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Penafiel-Falcon v. D.H.S.

September 6, 2007

CARLOS PENAFIEL-FALCON, PETITIONER,
v.
D.H.S., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING PETITION FOR HABEAS CORPUS RELIEF

This matter is before the court on the 28 U.S.C. § 2241 habeas corpus petition of Carlos Penafiel-Falcon ("Petitioner"), proceeding pro se. He seeks an Order for supervised release from Department of Homeland Security ("DHS") immigration detention or minimal bail pending resolution of his Ninth Circuit appeal of the DHS Immigration and Customs Enforcement's ("ICE") determination he is removable as an aggravated felon. For the reasons discussed below, the Petition is DENIED.

I. BACKGROUND

Petitioner is a native and citizen of Peru who has been in the United States since 1983, with an adjusted status of immigrant since about 1992. Pet. p. 1. On July 29, 2004, he was convicted following his guilty plea of second degree burglary under CAL. PENAL CODE §§ 459-460(b). He acknowledged in his July 29, 2004 Guilty Plea form: the total penalty for his violation of the Penal Code § 459(b) (burglary) charge was 3 years; by pleading guilty to the "felony charge" he understood he would be granted a term of 3-years probation and that if he violated his probation, "the court may send me to the penitentiary for a maximum of 3 years on this case." From the transcript of the plea hearing, it is clear the court placed him "on three years of supervised probation," a decision that expressly -- and merely -- "suspended" imposition of his sentence. Traverse Exh. D-10.

THE COURT: I'll accept your plea. Find that it was knowing, voluntary and intelligent and that a factual basis exists. Hearing no legal cause, the imposition of sentence is suspended. You're placed on three years of supervised probation. You are to serve 90 days in the county jail. You'll receive credit for 22 days. Pay restitution fine of $200. . . . ¶ Should you violate probation, should you go to state prison [to serve the suspended sentence]. . . .

Traverse Exh. D-10, D-11.

Petitioner provides an Abstract of Judgment dated March 2, 2005 and filed March 5, 2005. Traverse Exh. F. The "Abstract Of Judgment - Prison Commitment - Determinate" substantiates a determinate sentence of one year four months was imposed and ordered executed "after revocation of probation," with Petitioner remanded to the sheriff's custody. Traverse Exh. F-13, F-14. Nevertheless, he argues "his plea agreement demonstrates that the sentence imposed was ninety (90) days, with three (3) years probation," challenging the Abstract of Judgment as "wrong" ( Pet. pp. 10-11), warranting habeas relief while the Ninth Circuit decides his removal appeal.

In a May 12, 2005 Notice To Appear, the DHS/ICE charged Petitioner with removability pursuant to the Immigration and Naturalization Act ("INA") § 101(a)(43)(G),*fn1 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony based on his July 29, 2004 conviction for second degree burglary. Ret. Ex. A. He was paroled into DHS custody in May 2005. He provides excerpts from the transcript of his October 4, 2005 Removal Proceedings, where he was represented by counsel. The Immigration Judge (" IJ") denied his application for cancellation of removal and ordered him removed to Peru. Ret. Exh. D. In conducting the hearing, the IJ addressed as a disputed issue the aggravated felony ground of deportability, entertaining arguments in addition to briefs on that question. Pet. Exh. B-4. Using the "modified categorical approach" described below, the IJ ruled the burglary conviction was for an aggravated felony, and sustained that ground of deportability.*fn2 Pet. Exh. B-11, B-14 ("Well, sir, at this time I'll sustain the aggravated felony charge, deny the application for cancellation of removal, order you removed from the United States to Peru as charged by the Department of Homeland Security"). Petitioner alleges the IJ violated his due process rights by ordering him removed on the strength of that classification of the burglary conviction.

On October 24, 2005, Petitioner appealed the result to the Board of Immigration Appeals ("BIA"). Ret. Exh. E. On February 7, 2006, the BIA denied his appeal. Ret. Exh. F. The BIA affirmed the IJ's decision that the second degree burglary conviction was an aggravated felony as defined in INA § 101(a)(43)G) and found the IJ properly relied on the Abstract of Judgment in determining Petitioner had admitted and pleaded guilty to all elements in the charging document for that offense, rendering him ineligible for cancellation of removal. Pet. Exh. C; Pet. Exh. F (Petitioner's Abstract of Judgment records the imprisonment "time imposed" as one year and four months).

On February 17, 2006, Petitioner filed a Petition For Review and Motion For Stay Of Removal with the Ninth Circuit Court of Appeals. Ret. Exh. G. On February 22, 2006, the ICE sought travel documents from the Peruvian consulate and notified Petitioner of the post-removal-Order custody review procedures. Ret. Exhs. H, I. On June 12, 2006, the ICE notified him of its intention to continue his detention, for failure to demonstrate that he did not pose a flight risk. Ret. Exh. J. On August 24, 2006, Petitioner filed for habeas relief in the form of an Order from this court granting supervised release or bail pending the result of his Petition For Review in the Ninth Circuit.

Petitioner relies on his central legal premise: his second degree burglary conviction should not qualify as an aggravated felony, and therefore it cannot support his detention, because his sentence was for less than one year. He represents he received 90 days confinement only, even though the Abstract of Judgment reflects a sentence of one year and four months was imposed after he violated probation.

The government's Return urges denial of the Petition on grounds: Petitioner extended his own period of detention by seeking extensions before the BIA and the Ninth Circuit; he is an aggravated felon, contrary to his arguments, and therefore subject to mandatory detention, citing 8 U.S.C. §§ 1226, 1231; he failed to exhaust his administrative remedies because he never sought a bond hearing before an IJ as required by 8 C.F.R. §§ 1003.19, 1236.1(d) before seeking this habeas relief; and the six-month period of post-removal detention considered "presumptively reasonable" does not mean that every alien not removed after six months' detention must be released. See Zadvydas, 533 U.S. at 701. "To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701; see also Clark, 543 U.S. at 378; Ret. pp. 3-7. "[C]courts have frequently held that litigation efforts that stymie removal efforts serve to toll the permissible detention periods set forth in Zadvydas."*fn3 Ret. 7:22-23, pp. 7-8, citing, inter alia, Lawrence v. Gonzales, 446 F.3d 221, 226-27 (1st Cir. 2006). Respondent represents "the only factor that prevents the government from implementing Petitioner's removal is the stay of removal granted by the Ninth Circuit."*fn4 Ret. 7:15-16.

II. DISCUSSION

A. Detention Of Aliens ...


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