Ramirez v. Sessions et al

Filing 12

ORDER Denying Petition for Writ of Habeas Corpus; Denying as Moot 2 Motion for Preliminary Injunction. Signed by Judge Michael M. Anello on 7/24/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17cv1161 MMA (JLB) AARON RAMIREZ, Petitioner, 12 13 v. 14 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; SESSIONS, et al., [Doc. No. 1] Respondents. 15 DENYING AS MOOT MOTION FOR PRELIMINARY INJUNCTION 16 17 [Doc. No. 2] 18 19 20 Petitioner Aaron Ramirez has filed a petition for writ of habeas corpus (“petition”) 21 pursuant to Title 28, United States Code, section 2241, seeking his release from the 22 custody of the Department of Homeland Security, Immigration and Customs 23 Enforcement (“ICE”). 1 See Doc. No. 1. In addition, Petitioner moves the Court for an 24 order preliminarily enjoining his detention by ICE, pending a final resolution of his 25 26                                                 27 1 28 District courts have jurisdiction to adjudicate habeas petitions brought by aliens challenging executive detention. Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (citing INS v. St. Cyr, 533 U.S. 289, 301-03 (2001). 1 17cv1161 MMA (JLB) 1 petition. See Doc. No. 2. The government filed a return to the petition, to which 2 Petitioner replied. See Doc. Nos. 9, 11. For the reasons set forth below, the Court 3 DENIES the petition and DENIES AS MOOT Petitioner’s motion for injunctive relief.2 4 BACKGROUND 5 On March 6, 2017, Petitioner, a Mexican National and Legal Permanent Resident 6 of the United States, applied for permission to enter into the United States from Mexico 7 through the Otay Mesa, California, Port of Entry. Petitioner was driving a vehicle 8 bearing California license plates. A narcotics detection dog alerted to the rear 9 undercarriage area of the vehicle. During the secondary inspection of the vehicle, 10 officers discovered twenty-five packages, which field-tested positive for cocaine and 11 methamphetamine. During a post-arrest interview, Petitioner admitted knowledge of the 12 drugs within the vehicle, and stated he was to be paid $3,000 to deliver the drugs to San 13 Diego. 14 On March 15, 2017, ICE issued a Notice to Appear charging Petitioner as being 15 removable due to “reason to believe [he] is or has been an illicit trafficker in any 16 controlled substance or in any listed chemical (as defined in section 102 of the Controlled 17 Substances Act),” in violation of Section 212(a)(2)(C)(i) of the Immigration and 18 Nationality Act. See Pet. Ex. A. In support of the charge, ICE relied on Petitioner’s 19 March 6, 2017 arrest. Petitioner has been detained in ICE custody since his release on 20 bond in the underlying criminal proceedings. 21 DISCUSSION 22 23 Petitioner argues that ICE lacks the statutory authority to detain him because he was paroled into the United States under 8 U.S.C. § 1182(d)(5)(A). This section of the 24 25 26 27 28                                                 2 The Court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). Here, the record conclusively establishes that Petitioner is not entitled to the writ he seeks, therefore an evidentiary hearing is neither warranted nor required under 28 U.S.C. § 2243. 2 17cv1161 MMA (JLB) 1 Immigration and Nationality Act (“INA”) provides, in pertinent part: 2 The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. 3 4 5 6 7 8 9 8 U.S.C. 1182(d)(5)(A). The statute permits the Attorney General to parole3 aliens into 10 the United States for, among other purposes and as relevant here, criminal prosecution. 11 See Matter of Badalamenti, 19 I. & N. Dec. 623, 626 (1988) (“It is clear from the 12 legislative history of this provision that Congress intended to empower the Attorney 13 General to parole an alien for the purpose of prosecution.”). 14 By the statute’s own terms, parole under Section 1182(d)(5)(A) is temporary, and 15 subject to revocation or termination. Pursuant to 8 C.F.R. § 212.5(e)(1), the applicable 16 implementing regulation, the parole of an alien “shall be automatically terminated 17 without written notice . . . at the expiration of the time for which parole was authorized,” 18 when parole was initially granted. In this case, the expiration date was recorded on the I- 19 94 Arrival/Departure Record created at the time of Petitioner’s apprehension at the 20 border. According to the I-94 card, Petitioner was paroled into the United States “until 21 April 6, 2017.” See Pet. Ex. F. Petitioner’s parole would have automatically terminated 22 on April 6, 2017. However, Petitioner’s parole terminated prior to that date. 23 24 As noted above, ICE served Petitioner with a Notice to Appear on March 15, 2017, charging him as being removable due to “reason to believe [he] is or has been an illicit 25 26                                                 27 3 28 Under these circumstances, “[p]arole is the legal fiction whereby an alien is allowed to be physically present in the United States for a specific purpose.” Barney v. Rogers, 83 F.3d 318, 320 n.1 (9th Cir. 1996). 