The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING 28 U.S.C. § 2241 PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Leonardo Verdugo-Gonzalez ("Verdugo-Gonzalez" or "Petitioner"), a native and citizen of Mexico, is a permanent resident lawfully admitted to the United States in December 1985. Pet. p. 4. He has filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus ("Petition") alleging he has been unlawfully detained in the custody of the Secretary of Homeland Security ("DHS") since February 2006, following his service of a sentence for a felony conviction. Administrative proceedings resulted in an Order for his removal from the United States. His Petition For Review of the final removal Order is currently pending before the Ninth Circuit. Verdugo-Gonzalez asks this court for interim release on grounds: he disputes his underlying conviction was for an aggravated felony; he contends a lawful permanent resident should not be subject to Immigration and Nationality Act ("INA") § 236(c) mandatory detention; and his purportedly mandatory detention violates his Fifth Amendment due process rights. Id. The government filed a Return, and Verdugo-Gonzalez filed a Traverse. For the reasons discussed below, the Petition is DENIED.
The Bureau of Immigration and Customs Enforcement ("ICE") took Verdugo-Gonzalez into custody for removal proceedings after he served time for a one-year and four month sentence for a July 2003 conviction following his guilty plea to a violation of CAL. PENAL CODE § 496(a), receiving stolen property. Pet. pp. 1-2; Traverse p. 3. The DHS charged him with removability under INA § 237(a)(2)(A)(iii) and § 101(a)(43)(G) for having been convicted of an aggravated felony, "based only on [the] 'receiving stolen properties conviction,'" although he acknowledges "other convictions were [also] part of the record."*fn1 Traverse p. 3. He applied for a cancellation of removal. In April 2006, an Immigration Judge ("IJ") ordered him removed based on his criminal conviction. He appealed that result to the Board of immigration Appeals ("BIA"). The BIA adopted the IJ's reasoning and affirmed the IJ's decision, finding Verdugo-Gonzalez did not carry his burden under 8 C.F.R. § 1240.8(d),*fn2 and his conviction was for an aggravated felony rendering him statutorily ineligible for cancellation of removal. Return Exh. E, pp. 1-2. He challenges that result as erroneous, arguing receiving stolen property is not a serious or violent felony, and he further argues he has been wrongfully denied bail.
In a 10-page written Decision and Order, the IJ reviewed the facts of VerdugoGonzalez's theft offense and plea admissions. Relying on the documentary record and pursuant to INA § 101(a)(43)(g) (providing a theft offense, including receipt of stolen property for which the sentence is one year or more, qualifies as an aggravated felony), the IJ found Verdugo-Gonzalez is disqualified for statutory relief from removal. Return Exh. D, pp. 4-9. Verdugo-Gonzalez filed in the Ninth Circuit a Petition For Review of the agency decision. He requested and was "granted a stay of deportation" associated with those proceedings. Pet. pp. 4-5, 7; Traverse p. 3. He now seeks habeas corpus relief from this court in the form of release from custody while he awaits the Ninth Circuit's ruling. Pet. p. 7.
Respondents challenge the availability of habeas relief in Petitioner's circumstances. Dkt No. 8. They argue Verdugo-Gonzalez's detention pending judicial review of his case is voluntary, foreclosing habeas review because he is no longer subject to mandatory detention under 8 U.S.C. § 1226(c) and is not yet subject to mandatory detention under 8 U.S.C. § 1231(a)(2). Rather, he is subject to DHS discretionary detention under 8 U.S.C. § 1226(a), and bond decisions are beyond the scope of habeas proceedings.*fn3
Before the court can reach Petitioner's arguments on the merits, it must address its own jurisdiction to consider a 28 U.S.C. § 2241 petition for the relief requested. The "REAL ID Act," Pub. Law 109-13 enacted May 11, 2005, amended portions of the INA, 8 U.S.C. § 1252 and clarified the scope of judicial review of removal orders. Verdugo-Gonzalez acknowledges those amendments establish the exclusive means to challenge a final Order of removal, deportation, or exclusion is through a petition for review filed with the appropriate court of appeal, including such Orders against an alien "who is removable by reason of having committed" an aggravated felony. Traverse pp. 9-10; see 8 U.S.C. § 1252(a)(2)(C). His "arguments against removal" (Traverse p. 11) accordingly must be decided there. However, in appropriate circumstances, the district courts retain habeas jurisdiction over the lawfulness of concurrent detention challenges because the propriety of detention is a consideration independent of removability.
