Escobar v. Lynch et al

Filing 22

ORDER DENYING PETITIONER'S OBJECTIONS TO THE MAGISTRATE'S FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 USC 21 FILED ON FEBRUARY 8, 2017. Signed by JUDGE LESLIE E. KOBAYASHI on 05/31/2017. -- Jose Jacobo Escobar's, Objections to the Magistrate's Findings and Recommendation to Deny Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 Filed on February 8, 2017, filed on February 13, 2017, is HEREBY DENIED and the magistrate judge's F&R is HEREBY ADOPTED. There being no remaining claims in the instant matter, the Clerk's Office is directed to enter judgment and close this case on June 21, 2017, unless Petitioner files a motion for rec onsideration of this Order by June 19, 2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
LORETTA E. LYNCH, UNITED
STATES ATTORNEY GENERAL;
)
)
MICHAEL SAMANIEGO, DISTRICT
DIRECTOR, DHS-ICE; WILLIAM
)
)
LOTHROP, WARDEN, HONOLULU
FEDERAL DETENTION CENTER,
)
)
)
Defendants.
_____________________________ )
JOSE JACOBO ESCOBAR,

CIVIL 16-00683 LEK-RLP

ORDER DENYING PETITIONER’S OBJECTIONS TO
THE MAGISTRATE’S FINDINGS AND RECOMMENDATION TO
DENY PETITION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241 FILED ON FEBRUARY 8, 2017
On February 8, 2017, the magistrate judge filed his
Findings and Recommendation to Deny Petition for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (“F&R”).

[Dkt. no. 14.]

On

February 13, 2017, Petitioner Jose Jacobo Escobar (“Petitioner”)
filed his Objections to the Magistrate’s Findings and
Recommendation to Deny Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 Filed on February 8, 2017
(“Petitioner’s Objections”).

[Dkt. no. 15.]

Respondents

Loretta E. Lynch, United States Attorney General,
Michael Samaniego, District Director, United States Department of
Homeland Security (“DHS”) – Immigration and Customs Enforcement
(“ICE”), and William Lothrop, Warden, Honolulu Federal Detention

Center (collectively “the Government”) did not file a memorandum
in opposition.

The Court finds this matter suitable for

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

However, at the request

of Petitioner, the court held a status conference on this matter
on March 17, 2017.

[Dkt. no. 20.]

In an Entering Order filed on

March 29, 2017 (“3/29/17 EO”), the Court denied Petitioner’s
Objections and adopted the F&R.

[Dkt. no. 21.]

Order supersedes the 3/29/17 EO.

The instant

After careful consideration of

the objections, supporting memorandum, and the relevant legal
authority, Petitioner’s Objections are HEREBY DENIED and the F&R
is HEREBY ADOPTED for the reasons set forth below.
BACKGROUND
A detailed background of this matter is available in
the F&R, and the Court will only repeat those facts relevant
here.

On December 30, 2016, Petitioner filed his Petition for a

Writ of Habeas Corpus Pursuant to 8 U.S.C. § 2241 (“Petition”).1
[Dkt. no. 1.]

The Government filed a memorandum in opposition on

January 27, 2017, and Petitioner filed a reply on January 31,
2017.

[Dkt. nos. 11, 12.]

Petitioner challenges his continued

1

While the Petition states that it is brought pursuant to 8
U.S.C. § 2241, it is clear to the Court that this was a
typograhical error – writs of habeas corpus are actionable
pursuant to 28 U.S.C. § 2241. This is further evinced by
Petitioner’s Objections, which correctly cites the statute.
2

detention without a bond hearing, and also states that the
Immigration Court and the Ninth Circuit Court of Appeals
misapplied the law.

