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Castrillon v. Dep't of Homeland Security

August 15, 2007

LUIS FELIPE CASAS CASTRILLON, PETITIONER,
v.
DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Docket Nos. 1, 18)

Petitioner, LUIS FELIPE CASAS CASTRILLON ("Petitioner"), a citizen and native of Colombia, has filed a petition for a writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2241.*fn1 Petitioner claims that the Department of Homeland Security has custody of his person in violation of Title 8 U.S.C. § 1231(a)(6). In this present Petition, Petitioner does not challenge the validity of his removal order or the underlying state court convictions. Rather, Petitioner seeks release from Department of Homeland Security ("DHS") custody because DHS has not effectuated his timely removal pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001).

Under Zadvydas, an alien in custody for more than six months after his/her removal order becomes final can seek release, but only upon a showing that "there is no significant likelihood of removal in the reasonably foreseeable future." 533 U.S. at 701. The circumstances of the instant action, however, are not remotely comparable to those at issue in Zadvydas, where the government was unable to find a country to which the petitioners therein could be deported. In contrast, the sole reason for the government's delay in Petitioner's deportation is because Petitioner has sought, and received, numerous stays of removal from both the district court and the Ninth Circuit. Therefore, for the reasons that follow, the Petition is DENIED.

I. BACKGROUND

Petitioner is a native and national of Columbia. On April 17, 1989, Petitioner was granted temporary resident status and then subsequently granted permanent resident status on September 18, 1990. On January 26, 1993, Petitioner was convicted in California state court of Second Degree Burglary, in violation of Section 459 of the California Penal Code, and was sentenced to 180 days in jail. On May 4, 2000, Petitioner was convicted of a second violation of Section 459 of the California Penal Code, and was sentenced to three years imprisonment.

On August 8, 2001, Petitioner was served with a Notice to Appear and charged with deportability pursuant to Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii). That section provides for removal of an alien who after admission has been convicted of two crimes of moral turpitude. Petitioner was taken into DHS custody after completion of his state term of imprisonment on August 1, 2001.

On January 16, 2002, an Immigration Judge ("IJ") ordered Petitioner removed to Columbia, and denied Petitioner's requests for asylum, withholding of removal, cancellation of removal, and relief under the Convention Against Torture. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which upheld the IJ's removal order on July 19, 2002.

Petitioner then had thirty days from the BIA's decision (until August 19, 2002) to seek direct review with the court of appeals. See 8 U.S.C. § 1252(b)(1). Instead, Petitioner sought habeas relief in district court on October 11, 2002. Casas-Castrillon v. Gonzalez, Case No. 02CV2020 (S.D. Cal.). However, the district court transferred the case to the Ninth Circuit for direct review. The Ninth Circuit gave Petitioner an opportunity to explain why the petition for review should not be dismissed for untimeliness. On April 19, 2004, the Ninth Circuit ultimately dismissed the petition for lack of jurisdiction. Casas-Castrillon v. Gonzalez, Case No. 03-73037 (9th Cir.), cert. denied, 544 U.S. 910 (2005). The Ninth Circuit denied Petitioner's motion for reconsideration, and on October 25, 2004, ordered that no further filings would be accepted.

With his direct review of the BIA order finally terminated in March 2005, Petitioner could have been removed to Columbia at that time. However, to this date, Petitioner's removal has yet to happen. Petitioner has filed multiple challenges to his removal in both the district court as well as the Ninth Circuit. Petitioner has challenged both the merits of his removal order and the validity of his state court convictions upon which the removal order was based. In doing so, Petitioner has successfully managed to delay his deportation through a series of district court and Ninth Circuit stays.

This Court notes that many of Petitioner's challenges are duplicitous of one another and have resulted in the prolonging of his deportation. On April 7, 2004, Petitioner challenged his removal order by collaterally attacking his underlying "1996"*fn2 conviction. Casas-Castrillon v. Ashcroft, Case No. 04CV0711 (S.D. Cal.). On April 13, 2004, the Court dismissed the petition on the ground that a petitioner "may not collaterally attack his state court conviction in a habeas challenge proceeding against the INS." Petitioner did not appeal.

On April 26, 2004, Petitioner filed a habeas petition challenging the "1996" conviction under Title 28 U.S.C. § 2254. Castrillon v. Warden San Diego, Case No. 04CV0875 (S.D. Cal.). The Court dismissed the petition on May 10, 2004, because Petitioner did not satisfy the custody requirement of the statute in that he was in DHS custody and not state custody. Petitioner did not appeal.

On May 21, 2004, Petitioner filed another habeas petition challenging his "1996" state court conviction, once again under Title 28 U.S.C. § 2254. Casas Castrillon v. Warden, Case No. 04CV1046 (S.D. Cal.). The Court denied the petition on June 3, 2004, on the same custody grounds referenced in the Court's earlier order. Petitioner appealed that decision to the Ninth Circuit, and that appeal remains pending. No. 04-56262. Counsel for Petitioner was appointed in that case on October 19, 2005, and briefing was finalized on November 9, 2006.

On March 17, 2005, Petitioner filed a habeas petition challenging the application of the "stop time" provision of 8 U.S.C. § 1229b(d)(1) with respect to his 1993 conviction and also made a claim for ineffective assistance of counsel. Casas v. Najera, Case No. 05CV543 (S.D. Cal). The case was transferred to the Ninth Circuit pursuant to the REAL ID Act on June 8, 2005. That appeal is still pending. No. 05-73553. Pursuant to Circuit Rule No. 6.4(c), that appeal triggered a stay of removal pending a ruling by the Ninth Circuit on Petitioner's motion for a stay. The temporary stay of removal was confirmed as a full stay on June 9, 2006. Counsel for Petitioner was appointed in that case on August 3, 2006, and briefing was completed on May 16, 2007.

On April 11,2005, Petitioner filed another habeas petition challenging the validity of his 1993 state court conviction. Casas v. Waqner, Case No. 05CV0755 (S.D. Cal.). In that petition, Petitioner alleged that he was denied due process on the grounds that the state court judge apparently failed to advise him of the immigration consequences of his plea. Petitioner also made an additional claim of ineffective assistance of counsel. Petitioner sought a stay of removal, which the court granted on April 13, 2005, pending resolution of the petition. On June 7, 2005, the Court denied the petition and dismissed the case on the ground that a petition under 28 U.S.C. ยง 2241 against the INS could not be used to attack the validity of a state court conviction. Petitioner appealed that decision to the Ninth Circuit, and that appeal remains pending. No. 05-56158. Pursuant to Circuit Rule No. 6.4(c), that appeal also triggered a stay of removal pending a ruling by the Ninth Circuit on Petitioner's motion for a stay. ...


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