Chivilchez v. United States Attorney General et al

Filing 19

OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 7/27/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JESUS CHIVILCHEZ, Petitioner, vs. Case No. 2:09-cv-475-FtM-29SPC

ERIC H. HOLDER, Attorney General of the United States, JANET NAPOLITANO, Secretary of Department of Homeland Security, DAVID L. NEAL, Acting Chairman Executive Office of Immigration Review, MICHAEL C. MCGOINGS, Acting Chief Immigration Judge, Board of Immigration Appeals, MICHAEL ROZOS, Field Office Director of Immigration and Customs Enforcement in Miami, Florida, Respondents. ___________________________________ OPINION AND ORDER This matter comes before the Court on a Petition for Writ of Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2241 filed on June 12, 2009, in the Southern District of Florida and transferred to the Middle District of Florida, Fort Myers Division pursuant to an Order (Doc. #11) on July 22, 2009, because petitioner Jesus

Chivilchez (Petitioner) is being held in detention by the United States Department of Homeland Security in Moore Haven, Florida. Petitioner claims that he is entitled to a bond hearing by an Immigration Judge, but has been denied such a detention hearing based upon an erroneous interpretation of 8 U.S.C. § 1226(c).

On April 22, 2009, Petitioner was arrested in Miami-Dade County for leaving the scene of an accident and driving with a suspended license. 27, 2009.) (These criminal charges were dismissed on May

On April 29, 2009, the Department of Homeland Security

served Petitioner with a Notice to Appear charging him with being subject to removal under the Immigration and Naturalization Act as an alien who was not admitted or paroled into the United States, and as an alien who at the time of applying for admission into the United States did not have the required documentation. (Doc. #1,

pp. 12-14.) On May 20, 2009, an Immigration Judge found Petitioner was subject to mandatory detention under § 1226(c), and therefore was not eligible for a bond hearing. (Id. at p. 21.) On June 12,

2009, Petitioner filed a motion for reconsideration of the bond determination, but the request for a bond hearing was denied on June 20, 2009. In pertinent part, § 1226(c) provides that the Attorney General shall take into custody any alien who has committed certain qualifying offenses. Petitioner concedes that he was convicted of

crimes that would subject him to mandatory detention, but asserts that he is not eligible for mandatory detention because those crimes were committed before the effective date (October 9, 1998) of § 1226(c). Rather, Petitioner asserts, an alien who commits a

crime listed in § 1226(c) before the effective date of that provision is not subject to mandatory detention. for detention to be mandatory,
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In other words, the underlying

the

arrest

on

conviction 1226(c).

must

have

occurred

after

the

effective

date

of

§

In Demore v. Kim, 538 U.S. 510 (2003), an alien had been convicted of qualifying offenses prior to the effective date of § 1226(c). The alien did not dispute the conclusion that he was

subject to mandatory detention under § 1226(c), but argued that due process was violated without a determination that he posed either a danger to society or a flight risk. the lower court's determination, on release The Supreme Court reversed found such that an § 1226(c)'s alien was

and of

absolute

prohibition

constitutional. The Court determines that pursuant to § 1226(c) Petitioner was not entitled to a bond hearing. Therefore, Petitioner is not being

held unlawfully, and his 28 U.S.C. § 2241 petition is denied. Accordingly, it is now ORDERED: 1. DENIED. 2. The Clerk shall enter judgment accordingly, terminate all The Petition for Writ of Habeas Corpus (Doc. #1) is

deadlines, and close the file. DONE AND ORDERED at Fort Myers, Florida, this July, 2009. 27th day of

Copies: Counsel of record
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