[Petitioner’s Objections at 2-3.]
STANDARD

This Court reviews a magistrate judge’s findings and
recommendations under the following standard:
When a party objects to a magistrate judge’s
findings or recommendations, the district court
must review de novo those portions to which the
objections are made and “may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also United States v.
Raddatz, 447 U.S. 667, 673 (1980); United States
v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and
recommendations de novo if objection is made, but
not otherwise.”).
Under a de novo standard, this Court reviews
“the matter anew, the same as if it had not been
heard before, and as if no decision previously had
been rendered.” Freeman v. DirecTV, Inc., 457
F.3d 1001, 1004 (9th Cir. 2006); United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The
district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at
its own independent conclusion about those
portions of the magistrate judge’s findings or
recommendation to which a party objects. United
States v. Remsing, 874 F.2d 614, 616 (9th Cir.
1989).
PJY Enters., LLC v. Kaneshiro, Civil No. 12–00577 LEK–KSC, 2014
WL 3778554, at *2 (D. Hawai`i July 31, 2014) (alteration in PJY)
(citation omitted).

3

DISCUSSION
Petitioner objects to the magistrate judge’s findings
that:

(1) this Court lacks jurisdiction to consider the

Petition; (2) Petitioner is not entitled to a bond hearing until
after he is detained for 180 days; (3) Petitioner failed to
exhaust his administrative remedies; and (4) Petitioner’s removal
order is final.

[Petitioner’s Objections at 2.]

The Court will

consider each of these in turn.
I.

The Court’s Jurisdiction
Petitioner argues that “this Court has jurisdiction

over [a petition for] a writ of habeas corpus whenever there is a
constitutional challenge to prolonged incarceration or where the
prolonged detention is based on a violation or misapplication of
the law.”

[Petitioner’s Objections at 3 (citation omitted).]

The magistrate judge concluded that this Court does not have
jurisdiction to review DHS’s decision to detain Petitioner after
the expiration of his removal period.

[F&R at 12.]

The Petition is brought pursuant to 28 U.S.C. § 2241,
which states in relevant part, “[w]rits of habeas corpus may be
granted by the Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective
jurisdictions.”

28 U.S.C. § 2241(a).

Further, it is undisputed

that Petitioner is being detained pursuant to 8 U.S.C.
§ 1231(a)(6), which allows the Government to, inter alia, detain
4

an alien beyond the removal period if it is determined that the
person would “be a risk to the community or unlikely to comply
with the order of removal.”

8 U.S.C. § 1252(a)(2)(B) states:

Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such
title, and except as provided in subparagraph (D),
and regardless of whether the judgment, decision,
or action is made in removal proceedings, no court
shall have jurisdiction to review –
. . . .
(ii) any other decision or action of the
Attorney General or the Secretary of Homeland
Security the authority for which is specific
under this subchapter to be in the discretion
of the Attorney General or the Secretary of
Homeland Security, other than the granting of
relief under section 1158(a) of this
title.[2]
Thus, because § 1231(a)(6) grants the Government discretion to
detain an alien beyond the removal period and § 1252(a)(2)(B)
divests this Court and others from reviewing this very type of
discretionary action, the magistrate judge was correct in denying
the Petition on this basis.

The Court therefore DENIES

2

Subsection (D) states, in relevant part, that, “[n]othing
in subparagraph (B) or (C) . . . shall be construed as precluding
review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in
accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). 28
U.S.C. §1361 concerns the districts courts’ right to consider a
mandamus action against a government officer, employee, or
agency, and § 1651 gives authority to all courts “established by
Act of Congress” to issue writs. Finally, 8 U.S.C. § 1158
governs applications for asylum.
5

Petitioner’s Objections related to this Court’s jurisdiction to
review the Government’s discretionary actions.3
II.

The Right to a Bond Hearing
Petitioner contends that the Government has already

determined that it will continue to detain him and that “it would
be a waste of the government’s resources and irrational to have
to wait for the six (6) months to elapse before he is afforded a
bond hearing, when it is crystal clear that ICE has already made
its decision to keep Petitioner in jail beyond the six month
threshold.”

[Petitioner’s Objections at 6-7.]

The magistrate

judge concluded that “[b]ecause Petitioner has not been detained
for more than 180 days, he is not yet entitled to a bond hearing
before an immigration judge and his continued detention is
presumptively valid at this time.”

