Diaz-Holguin v. Keisler et al

Filing 30

ORDER. The magistrate judges Recommendation on Respondents Motion To Dismiss (Docket No. 14) 27 filed 02/25/2009, is APPROVED and ADOPTED as an order of this court. The respondents Motion To Dismiss 14 filed 05/02/2008 is GRANTED. as to the app licants claim concerning his detention by U.S. Immigration and Customs Enforcement. The Petitioners Memorandum of Law in Support of Petition for Writ of Habeas Corpus 11 filed 04/03/2008, read as an application for writ of habeas corpus, is DENIED as moot as to the applicants claim concerning his detention by U.S. Immigration and Customs Enforcement. The respondents Motion To Dismiss 14 filed 05/02/2008, is DENIED otherwise. As required by 28 U.S.C. § 1631, the applicants claim challenging the apparent reinstatement of the order of removal concerning the applicant is TRANSFERRED to the United States Court of Appeals for the Tenth Circuit. This case is CLOSED by Judge Robert E. Blackburn on 03/16/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 08-cv-00460-REB-MJW DIMAS ARMANDO DIAZ-HOLGUIN, Applicant, v. PETER KEISLER, Acting Attorney General of the United States, KEVIN D. ROONEY, Dir. EOIR, Immigration Court, and MICHAEL CHERTOFF, Secretary, DHS, Respondents. ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Blackburn, J. This matter is before me on the following: (1) the Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus [#11] filed April 3, 2008; (2) the respondents' Motion To Dismiss [#14] filed May 2, 2008; and (3) the magistrate judge's Recommendation on Respondents' Motion To Dismiss (Docket No. 14) [#27] filed February 25, 2009. As noted by the magistrate judge, the applicant's memorandum of law [#11] is the applicant's operative pleading. The applicant has not filed a separate application for writ of habeas corpus. I approve and adopt the magistrate judge's recommendation, and I grant the motion to dismiss in part and deny the motion in part. None of the parties have filed any objections to the magistrate judge's recommendation. Therefore, I am required only to review the recommendation for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). The recommendation is detailed and well-reasoned. Finding no error, much less plain error, in the magistrate judge's reasoning and recommended

disposition, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted. THEREFORE, IT IS ORDERED as follows: 1. That the magistrate judge's Recommendation on Respondents' Motion To Dismiss (Docket No. 14) [#27] filed February 25, 2009, is APPROVED and ADOPTED as an order of this court; 2. That the respondents' Motion To Dismiss [#14] filed May 2, 2008, is GRANTED as to the applicant's claim concerning his detention by U.S. Immigration and Customs Enforcement; 3. That the Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus [#11] filed April 3, 2008, read as an application for writ of habeas corpus, is DENIED as moot as to the applicant's claim concerning his detention by U.S. Immigration and Customs Enforcement; 4. That the respondents' Motion To Dismiss [#14] filed May 2, 2008, is DENIED otherwise ; 5. That as required by 28 U.S.C. § 1631, the applicant's claim challenging the apparent reinstatement of the order of removal concerning the applicant is TRANSFERRED to the United States Court of Appeals for the Tenth Circuit; and 6. That this case is CLOSED. Dated March 16, 2009, at Denver, Colorado. BY THE COURT:

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