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Ceballos v. Gonzales

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 4, 2007

ARMANDO VERGARA CEBALLOS, PETITIONER,
v.
ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL, ET AL., RESPONDENT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner has been detained by the Bureau of Immigration and Customs Enforcement for over 2 months pending ongoing removal proceedings. Petitioner challenges his detention and removability on the ground that he is actually a United States citizen.

However, whether Petitioner is or is not a United States citizen is an issue to be determined in the first instance by the Immigration Judge. If the Immigration Judge finds that Petitioner is not a United States citizen and orders him removed, Petitioner can appeal his claim of nationality to the BIA and then the Ninth Circuit Court of Appeals. 8 U.S.C. § 1252(b)(5).

Petitioner has adequate remedies in connection with his claim of nationality and has not provided any reasons why he should be excused from exhausting these remedies. Therefore, the Court declines to hear Petitioner's nationality claim.

Petitioner also argues that the length of his detention violates due process and asks the Court to order a hearing before the Immigration Judge. However, Petitioner's two or three month detention pending removal proceedings is not unreasonable.

Therefore, the Court DENIES WITHOUT PREJUDICE Petitioner's Petition for Writ of Habeas Corpus. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

20070904

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