[F&R at 11 (citations

omitted).]
In Diouf v. Napolitano, the Ninth Circuit explained
that, “the DHS regulations providing for the initial, 90-day
review do not raise serious constitutional concerns.”

3

634 F.3d

The Court notes that a vast majority of Petitioner’s
Objections appear to address the Government’s discretionary
authority to detain Petitioner. See Petitioner’s Objections at
7-17 (arguing that the Government, inter alia: did not comply
with relevant guidelines when determining whether to detain
Petitioner; incorrectly classified Petitioner’s prior conviction;
and did not explain its determination that Petitioner is
“dangerous.”). The Court does not need to address these
arguments in detail because it does not have jurisdiction to
consider these issues.
6

1081, 1091 (9th Cir. 2011).

Moreover, “[t]he 90-day review

authorizes detention for only an additional 90 days, bringing the
alien’s period of detention (including the removal period) to 180
days.”

Id.

Because of “the relatively limited period of

detention involved,” the Ninth Circuit held that “the process
afforded by the DHS regulations is adequate.”4

Id.

Petitioner

cites no authority to support his position that he is entitled to
a bond hearing prior to the expiration of 180 days.5
The Court also notes that, at the time the F&R was
filed, Petitioner had only been detained for three and a half
months.

See F&R at 11.

It has now been over 180 days since

Petitioner was detained by the Government.

However, Petitioner

has not alerted the Court to the Government’s failure to hold a

4

Petitioner challenges his detention based, in part, on
what he believes is a violation of his right to due process
pursuant to the Fifth Amendment to the United States
Constitution, [Petitioner’s Objections at 10-13,] and because his
detention amounts to double jeopardy [id. at 17]. First,
“[b]ecause deportation proceedings are civil and not criminal in
nature, they cannot form the basis for a double jeopardy claim.”
United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir. 1994).
Second, this Court has already explained that, in Diouf, the
Ninth Circuit ruled that the 180-day detention policy was
constitutionally sufficient.
5

Petitioner does cite a footnote in Diouf, wherein the
Ninth Circuit states, “DHS should be encouraged to afford an
alien a hearing before an immigration judge before the 180-day
threshold has been reached if it is practical to do so and it has
already become clear that the alien is facing prolonged
detention.” 634 F.3d at 1092 n.13 (emphasis in Diouf). This
suggestion, however, is not mandatory (although quite practical
and humane) and does not overrule the Ninth Circuit’s holding
that a 180-day detention is presumptively reasonable.
7

bond hearing.
Court.

As such, this issue is not presently before the

The Court therefore DENIES Petitioner’s Objections

regarding a hearing on Petitioner’s continued detention.

This

denial is without prejudice to Petitioner filing a motion
identifying the Government’s failure to comply with Diouf.
III. Failure to Exhaust Administrative Remedies
While it was unclear from the Petition, the magistrate
judge believed that Petitioner may have been challenging the
Immigration Judge’s denial of a bond hearing in January 2017.
See F&R at 13.

Accordingly, the magistrate judge explained that

Petitioner did not appeal this decision to the Board of
Immigration Appeals (“BIA”), and therefore did not exhaust his
administrative remedies.

[Id. at 14.]

In addition, the

magistrate judge correctly noted that, under 28 U.S.C. § 2241,
exhaustion is a prudential requirement.

After weighing the

relevant factors, the magistrate judge found that there was no
reason to waive exhaustion in the instant matter.
14.]

Petitioner’s Objections reiterate that:

[Id. at 13-

(1) Petitioner has

a right to a bond hearing before the expiration of 180 days; and
(2) the Government misapplied its own guidelines.
Objections at 5.]

[Petitioner’s

As such, Petitioner does not provide any

argument challenging the magistrate judge’s conclusions regarding
prudential standing in this matter.

Further, the Court has

already addressed Petitioner’s arguments regarding a bond hearing

8

and the Government’s discretion when it comes to detention.

In

short, Petitioner does not challenge the magistrate judge’s
determination on exhaustion, and his alternative arguments are
unavailing.

Petitioner’s Objections regarding exhaustion of

remedies are HEREBY DENIED.
IV.

