Oded v. Sessions III
Filing
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ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Gonzalo P. Curiel on 7/23/18.(All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MARTIN CRUZ ODED,
Case No.: 3:18-cv-00647-GPC-NLS
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Petitioner,
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v.
ORDER DENYING PETITION FOR
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JEFFERSON B. SESSIONS III,
WRIT OF HABEAS CORPUS
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Attorney General,
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Respondent.
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On March 28, 2018, Petitioner Martin Cruz Oded (“Petitioner”), proceeding pro se,
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filed a petition for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2241. (ECF
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No. 1.) He moved for immediate release from custody and declarations that his detention
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and removal were unauthorized and unconstitutional. (Id. at 8.1) Respondent is Jefferson
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B. Sessions III, Attorney General of the United States of America. (Id. at 1.) On May 4,
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2018, Respondent filed a return to petition for writ of habeas corpus. (ECF No. 5.) On
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June 1, 2018, Petitioner timely filed a reply reiterating his request for the Court to review
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the constitutionality of his detention and removal. (ECF No. 7.) On June 27, 2018, the
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Page numbers are based on the CM/ECF pagination.
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Court ordered Respondent to respond to Petitioner’s reply. (ECF No. 8.) On July 7, 2018,
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Respondent filed a sur-reply. (ECF No. 9.) After a thorough review of the issues and the
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documents presented, the Court DENIES the petition for writ of habeas corpus.
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I.
Background
Petitioner is a native and citizen of Mexico. (ECF No. 1 at ¶ 8.) On April 15, 1994,
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Petitioner legally entered the United States as a lawful permanent resident of the United
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States of America. (Id. at ¶ 11.) In 2008, Petitioner plead guilty to second degree robbery
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under California Penal Code section 211 and was sentenced to two years in prison. (Id.)
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On November 4, 2010, after completing his sentence, Petitioner was charged with
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deportability for conviction of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii)
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based on his 2008 conviction. (Id., Ex. 1 at 10.) His conviction was classified as a crime
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of violence as defined by 8 U.S.C. § 1101(a)(43)(F) and amounted to an aggravated
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felony under 18 U.S.C. § 16. (Id.)
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On May 19, 2011, an immigration judge (“IJ”) found that the conviction was
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accurately classified as a “crime of violence,” subsequently found Petitioner ineligible for
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“cancellation of removal,” and ordered Petitioner removed from the United States to
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Mexico. (Id. at ¶ 14; ECF No. 5-1, Ex. at 11.) On October 12, 2011, the Board of
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Immigration Appeals (“BIA”) affirmed the IJ’s order. (ECF No. 5-1, Ex. at 13.) On
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March 10, 2014, the IJ denied Petitioner’s application for relief from removal and
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ordered him removed to Mexico. (Id., Ex. at 33-37.) On June 19, 2014, during the appeal
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to the BIA, the IJ granted Petitioner’s request for a change in custody status and set bond
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at $15,000. (Id., Ex. at 40.) On June 26, 2014, Petitioner was released on bond. (Id., Ex.
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at 41-44.) On February 13, 2015, the BIA issued a final order reaffirming the IJ’s order
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for removal. (Id., Ex. at 45-48.) On March 9, 2015, Petitioner filed a petition for review
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with the Ninth Circuit. See Oded v. Lynch, No. 15-70720 (9th Cir. 2015). On March 10,
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2015, the Ninth Circuit granted a stay of removal. (ECF No.7, Ex. 6 at 32; ECF No. 9-1,
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Ex. at 64.)
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On November 1, 2017, Petitioner was arrested by the San Diego Police Department.
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(ECF No. 5-1, Ex. at 49-52.) Then, on November 17, 2017, Petitioner was released to the
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custody of Immigration and Customs Enforcement (“ICE”). (Id.) On the same day,
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Petitioner was removed to Mexico and ICE cancelled his $15,000 bond. (ECF No. 9-1,
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Ex. at 64). It appears that ICE employees misinterpreted the Ninth Circuit’s order. (ECF
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No. 5-1, Ex. at 51; ECF No. 9-1, Ex. at 64, 72.) In mid-December 2017, ICE became
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aware of its error and began arranging for Petitioner’s parole back into the United States.
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(ECF No. 9-1, Ex. at 79-81.) On January 6, 2018, Petitioner was paroled back into
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detention. (ECF No. 1, Ex. 2 at 13, Ex. 3 at 15, Ex. 4 at 17.) On March 28, 2018, while in
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the custody of ICE, Petitioner filed his petition for writ of habeas corpus with this Court
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seeking immediate release and declarations of the unconstitutionality and unauthorized
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nature of his detention and removal. (ECF No. 1.)