3 17cv1161 MMA (JLB) 1 trafficker in any controlled substance or in any listed chemical (as defined in section 102 2 of the Controlled Substances Act).” See Pet. Ex. A. “When a charging document is 3 served on the alien, the charging document will constitute written notice of termination of 4 parole, unless otherwise specified.” 8 C.F.R. § 212.5(e)(2)(i). Therefore, Petitioner’s 5 parole terminated on March 15, 2017, when he was served with the Notice to Appear. 6 Once his parole terminated, Petitioner had to be “returned to the custody from which he 7 was paroled.” 8 U.S.C. § 1182(d)(5)(A). 8 In sum, although Petitioner was initially paroled into the United States under 9 Section 1182(d)(5)(A), it appears his parole was temporary and set to automatically 10 terminate on April 6, 2017. On March 15, 2017, the Attorney General charged Petitioner 11 and initiated removal proceedings, thereby terminating his parole. It was within the 12 Attorney General’s discretion to decide that the purpose of Petitioner’s parole had been 13 served, see 8 U.S.C. § 1182(d)(5)(A), a decision which Petitioner challenges, but this 14 Court lacks jurisdiction to review. Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010) 15 (noting that “judicial review of a discretionary determination is . . . expressly precluded 16 by 8 U.S.C. § 1252(a)(2)(B)(ii).”). When his parole terminated, Petitioner was “restored 17 to the status that he . . . had at the time of parole,” 8 C.F.R. § 212.5(e)(2)(i), according 18 ICE the authority to detain Petitioner as “an alien seeking admission” who “is not clearly 19 and beyond a doubt entitled to be admitted” into the United States. 8 U.S.C. § 20 1225(b)(2)(A). 21 Moreover, Petitioner is not being detained in violation of his Fifth Amendment 22 rights. Petitioner argues that his “detention in ICE custody is guaranteed to deprive him 23 of either his Fifth Amendment right to avoid self-incrimination or his Fifth Amendment 24 right to a meaningful and fair opportunity to apply for relief, neither of which is 25 constitutionally permissible.” Pet. at 10. Petitioner has not yet had to make the choice, 26 and in any event, this Court is not the appropriate forum to adjudicate the issue. See 8 27 U.S.C. § 1252(a)(2)(D) (jurisdiction to review substantial constitutional claims or 28 questions of law arising out of removal proceedings lies with the courts of appeal). 4 17cv1161 MMA (JLB) 1 Nor does Petitioner’s detention run afoul of his right to procedural due process. 2 Petitioner was paroled into the United States based on the pending criminal proceedings. 3 He was provided with notice on the I-94 card that his temporary parole would 4 automatically expire, but he was served with a Notice to Appear prior to the expiration 5 date. The Notice to Appear constituted notice that the Attorney General had exercised 6 his discretion to initiate removal proceedings and terminate Petitioner’s parole. See 8 7 C.F.R. § 212.5(e)(2)(i). Petitioner received the process he was due. 8 CONCLUSION 9 Based on the foregoing, the Court concludes that Petitioner is not in Respondents’ 10 “custody in violation of the Constitution or laws or treaties of the United States.” 28 11 U.S.C. § 2241(c)(3). Accordingly, the Court DENIES the petition for writ of habeas 12 corpus and DENIES AS MOOT Petitioner’s motion for preliminary injunctive relief. 13 The Clerk of Court is instructed to enter judgment accordingly and close the case.4 14 15 IT IS SO ORDERED. DATE: July 24, 2017 16 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28                                                 4 The Court notes that Title 28, section 2253, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), does not require that Petitioner receive a certificate of appealability (“COA”) in order to appeal. See Forde v. United States Parole Comm’n, 114 F.3d 878, 879 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(1)); see also Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“The plain language of § 2253(c)(1) does not require a petitioner to obtain a COA in order to appeal the denial of a § 2241 petition.”). 5 17cv1161 MMA (JLB)

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