Salas Velazquez v. Moore et al

Filing 9

REPORT AND RECOMMENDATIONS re 4 MOTION to Dismiss Respondents' Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus filed by Marc Moore, Gary Gomez, 1 Petition for Writ of Habeas Corpus filed by Luis Gerardo Salas Velazquez. Copy of Report sent to parties by certified mail/return receipt or via electronic transmittal. Signed by Judge Nancy Stein Nowak. (ep, )

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT of TEXAS S A N ANTONIO DIVISION L U I S GERARDO SALAS VELAZQUEZ, P e t itio n e r v. M A R C MOORE, Field Office Director f o r Detention and Removal, U.S. I m m i g r a t io n and Customs Enforcement, D e p a rtm e n t of Homeland Security and G A R Y GOMEZ, Warden, South Texas D e te n tio n Complex, R esp o n d en ts § § § § § § § § § § § § §

Civil Action No. SA-08-CA-635-XR (NSN)

U .S . MAGISTRATE JUDGE'S R E P O R T AND RECOMMENDATION T o : The Honorable Xavier Rodriguez, U.S. District Judge B e fo r e the Court is Petitioner Luis Gerardo Salas Velazquez's 28 U.S.C. § 2241 Habeas C o r p u s Petition challenging his mandatory detention without a bond determination during removal p ro c e e d in gs . This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1). It a d d r e s s e s only the jurisdictional arguments presented to the Court through respondents' motion to d i s m is s . S t a t e m e n t of the Case P e t itio n e r is a national and citizen of Mexico who was admitted to the United States as a la w fu l permanent resident in 1990. On July 5, 2008, Petitioner was a passenger on a bus at the J u a r e z Lincoln Bridge in Laredo and sought to enter the United States from Mexico. A Notice to A p p e a r was issued alleging Petitioner was an arriving alien who was convicted of "aggravated assault -- non family -- weapon/felony" in Nebraska in 1995, and was thus subject to removal under Im m igra tio n and Nationality Act (INA) § 212(a)(2)(A)(i)(I) (alien convicted of crime of moral tu r p i tu d e ). Petitioner requested a bond hearing. The Immigration Judge denied Petitioner's request

fo r bond because Petitioner was being charged as an arriving alien and, therefore, the Immigration J u d ge lacked jurisdiction to issue a bond. P e t i ti o n e r complains he should not be classified as an arriving alien subject to mandatory d e t e n t i o n . Petitioner asserts his constitutional rights are being violated, and he seeks an order c o m p e l lin g an individualized custody re-determination hearing before an immigration judge. P e titio n e r is charged as an arriving alien under INA § 101(a)(13)(C)(v) (8 U.S.C. § 1101(a)(13)(C)(v)) for having a conviction for an offense identified under INA § 212(a)(2) ( 8 U.S.C. § 1182(a)(2)). As an arriving alien, Petitioner is being mandatorily detained under 8 U .S . C . § 1225(b)(2) pending removal proceedings. P rio r to the April 1, 1997, effective date of Illegal Immigration Reform and Immigrant R e s p o n sib ility Act of 1996 ("IIRIRA"), 110 Stat. 3009 (1996), former 8 U.S.C. § 1101(a)(13) p ro v id e d : T h e term "entry" means any coming of an alien into the United States, from a foreign p o rt or place or from an outlying possession, whether voluntarily or otherwise, except th a t an alien having a lawful permanent residence in the United States shall not be r e g a rd e d as making an entry into the United States for the purposes of the im m igra tio n laws if the alien proves to the satisfaction of the Attorney General that h i s departure to a foreign port or place or to an outlying possession was not intended o r reasonably to be expected by him . . .. U n d e r that statute, the Supreme Court held that, with some exceptions, a lawful permanent resident d o e s not make an "entry" when returning from "an innocent, casual, and brief excursion" from o u ts id e the United States. Rosenberg v. Fleuti, 374 U.S. 449 (1963). N o w , however, § 1101(a)(13)(C)(v) provides, "An alien lawfully admitted for permanent re s id e n c e in the United States shall not be regarded as seeking an admission into the United States fo r purposes of the immigration laws unless the alien -- has committed an offense identified in s e c tio n 1182(a)(2) of this title, unless since such offense the alien has been granted relief under s e c tio n 1182(h) or 1229b(a) of this title." Section 1182(a)(2)(A)(i)(I) provides, "[A]ny alien

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c o n v ic te d of, or who admits having committed, or who admits committing acts which constitute the e s s e n tia l elements of -- a crime involving moral turpitude . . . is inadmissible." Section