The Finality of the Removal Order
Finally, Petitioner submits that the removal order at issue

here is not final because of a pending appeal before the Ninth
Circuit.

See Petitioner’s Objections at 3.

Petitioner provides

only a one-sentence argument for his position on this matter.
The magistrate judge explained that:
Petitioner filed a new petition for review with
the Ninth Circuit on December 14, 2016,
challenging the BIA’s decision denying his second
motion to reopen proceedings. Escobar v. Lynch,
No. 16-73904, Docket No. 1 (9th Cir. Dec. 14,
2016). Petitioner also filed with the Ninth
Circuit another motion to stay his removal.
Escobar v. Lynch, No. 16-73904, Docket No. 4 (9th
Cir. Dec. 15, 2016). By operation of Ninth
Circuit General Order 6.4(c)(1)(3), a temporary
stay or removal is in effect pending further order
of the Ninth Circuit. Escobar v. Lynch, No. 1673904, Docket No. 7 (9th Cir. Dec. 16, 2016). The
government’s response to Petitioner’s motion to
stay removal is due on March 10, 2017. Id. This
petition for review, and briefing on the stay
motion, remains ongoing. Id.
[F&R at 4.]

Federal law provides that a removal order is final

when there is “a determination by the Board of Immigration
Appeals affirming such order” or “the expiration of the period in
which the alien is permitted to seek review of such order by the

9

Board of Immigration Appeals,” whichever comes first.
U.S.C. § 1101(a)(47)(B)(i)-(ii).

See 8

Here, the BIA affirmed the

Immigration Judge’s order of removal on July 22, 2014.

[Mem. in

Opp., Exh. 2 (BIA’s decision dismissing Petitioner’s appeal of
the Immigration Judge’s July 2012 decision).]

In addition, there

is a well-recognized distinction between a direct review of a
removal order and a collateral review of such an order.

See,

e.g., Diouf, 634 F.3d at 1085-86 (extending the procedural
safeguards afforded to an alien subject to prolonged detention
while seeking direct review of any administrative determination
of removal, pursuant to 8 U.S.C. § 1226(a), to aliens subject to
prolonged detention while seeking collateral review of their
removal proceedings, pursuant to § 1231(a)(6)).

Moreover, in

Diouf, the Ninth Circuit expressly stated that the petitioner in
that case, who had a motion to reopen pending in the court of
appeals, had an outstanding “collateral challenge to his removal
order.”

634 F.3d at 1085.

In short, Petitioner’s collateral

challenge to try to reopen the removal proceedings does not mean
that his removal order is not final.

Petitioner’s objection to

the magistrate judge’s determination of the finality of his
removal order is HEREBY DENIED.
Finally, Petitioner, understandably, must feel such
dismay over his continued detention.

The Court recognizes the

harm inflicted upon his family and business because of it.

10

Denial of Petitioner’s Objections is not done lightly or without
recognition of his and his family’s torment throughout this
ordeal.
CONCLUSION
On the basis of the foregoing, Jose Jacobo Escobar’s,
Objections to the Magistrate’s Findings and Recommendation to
Deny Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 Filed on February 8, 2017, filed on February 13, 2017, is
HEREBY DENIED and the magistrate judge’s F&R is HEREBY ADOPTED.
There being no remaining claims in the instant matter, the
Clerk’s Office is directed to enter judgment and close this case
on June 21, 2017, unless Petitioner files a motion for
reconsideration of this Order by June 19, 2017.
IT IS SO ORDERED.

11

DATED AT HONOLULU, HAWAII, May 31, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOSE JACOBO ESCOBAR VS. LORETTA E. LYNCH, ETC., ET AL; CIVIL 1600683 LEK-RLP; ORDER DENYING PETITIONER’S OBJECTIONS TO THE
MAGISTRATE’S FINDINGS AND RECOMMENDATION TO DENY PETITION FOR A
WRIT OF HABEAS CORPUS PURSUANT TO 27 U.S.C. § 2241 FILED ON
FEBRUARY 8, 2007

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