Although it is for the Ninth Circuit rather than this court to review the removal Order or to recharacterize the nature of his criminal conviction, applying statutory definitions, Verdugo-Gonzalez's conviction appears on its face to have been for an aggravated felony as defined for immigration purposes, contrary to his assertion.*fn4 See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1051-52 (9th Cir. 2005) (IIRIRA "expanded the definition of aggravated felonies to include receipt of stolen property if the term of imprisonment was at least one year and made this change retroactive").*fn5 This court merely observes the inference Verdugo-Gonzalez apparently would have it draw from his argument challenging the characterization of his conviction (i.e., a purported likelihood he may prevail in the Ninth Circuit) as affecting the merits of his request for interim habeas relief is neither appropriately drawn nor persuasive.
Addressing only those portions of the Petition within the jurisdictional scope of 28 U.S.C. § 2241 review, the court finds Verdugo-Gonzalez's arguments in support of interim habeas relief are without merit. Section 236 of the INA (8 U.S.C. § 1226) provides that once the agency's removal proceedings are "complete," procedures regarding detention and release of aliens are controlled by INA § 241 (8 U.S.C. § 1231). Section 241 directs the agency to endeavor to remove an alien within 90 days after the start of the removal period. 8 U.S.C. § 1231(a)(1)(A). Verdugo-Gonzalez's detention gives rise to no concern associated with the codified "removal period" duration because it has not yet been triggered.
The removal period begins on the latest of the following: (i) The date the order of removal becomes final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B); see Ma v. Ashcroft, 257 F.3d 1095, 1104 n.12 (9th Cir. 2001) ("If [as here] the removal order is stayed pending judicial review, the ninety-day [removal] period begins running after the reviewing court's final order").
Moreover, although an alien may not pursue a defense from outside the United States during administrative proceedings, an appeal of a removal Order through a petition for judicial review by the circuit courts may be pursued from outside the United States. See 8 U.S.C. §§ 1229(b)(5), 1252(b(3)(b); see also Elian v. Ashcroft, 370 F.3d 897, 900 (9th Cir. 2004) ("We may . . . entertain a petition after the alien has departed"). Verdugo-Gonzalez successfully sought a stay of removal while he pursues his judicial remedies on the merits of his challenges to the removal Order. His current detention is accordingly of his own choosing and is subject to the provisions of Section 236 of the INA (8 U.S.C. § 1226(c)) according agency discretion on the issue of interim releases. His contention that provision has been found to be unconstitutional as applied to lawful permanent resident aliens relies on distinguishable cases. Pet. p. 11. He purports to demonstrate, relying inter alia on the standards discussed in Zadvydas v. Davis, 533 U.S. 678 (2001) and Demore v. Kim, 538 U.S. 510 (2003), that as a lawful permanent resident, his "indefinite mandatory detention" violates due process.*fn6 Traverse 4:1-27. However, those characterizations -- i.e., his detention is "mandatory" and "indefinite" -- are inaccurate. When the Ninth Circuit decides his Petition For Review, he will either be removed from the United States or released. Unlike in Zadvydas, he raises no issue associated with any impediment to his ultimate removal should he not prevail in the Ninth Circuit.*fn7
With respect to Verdugo-Gonzalez's argument he should be released on bond because he poses no flight risk, poses no present danger to property or persons, and the government has not provided any other "special justification" to warrant his continued civil detention (Pet. pp. 8-12. ), judicial review of such discretionary decisions is not properly addressed in habeas corpus proceedings. See Singh v. Ashcroft, 351 F.3d 435, 439 (9th Cir. 2003) ("The scope of habeas jurisdiction under 28 U.S.C. § 2241 is limited to claims that allege constitutional or statutory error in the removal process"). Challenges to factual determinations by an agency or discretionary decisions such as whether to grant bond, irrespective of the wisdom of such decisions, are beyond the limited jurisdiction of the court's 28 U.S.C. § 2241 habeas review. See Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 829-30 (9th Cir. 2002) (habeas petitions that do not "allege constitutional or statutory error in the removal process" but "simply seek to change the discretionary result reached by the INS are not within the scope of § 2241 and should be denied"). Unlike the petitioners in Zadvydas and Demore, Verdugo-Gonzalez is not being held for an indefinite or potentially permanent period. Respondents observe the duration of the judicial ...