1 2 2 5 (b )(2 )(A ) provides, "[I]n the case of an alien who is an applicant for admission, if the examining im m i gra tio n officer determines that an alien seeking admission is not clearly and beyond a doubt e n title d to be admitted, the alien shall be detained for a proceeding under section 1229a of this title." T h e IIRIRA has superseded Fleuti, so there is no longer an inquiry into the intent of a lawful p e rm a n e n t resident's trip abroad. Malagon De Fuentes v. Gonzales, 462 F.3d 498, 501-02 (5th Cir. 2 0 0 6 ). Petitioner argues that the application of the current version of 8 U.S.C. § 1101(a)(13) to a la w fu l permanent resident alien such as him, with a conviction prior to the effective date of that p ro v is io n , is impermissibly retroactive, relying on Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004). In s te a d , Petitioner contends his case should be controlled by Fleuti. Since he is not an arriving alien, P e titio n e r's argument goes, he is not subject to mandatory detention. P e t i ti o n e r seeks habeas relief under 28 U.S.C. §2241. That statute provides that the Court m a y grant habeas relief for persons in custody in violation of the constitution or laws of United S ta te s . Petitioner claims that his right to substantive and procedural due process guaranteed by the F ifth Amendment of the United States Constitution has been violated by respondent's classification o f petitioner as an arriving alien and his detention without an individualized determination of his q u a lific a tio n for bond pending the completion of the removal proceedings. M o t io n to Dismiss In their motion to dismiss respondents argue that this Court lacks jurisdiction under 8 U.S.C. § § 1252(b)(9) and 1252(g). However, those provisions only apply when there is a final order of re m o v a l. Kambo v. Poppell, 2007 WL 3051601 (W.D. Tex. October 18, 2007) (citing Nnadika v. A tto r n e y General, 484 F.3d 626 (3d Cir. 2007); Madu v. U.S. Attorney General, 470 F.3d 1362 (11th C i r. 2006); Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006); Hernandez v. Gonzales, 424 F.3d

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4 2 (1st Cir. 2005)). This case does not concern review of a final order of removal, so § 1252(b)(9) a n d § 1252(g) do not deprive this Court of habeas jurisdiction. R e s p o n d e n ts further contend Petitioner's claim is unexhausted because an immigration judge h a s jurisdiction to determine whether Petitioner is properly classified as an arriving alien. In many c a s e s in which a person is mandatorily detained, the detainee may request a Joseph hearing. Matter o f Joseph, 22 I. & N. Dec. 799 (BIA 1999). At such a hearing, the detainee may "raise any n o n fr iv o l o u s argument available to demonstrate that he was not properly included in a mandatory d e t e n t io n category." Demore v. Kim, 538 U.S. 510, 514 (2003). However, a detainee who is d e s i g n a t e d an arriving alien cannot have an immigration judge determine whether the detainee is p ro p e rly included in that category. "[A]n immigration judge may not redetermine conditions of c u sto d y imposed by the Service with respect to [a]rriving aliens in removal proceedings...." 8 C.F.R. § 1003.19(h)(2)(i)(b). Although an immigration judge can determine whether a person is properly in c lu d e d within several categories, that of an arriving alien is not among them. 8 C.F.R. § 1 0 0 3 .1 9 (h )(2 )(ii). See Garza-Garcia v. Moore, 539 F. Supp. 2d 899, 902, 906-07 (S.D. Tex. 2007); In re Saint Fleury, 2008 WL 2783096 (BIA June 12, 2008). Because Petitioner cannot raise his c la im before the immigration judge, it follows that he cannot exhaust his claim in that fashion. C o n s e q u e n t ly, it is recommended that this Court decline to dismiss Petitioner's claim as u n ex h au ste d . R E C O M M E N D A T IO N : F o r the reasons stated above, I recommend that this Court has jurisdiction to consider V e la z q u e z 's § 2241 Petition and that respondents' motion be denied insofar as it seeks dismissal on th i s basis.1

On this date I have scheduled this case for evidentiary hearing on December 1, 2008 to a llo w petitioner an opportunity to establish "actual, subjective reliance" in order to determine

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I n s t r u c tio n s for Service and Objections: T h e United States District Clerk shall serve a copy of this Report and Recommendation on a ll parties who have entered an appearance, by either (1) electronic transmittal to all parties re p re s e n te d by attorneys registered as a "Filing User" with the Clerk of Court, or (2) by mailing a c o p y to those not registered by certified mail, return receipt requested. P u rs u a n t to 28 U.S.C. § 636(b)(1) any party who desires to object to this Report and R e c o m m e n d a tio n must file with the Clerk of this Court and serve the Magistrate Judge and all parties w ith written objections to the findings and recommendation included above within ten (10) days after b e in g served with a copy of this Report and Recommendation. See United States v. Wilson, 864 F. 2 d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989). A party filing objections must s p e c ific a lly identify those findings, conclusions or recommendations to which objections are being m a d e and the basis for such objections; the District Court need not consider frivolous, conclusive o r general objections. Failure to file written objections to the proposed findings, conclusions, and r e c o m m e n d a t io n s contained in this report within ten (10) days after being served with a copy, shall b a r the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate J u d g e that are accepted by the District Judge, except for plain error. See Douglass v. United Servs. A u t o . Ass'n, 79 F. 3d 1415, 1428-29 (5th Cir. 1996) (en banc). S I G N E D on November 10, 2008.

_____________________________________ N A N C Y STEIN NOWAK U N I T E D STATES MAGISTRATE JUDGE

whether IIRIRA may be retroactively applied so as to preclude consideration of bond pending re m o v a l proceedings.

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