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On April 17, 2018, the Supreme Court ruled that 18 U.S.C. § 16(b), as incorporated
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into the aggravated felony definition in 8 U.S.C. § 1101(a)(43)(F), is unconstitutionally
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vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). On April 24, 2018, in light
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of Dimaya, the government moved to remand the Ninth Circuit appeal to the BIA. (ECF
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No. 5-1, Ex. at 53-56.) The IJ, after reviewing Petitioner’s custody status, ordered him
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released from custody on his own recognizance. (ECF No. 5-1, Ex. at 61.) On April 27,
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2018, the Ninth Circuit ordered that Petitioner’s case be remanded. (ECF No. 5-1, Ex. at
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53-56.) On May 3, 2018, during the pendency of this case, ICE released Petitioner from
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custody on his own recognizance under the “Alternatives to Detention” (“ATD”)
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program. (ECF No. 7 at 5.) Petitioner did not appeal the IJ’s decision to release him from
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custody. (ECF No. 9-1, Ex. at 64.)
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On May 4, 2018, Respondent filed a response requesting that this Court dismiss
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Petitioner’s case for lack of subject matter jurisdiction. (ECF No. 5.) On June 1, 2018,
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Petitioner filed a reply reiterating his request for the Court to review the constitutionality
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of his detention and removal. (ECF No. 7.) In his reply, Petitioner sought an order
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declaring that his conditional release under the ATD program constituted continued
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detention that was unauthorized by the Immigration and Nationality Act (“INA”) and
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violated his due process rights and that his November 17, 2017 forced removal violated
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the Ninth Circuit’s stay of removal and his procedural due process rights. (Id. at 23.)
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On June 15, 2018, Petitioner was arrested for public intoxication and transferred to the
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San Diego Sheriff’s Department on an active warrant, after which ICE terminated his
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participation in the ATD program. (ECF No. 9-1, Ex. at 63.) On June 26, 2018, Petitioner
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was returned to ICE custody, and on that same day, he was released from custody on an
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Order of Supervision, without bond or participation in the ATD program. (Id.) On July
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11, 2018, Respondent filed a sur-reply reiterating his request for the Court to dismiss
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Petitioner’s case, contending that the case is moot. (ECF No. 9 at 1.)
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II.
Legal Standard
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Under 28 U.S.C. § 2241(c), a “writ of habeas corpus shall not extend to a prisoner
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unless. . . . (3) He is in custody in violation of the Constitution or laws or treaties of the
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United States.” 8 U.S.C. § 2241(c). Pursuant to 28 U.S.C. § 2241, alien detainees can
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properly challenge the extent of the Attorney General’s authority to detain a removable
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alien under the statutes authorizing detention. Zadvydas v. Davis, 533 U.S. 678, 687-89
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(2001); see also Demore v. Kim, 538 U.S. 510, 516-17 (2003).
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III.
Discussion
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In the petition, Petitioner sought release from his January 6, 2018 detention,
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contending that his 2008 conviction of robbery should not have been considered a
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deportable offense. (ECF No. 1 at ¶ 35.) He also argued that the length of his detention
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was beyond the six-month statutorily authorized reasonableness limitation. (Id.) In his
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reply, Petitioner sought release from the ATD program on the grounds that his
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supervised release constituted continued detention and was both unauthorized and a
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violation of his due process rights. (ECF No. 7 at 5, 23.) In addition, Petitioner sought an
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order declaring that his November 17, 2017 forced removal to Mexico violated the Ninth
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Circuit’s stay of removal and his procedural due process rights. (Id. at 19, 23.)
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Respondent contends that this Court has no jurisdiction to review Petitioner’s
challenge to his removal proceedings because under the REAL ID Act, Pub. L. No. 1094
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13, Div. B., 119 Stat. 231 (2005), a petition for review in the Court of Appeals is the
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“sole and exclusive means for judicial review of an order of removal.” (ECF No. 5 at 4
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(citing Singh v. Holder, 638 F.3d 1196, 1210 (9th Cir. 2011) (quoting 8 U.S.C. §
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1252(a)(5))). Furthermore, Respondent contends that Petitioner’s June 26, 2018 release
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from custody without bond or participation in the ATD program renders his petition
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moot. (ECF No. 9 at 1.)
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A. Challenge to Removal Order
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In his petition, Petitioner sought release from his January 6, 2018 detention,
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contending that his 2008 conviction of robbery should not have been considered a
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deportable offense. (ECF No. 1 at 8.) Petitioner argues that the petition presents
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questions of law, including “application of law to undisputed facts.” (ECF No. 7 at 2.).
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The REAL ID Act of 2005 divested district court jurisdiction over habeas petitions
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challenging orders of removal; however, the district court retains jurisdiction over
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challenges to detention. Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012)
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(affirming district court’s order that it lacked jurisdiction because Petitioner’s claim
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indirectly attacks his order of removal) (citation omitted); Singh v. Gonzales, 499 F.3d
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969, 979 (9th Cir. 2007) (reversing district court’s order that it lacked jurisdiction
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because a successful petition would lead to nothing more than “a day in court” for
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Petitioner); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (stating that the
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REAL ID Act eliminated federal habeas corpus jurisdiction over final orders of
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removal). Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge the
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extent of the Attorney General’s authority to detain a removable alien under the statutes
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authorizing detention. Zadvydas, 533 U.S. at 687-89; see also Kim, 538 U.S. at 516-17.
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In contrast, claims that challenge the procedure and substance of an agency
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determination that is “inextricably linked” to the order of removal are barred. See
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Martinez, 704 F.3d at 623.
