Limpin v. Figueroa
Filing
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ORDER denying Petition for Writ of Habeas Corpus 1 . This case is now CLOSED. Signed by Judge Anthony J. Battaglia on 8/4/2017.(All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MELCHOR KARL T. LIMPIN,
Case No.: 16-CV-1438-AJB-BLM
Petitioner,
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v.
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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241
MR. FIGUEROA, Warden,
Respondent.
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(Doc. No. 1)
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Presently before the Court is Petitioner Melchor Karl T. Limpin’s (“Petitioner”)
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) The matter
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is fully briefed. (Doc. Nos. 3, 8.) After a thorough review of the papers and applicable law,
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the Court DENIES the petition for writ of habeas corpus.
BACKGROUND
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Petitioner is a native and citizen of the Philippines. (Doc. No. 3-1 at 2.)1 Petitioner
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adjusted to lawful permanent resident status in the United States on February 20, 1996. (Id.
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at 4.) On January 24, 2015, Petitioner pled guilty to possessing methamphetamine for sale
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The Court cites to the blue CM/ECF-generated document and page numbers located at
the top of each page.
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in violation of California Health and Safety (“H&S”) Code section 11378. (Id.) He was
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sentenced to 365 days in jail and three years of probation. (Id.)
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On July 29, 2015, the Department of Homeland Security (“DHS”) took Petitioner
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into custody pursuant to a warrant of arrest of alien. (Id.) At that time, Petitioner was on
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GPS with San Diego probation. (Id.) DHS initiated removal proceedings, charging
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Petitioner with removability pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (an alien convicted of
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a controlled substance offense) and 8 U.S.C. § 1227(a)(2)(A)(iii) (an alien convicted of an
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aggravated felony). (Id. at 5–8.)
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On August 20, 2015, at a Preap2 bond hearing, Immigration Judge Robert
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McSeveney (“IJ”) denied Petitioner’s request for a change in custody status, finding
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Petitioner is a danger to the public. (Doc. No. 1 at 10; Doc. No. 3-1 at 9; Doc. No. 8 at 9.)
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On February 11, 2016, the IJ denied Petitioner’s applications for relief from removal and
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ordered him removed to the Philippines. (Doc. No. 3-1 at 10–28.) Petitioner’s motion to
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reconsider was denied on March 14, 2016. (Id. at 29–30.) Thereafter, on March 23, 2016,
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Petitioner was afforded a Rodriguez3 bond hearing, at which time the IJ again denied
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Petitioner’s request for a change in custody status on the basis that Petitioner is a danger to
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the community and a flight risk. (Doc. No. 1 at 11; Doc. No. 3-1 at 31, 34–37.) Petitioner
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moved for reconsideration of the IJ’s denial of bond, which was denied on April 4, 2016.
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(Doc. No. 3-1 at 32–33.) Petitioner appealed the removal order to the Board of Immigration
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Appeals, and his appeal remains pending. (Doc. No. 3 at 2; see Doc. No. 1 at 2.)
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Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §
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2241. (Doc. No. 1.) Petitioner challenges the constitutionality of his continued detention,
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asserting that the IJ and DHS attorney, while acting under color of law, denied him due
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process by failing to order him immediately released by virtue of his membership in the
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Preap v. Johnson, 303 F.R.D. 566 (N.D. Cal. 2014).
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). Rodriguez requires that aliens
detained for a period longer than six months be given an individualized bond hearing.
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Preap class. (Id.) Respondent filed a response, and Petitioner filed a traverse. (Doc. Nos.
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3, 8.) This order follows.
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LEGAL STANDARD
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United States district courts may grant writs of habeas corpus to prisoners “in
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custody in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C.
