removal. (Resp’t Exs. 13-14.) A stay of
removal was in effect from February 23, 2009 until August 28, 2009. (Resp’t
Exs. 27-28.)
In August 2009, Petitioner moved the BIA to reopen his previous 1995
deportation proceedings based on ineffective assistance of counsel. (Pet. at 7;
Pet. Suppl. Brief at 10.) On September 10, 2009, the BIA denied the August 2009
motion to reopen for lack of jurisdiction because jurisdiction to review any such
motion remained with the IJ because no appeal was taken from the IJ’s December
1, 1995 decision finding Petitioner removable. (Resp’t Exs. 18, 37.) On
September 18, 2009, he filed a petition for review of the BIA’s decision and
motion for stay with the Ninth Circuit in Maldonado v. Holder, No. 09-72975 to
review the BIA’s decision. (Resp’t Ex. 32.) On April 14, 2010, the Ninth Circuit
denied the petition for review upholding the BIA’s decision and dismissed the
remaining claims of ineffective assistance of counsel, eligibility for cancellation
of removal, whether petitioner is still a candidate for TPS and whether the prior
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deportation in 1995 was valid because he failed to exhaust his administrative
remedies. (Resp’t Exs. 18-19.) A stay of removal was in effect from September
18, 2009 until June 7, 2010. (Resp’t Ex. 32.)
On September 14, 2009, the IJ held a bond hearing and determined that, because
Petitioner was subject to a final order of removal that was not subject to judicial
review, there was no jurisdiction to conduct bond review pursuant to CasasCastrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) and/or Prieto-Romero v. Clark,
534 F.3d 1053 (9th Cir. 2008). (Resp’t Ex. 16.) He appealed the IJ’s decision.
(Resp’t Ex. 16.) On January 27, 2010, the BIA upheld the IJ’s decision and
dismissed the appeal. (Resp’t Exs. 16-17.)
On October 7, 2009, Petitioner moved the IJ to reopen the proceedings. (Pet. at
7.) On November 9, 2009, the IJ denied the motion to reopen as untimely. (Pet.
at 7; Resp’t Ex. 21.) The IJ specifically concluded that Petitioner did not
voluntarily depart within the time allowed in December 1, 1995 and the motion
was untimely and would not be equitably tolled because he did not show that he
acted with due diligence in pursuing his claim regarding ineffective assistance of
counsel. (Pet. Supp. Brief at 11.) He appealed the IJ’s decision to the BIA. (Pet.
at 7.) On April 13, 2010, the BIA upheld the IJ’s decision denying his motion to
reopen an order of deportation for failing to show that he exercised due diligence
in pursuing his ineffective assistance of counsel claim. (Resp’t Exs. 20-22.) On
April 21, 2010, Petitioner petitioned for review of the BIA decision and motion
for stay before the Ninth Circuit in Maldonado v. Holder, No. 10-71252. (Resp’t
Ex. 36.) On June 15, 2010, the Ninth Circuit found the petition for review to be
appropriate for summary dismissal and set a briefing schedule for an order to
show cause why the petition should not be summarily denied. (Resp’t Ex. 23.)
On August 26, 2010, the Ninth Circuit granted respondent’s motion for summary
disposition. (Resp’t Suppl. Brief, Ex. 46-48.) The Court also held that the
agency did not abuse its discretion in denying the untimely motion to reopen
because Petitioner failed to show he acted with due diligence in pursuing his
ineffective assistance of counsel claim. (Id.) Lastly, the Court concluded it
lacked jurisdiction to review the claim that the BIA abused its discretion in
refusing to reopen proceedings sua sponte. (Id.) A stay of removal was in effect
from April 21, 2010 until December 30, 2010. (Resp’t Suppl. Brief, Exs. 43-44.)
In July 2010, Petitioner filed a motion to reopen with the BIA with new evidence
and new arguments. (Pet. Suppl. Brief at 13.) On December 13, 2010, the BIA
construed Petitioner’s motion as one for reconsideration of the BIA’s decision on
April 13, 2010. (Pet’r Suppl. Brief at Doc. 16-1 at 2-3.) The BIA first stated that
the such a motion for reconsideration was untimely and alternatively, that on
previously raised issues, Petitioner has not identified any error of fact or law in
the BIA’s previously detailed decision. (Id.) Further, the BIA concluded the
motion to reopen was untimely and he had not presented any exception to the
filing requirements imposed on motion to reopen removal proceedings; and has
not demonstrated an exception situation for sua sponte reopening under 8 C.F.R.
§ 1003.2(a). (Id.) In conclusion, the BIA denied Petitioner’s motion to reopen
and a request for a stay of deportation. (Id.)