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Petitioner contends that his criminal conviction of robbery should not be considered a
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deportable offense because the federal criminal code’s definition of “crime of violence,”
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as incorporated into the INA’s definition of aggravated felony, is overbroad and violates
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due process. (ECF No. 1 at ¶¶ 10, 33-34.) This Court does not have jurisdiction to review
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this challenge, as it is “inextricably linked” to an order of removal. See Martinez, 704
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F.3d at 623. Thus, the Court declines to rule on the effect of the Dimaya decision on this
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petition and DENIES the petition on this issue.
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B. Challenge to Detention
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Petitioner initially sought release from his January 6, 2018 detention, contending that
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the length of his detention was beyond the six-month statutorily authorized
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reasonableness limitation. (ECF No. 1 at 8.) In his reply, he challenged his supervised
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release under the ATD program, imposed on May 3, 2018, as an improper continued
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detention. (ECF No. 7 at 5, 23.) Respondent argued in his sur-reply that Petitioner’s
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release from custody without bond or ATD on June 26, 2018 renders his petition moot.
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(ECF No. 9 at 1.)
Under 28 U.S.C. § 2241, the Court has jurisdiction to consider a petitioner’s
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challenges to his detention. Zadvydas, 533 U.S. at 687-89. At any stage of the
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proceeding, a case may become moot when it “no longer present[s] a case or controversy.
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. .” Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2001) (quoting Spencer v. Kemna, 523
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U.S. 1, 7 (1998)). A habeas petition no longer presents a live case or controversy when a
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petitioner is released from custody, as it renders challenges to the legality of his extended
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or indefinite detention moot. Id. at 1064-65 (citing Riley v. INS, 310 F.3d 1253, 1256-57
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(10th Cir. 2002) (holding that “[a]ppellant’s release from detention moots his challenge
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to the legality of his extended detention”) and Sayyah v. Farquharson, 382 F.3d 20, 22 n.
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1 (1st Cir. 2004) (holding that a “claim [of] indefinite detention. . . was mooted by [a
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petitioner’s] subsequent release”)). Here, Petitioner’s recent release from custody without
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bond or ATD on June 26, 2018 renders his petition moot.2 Accordingly, because the
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Respondent also argues that Petitioner’s failure to appeal the IJ’s order mandating his release from
custody under the ATD program constituted a failure to exhaust his remedies. This Court declines to
address a new issue raised for the first time in the sur-reply. Thompson v. Commissioner, 631 F.2d 642,
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claim no longer presents a live case or controversy, the Court DENIES the claim as
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moot.
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C. Forced Removal
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Petitioner seeks an order declaring that his November 17, 2017 forced removal to
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Mexico violated the Ninth Circuit’s stay of removal and his procedural due process
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rights.
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The Ninth Circuit has held that the INA “restricts jurisdiction only with respect to the
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executive’s exercise of discretion.” Singh, 638 F.3d at 1202 (citing 8 U.S.C. §
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1252(a)(2)(B)(ii) (2005)). Nonetheless, district courts have habeas jurisdiction to review
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a petitioner’s claims of constitutional and legal error under 8 U.S.C. § 1252(a)(2)(B)(ii)
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of the INA. Id. A petitioner’s claim that the execution of his removal order was in
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violation of a stay is directly connected to the execution of the removal order and
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constitutes a challenge of the executive’s discretion; thus, the district court does not have
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jurisdiction to hear such claims. See Silva v. United States, 866 F.3d 938, 940 (8th Cir.
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2017) (holding that district court lacked jurisdiction to hear claim challenging the
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execution of a removal order in violation of a stay). Accordingly, the Court declines to
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grant Petitioner’s request for an order declaring that his forced removal violated the Ninth
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Circuit’s stay of removal; however, this Court retains jurisdiction over Petitioner’s claims
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regarding the constitutionality of his forced removal.
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As to this remaining claim, the Court finds it, too is moot. The Declaratory Judgment
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Act, in a case of “actual controversy,” allows any court to “declare the rights and other
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legal relations of any interested party seeking such declaration.” City of Colton v.
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American Promotional Events, Inc.-West, 614 F.3d 998, 1007 (9th Cir. 2010).
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Declaratory relief requires the presence of an actual controversy. Id; see Merit
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Healthcare Int’l, Inc. v. Merit Med. Sys., Inc., 721 Fed. App’x 628, 628-29 (2018)
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649 (9th Cir. 1980) (“The general rule is that appellants cannot not raise a new issue for the first time in
their reply briefs”).
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(affirming district court’s dismissal of declaratory judgment action where manufacturer
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failed to show actual controversy). Here, Petitioner was paroled back into the United
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States on January 6, 2018 and has been released from custody on an Order of Supervision
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without bond or participation in the ATD program on June 26, 2018. As a result,
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Petitioner’s declaratory claim lacks an actual controversy and the Court DENIES this
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claim as moot.
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IV.
Conclusion
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The Court DENIES the petition for writ of habeas corpus.
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IT IS SO ORDERED.
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Dated: July 23, 2018
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