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§ 2241(a), (c)(3). Pursuant to § 2241, alien detainees can properly challenge “the extent of
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the Attorney General’s authority” to detain a removable alien under the general detention
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statutes. Zadvydas v. Davis, 533 U.S. 678, 687–88 (2001). The REAL ID Act of 2005
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amended the Immigration and Nationality Act (“INA”) and vests jurisdiction over final
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removal orders with the court of appeals. Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76
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(9th Cir. 2006). The Real ID Act does not divest the district court of jurisdiction because
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the Act was “not intended to ‘preclude habeas review over challenges to detention that are
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independent of challenges to removal orders.’” Singh v. Holder, 638 F.3d 1196, 1211 (9th
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Cir. 2011) (citation omitted). Here, Petitioner challenges his continued detention and not
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the validity of a final order of removal. Therefore, this Court has jurisdiction under 28
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U.S.C. § 2241 to consider his petition.
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It is established that the district court is precluded from reviewing the Attorney
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General’s discretionary authority. See 8 U.S.C. § 1226(e); Romero-Torres v. Ashcroft, 327
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F.3d 887, 891–92 (9th Cir. 2003). However, this does not deprive a court of jurisdiction to
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review claims that the Attorney General’s discretion was not exercised in accordance with
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the Constitution. Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 829–30 (9th Cir. 2002). The
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Court’s jurisdiction is limited to reviewing whether the denial of discretionary relief
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involved a violation of federal law or the Constitution. Id. Moreover, any challenge to an
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IJ’s discretionary determination must present a colorable, constitutional claim. Mendez-
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Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). “To be colorable in this context, the
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alleged violation need not be substantial, but the claim must have some possible validity.”
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Id. (citation omitted). In this case, Petitioner alleges that his constitutional due process
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rights were violated at his bond hearing. Therefore, the Court may review Petitioner’s
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constitutional challenges to his bond hearing.
DISCUSSION
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The crux of Petitioner’s assertion is that the IJ deprived him of due process of law
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when the IJ refused to grant him bond or otherwise release him. (Doc. No. 8 at 4.)
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According to Petitioner, the district court in the Preap class action ordered that all class
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members be released on their own recognizance, under intensive supervision, or on bond.
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(Id. at 3.) However, Petitioner’s understanding of Preap is wrong. In that case, the district
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court concluded that aliens can be mandatorily detained under 8 U.S.C. § 1226(c)4 only if
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they were detained immediately upon release from custody. Preap, 303 F.R.D. at 571, 579.
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If an alien was not detained immediately upon release from custody, the district court
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concluded that the alien could not be mandatorily detained under § 1226(c), but rather
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could only be detained under § 1226(a).5 Id. at 579. Pursuant to that section, “the
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Government [has] discretion to release an individual on his own recognizance or on bond
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while his removal case is pending if the Government determines that release would not
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present a risk of flight or a danger to the community.” Id. at 574; see 8 U.S.C. § 1226(a)(2)
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(“the Attorney General—may release the alien on—[] bond” (emphasis added)).
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Accordingly, a plain reading of Preap does not afford Petitioner the relief he seeks
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from the Court. Rather, all the relief that Preap granted class members was a bond hearing
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under 8 U.S.C. § 1226(a). It is indisputable that Petitioner received this bond hearing. That
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the IJ ultimately denied Petitioner bond on the basis of being a danger to the public is not
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reviewable by this Court. 8 U.S.C. § 1226(e) (“The Attorney General’s discretionary
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judgment regarding the application of this section shall not be subject to review. No court
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This section provides for mandatory detention of aliens rendered inadmissible or
deportable for having committed certain enumerated offenses “when the alien is
released[.]” 8 U.S.C. § 1226(c).
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This section provides for discretionary arrest and detention “[o]n a warrant issued by the
Attorney General,” as well as discretionary release on bond. 8 U.S.C. § 1226(a).
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may set aside any action or decision by the Attorney General under this section regarding
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the detention or release of any alien or the grant, revocation, or denial of bond or parole.”).
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Because Petitioner was afforded all the process he was due under Preap and § 1226(a), the
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petition is DENIED.
CONCLUSION
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For the reasons set forth above, the petition for writ of habeas corpus is DENIED.
(Doc. No. 1.) This case is now CLOSED.
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IT IS SO ORDERED.
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Dated: August 4, 2017
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