Limpin v. Figueroa

Filing 11

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MELCHOR KARL T. LIMPIN,

Case No.: 16-CV-1438-AJB-BLM
Petitioner,

12
13

v.

14

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

MR. FIGUEROA, Warden,
Respondent.

15

(Doc. No. 1)

16
17
18

Presently before the Court is Petitioner Melchor Karl T. Limpin’s (“Petitioner”)

19

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) The matter

20

is fully briefed. (Doc. Nos. 3, 8.) After a thorough review of the papers and applicable law,

21

the Court DENIES the petition for writ of habeas corpus.
BACKGROUND

22
23

Petitioner is a native and citizen of the Philippines. (Doc. No. 3-1 at 2.)1 Petitioner

24

adjusted to lawful permanent resident status in the United States on February 20, 1996. (Id.

25

at 4.) On January 24, 2015, Petitioner pled guilty to possessing methamphetamine for sale

26
27
1

28

The Court cites to the blue CM/ECF-generated document and page numbers located at
the top of each page.
1
16-CV-1438-AJB-BLM

1

in violation of California Health and Safety (“H&S”) Code section 11378. (Id.) He was

2

sentenced to 365 days in jail and three years of probation. (Id.)

3

On July 29, 2015, the Department of Homeland Security (“DHS”) took Petitioner

4

into custody pursuant to a warrant of arrest of alien. (Id.) At that time, Petitioner was on

5

GPS with San Diego probation. (Id.) DHS initiated removal proceedings, charging

6

Petitioner with removability pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (an alien convicted of

7

a controlled substance offense) and 8 U.S.C. § 1227(a)(2)(A)(iii) (an alien convicted of an

8

aggravated felony). (Id. at 5–8.)

9

On August 20, 2015, at a Preap2 bond hearing, Immigration Judge Robert

10

McSeveney (“IJ”) denied Petitioner’s request for a change in custody status, finding

11

Petitioner is a danger to the public. (Doc. No. 1 at 10; Doc. No. 3-1 at 9; Doc. No. 8 at 9.)

12

On February 11, 2016, the IJ denied Petitioner’s applications for relief from removal and

13

ordered him removed to the Philippines. (Doc. No. 3-1 at 10–28.) Petitioner’s motion to

14

reconsider was denied on March 14, 2016. (Id. at 29–30.) Thereafter, on March 23, 2016,

15

Petitioner was afforded a Rodriguez3 bond hearing, at which time the IJ again denied

16

Petitioner’s request for a change in custody status on the basis that Petitioner is a danger to

17

the community and a flight risk. (Doc. No. 1 at 11; Doc. No. 3-1 at 31, 34–37.) Petitioner

18

moved for reconsideration of the IJ’s denial of bond, which was denied on April 4, 2016.

19

(Doc. No. 3-1 at 32–33.) Petitioner appealed the removal order to the Board of Immigration

20

Appeals, and his appeal remains pending. (Doc. No. 3 at 2; see Doc. No. 1 at 2.)

21

Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §

22

2241. (Doc. No. 1.) Petitioner challenges the constitutionality of his continued detention,

23

asserting that the IJ and DHS attorney, while acting under color of law, denied him due

24

process by failing to order him immediately released by virtue of his membership in the

25
26
27

2

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.
3

28

2
16-CV-1438-AJB-BLM

1

Preap class. (Id.) Respondent filed a response, and Petitioner filed a traverse. (Doc. Nos.

2

3, 8.) This order follows.

3

LEGAL STANDARD

4

United States district courts may grant writs of habeas corpus to prisoners “in

5

custody in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C.