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On December 29, 2010, Petitioner filed another petition for review of the BIA’s
denial of a motion to reopen and motion for stay in Maldonado-Aguilar v. Holder,
No. 10-73937. (Id., Ex. 50.) On July 6, 2011, the Ninth Circuit issued an order
similar to the one filed on August 26, 2010. The Court also held that the agency
did not abuse its discretion in denying the untimely motion to reopen because
Petitioner failed to show he acted with due diligence in pursuing his ineffective
assistance of counsel claim. (Ninth Circuit PACER, 10-73937, July 6, 2011.)
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The Court also held it lacked jurisdiction to review the claim that the BIA abused
its discretion in refusing to reopen proceedings sua sponte. (Id.) In conclusion,
the Ninth Circuit stated, “[t]he temporary stay of removal will terminate upon
issuance of the mandate.” (Id.)

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On May 10, 2010, Petitioner filed a petition for writ of habeas corpus in this Court in case

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no. 10cv1014-AJB(BLM). (10cv1014-AJB(BLM), Dkt. No. 1.) On August 3, 2011, the Court

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denied the petition for writ of habeas corpus. (Id., Dkt. No. 22.) On October 6, 2011, Petitioner

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filed the instant petition for writ of habeas corpus. (Dkt. No. 1.) Respondent filed a return and

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Petitioner filed a reply. (Dkt. Nos. 4, 5.)

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Discussion

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Petitioner alleges three claims in his petition. First, he seeks to challenge the July 29, 2011

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reinstatement of a previous deportation order by the DHS. Second, he requests that the Court grant

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him cancellation of removal under INA § 240A(b)(1). Third, he argues that he should be released

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from detention.

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A.

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July 29, 2011 Reinstatement Order
Petitioner challenges the July 29, 2011 reinstatement order of his 1996 deportation order.

Respondent argues that the Court does not have jurisdiction to address this issue.
Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge “the extent of the

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Attorney’s General’s authority” to detain a removable alien under the general detention statutes.

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Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). The REAL ID Act of 2005 amended the

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Immigration and Nationality Act (“INA”) and vests jurisdiction over final removal orders with the

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court of appeals. Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006). Reinstatement

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orders qualify as an order of removal that can only be challenged in a petition for review with the

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Ninth Circuit. Morales-Izquierdo v. Dept. of Homeland Sec., 600 F.3d 1076, 1082 (9th Cir. 2010);

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Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1127 (9th Cir. 2001).

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The Court concludes that it does not have jurisdiction to review the July 29, 2011

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reinstatement order. It appears that Petitioner has already filed a petition for review before the Ninth

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Circuit regarding the reinstatement order in Maldonado v. Holder, case no. 11-72492, filed on

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August 24, 2011. (Resp’t Exs. at 58-61.) Therefore, transfer of this case to the Ninth Circuit is not
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necessary.

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B.

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Cancellation of Removal
Petitioner asks the Court to grant his request for cancellation of removal pursuant to INA

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§ 240A(b)(1), also known as 28 U.S.C. § 1229b(b)(1), because he meets the standard having

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accrued more than 10 years of a physical presence since his last entry into the United States. He

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also claims that since he previously had TPS status for over seven years, he meets the standard for

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cancellation of removal. Respondent argues that the Court lacks authority to cancel removal and

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adjust status.

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The Attorney General, not the district court, has the authority to cancel removal and adjust

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status in a case. 8 U.S.C. § 1229b(b)(1).2 Accordingly, the Court DENIES Petitioner’s request for

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cancellation of removal.

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C.

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Release from Custody
Petitioner seeks release from custody and cites to Diouf v. Napolitano, 634 F.3d 1081 (9th

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Cir. 2011). The Ninth Circuit, in Diouf, held that an alien who is facing a prolonged detention under

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8 U.S.C. § 1231(a)(6) is entitled to a bond hearing before an immigration judge and entitled to be

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released on bond unless the government establishes that he is a flight risk or a danger to the

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community. Diouf, 634 F.3d at 1091.

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On November 29, 2011, Petitioner received a bond hearing and the immigration judge set

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bond at $5,000. (Resp’t Exs. at 63.) It does not appear that Petitioner challenges the bond hearing.

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In his reply, Petitioner acknowledges that he was granted bond pursuant to Diouf. (Reply at 5.)

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Accordingly, Petitioner has failed to show he is entitled to be released, and the Court DENIES his

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request to be released from custody.

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The Court also notes that “[t]he reinstatement of a prior removal order bars an alien from
applying for “any relief” from removal for which he or she might previously have been eligible.”
Morales-Izquierdo, 600 F.3d at 1080 (citing INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (concluding that
once petitioner’s removal order was reinstated, he was no longer eligible for “relief” in the form of
adjustment of status-even if he could obtain a Form I-212 waiver). Since the reinstatement order was
reinstated and still valid, Petitioner cannot seek a cancellation of removal.
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Conclusion
Based on the above, the Court DENIES the petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

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DATED: April 17, 2012

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Hon. Anthony J. Battaglia
U.S. District Judge

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