6

§ 2241(a), (c)(3). Pursuant to § 2241, alien detainees can properly challenge “the extent of

7

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

8

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

9

amended the Immigration and Nationality Act (“INA”) and vests jurisdiction over final

10

removal orders with the court of appeals. Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76

11

(9th Cir. 2006). The Real ID Act does not divest the district court of jurisdiction because

12

the Act was “not intended to ‘preclude habeas review over challenges to detention that are

13

independent of challenges to removal orders.’” Singh v. Holder, 638 F.3d 1196, 1211 (9th

14

Cir. 2011) (citation omitted). Here, Petitioner challenges his continued detention and not

15

the validity of a final order of removal. Therefore, this Court has jurisdiction under 28

16

U.S.C. § 2241 to consider his petition.

17

It is established that the district court is precluded from reviewing the Attorney

18

General’s discretionary authority. See 8 U.S.C. § 1226(e); Romero-Torres v. Ashcroft, 327

19

F.3d 887, 891–92 (9th Cir. 2003). However, this does not deprive a court of jurisdiction to

20

review claims that the Attorney General’s discretion was not exercised in accordance with

21

the Constitution. Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 829–30 (9th Cir. 2002). The

22

Court’s jurisdiction is limited to reviewing whether the denial of discretionary relief

23

involved a violation of federal law or the Constitution. Id. Moreover, any challenge to an

24

IJ’s discretionary determination must present a colorable, constitutional claim. Mendez-

25

Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). “To be colorable in this context, the

26

alleged violation need not be substantial, but the claim must have some possible validity.”

27

Id. (citation omitted). In this case, Petitioner alleges that his constitutional due process

28
3
16-CV-1438-AJB-BLM

1

rights were violated at his bond hearing. Therefore, the Court may review Petitioner’s

2

constitutional challenges to his bond hearing.
DISCUSSION

3
4

The crux of Petitioner’s assertion is that the IJ deprived him of due process of law

5

when the IJ refused to grant him bond or otherwise release him. (Doc. No. 8 at 4.)

6

According to Petitioner, the district court in the Preap class action ordered that all class

7

members be released on their own recognizance, under intensive supervision, or on bond.

8

(Id. at 3.) However, Petitioner’s understanding of Preap is wrong. In that case, the district

9

court concluded that aliens can be mandatorily detained under 8 U.S.C. § 1226(c)4 only if

10

they were detained immediately upon release from custody. Preap, 303 F.R.D. at 571, 579.

11

If an alien was not detained immediately upon release from custody, the district court

12

concluded that the alien could not be mandatorily detained under § 1226(c), but rather

13

could only be detained under § 1226(a).5 Id. at 579. Pursuant to that section, “the

14

Government [has] discretion to release an individual on his own recognizance or on bond

15

while his removal case is pending if the Government determines that release would not

16

present a risk of flight or a danger to the community.” Id. at 574; see 8 U.S.C. § 1226(a)(2)

17

(“the Attorney General—may release the alien on—[] bond” (emphasis added)).

18

Accordingly, a plain reading of Preap does not afford Petitioner the relief he seeks

19

from the Court. Rather, all the relief that Preap granted class members was a bond hearing

20

under 8 U.S.C. § 1226(a). It is indisputable that Petitioner received this bond hearing. That

21

the IJ ultimately denied Petitioner bond on the basis of being a danger to the public is not

22

reviewable by this Court. 8 U.S.C. § 1226(e) (“The Attorney General’s discretionary

23

judgment regarding the application of this section shall not be subject to review. No court

24
25
4

26
27
28

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).
5
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).
4
16-CV-1438-AJB-BLM

1

may set aside any action or decision by the Attorney General under this section regarding

2

the detention or release of any alien or the grant, revocation, or denial of bond or parole.”).

3

Because Petitioner was afforded all the process he was due under Preap and § 1226(a), the

4

petition is DENIED.
CONCLUSION

5
6
7

For the reasons set forth above, the petition for writ of habeas corpus is DENIED.
(Doc. No. 1.) This case is now CLOSED.

8
9

IT IS SO ORDERED.

10

Dated: August 4, 2017

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
16-CV-1438-AJB-BLM