The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS Petitioner, CORPUS PURSUANT TO 28 U.S.C. § 2241
Now pending before this Court is Petitioner Isaac Kigondu Kiniti's ("Petitioner"), a prisoner held by the Department of Homeland Security, Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2241. [Doc. No. 1.] Petitioner's Petition challenges his removal proceedings and detention pending removal proceedings. The Petition has been fully briefed by the parties. After a careful consideration of the pleadings and the relevant exhibits submitted, and for the reasons set forth below, this Court DENIES the Petition in its entirety.
Petitioner is a Kenyan citizen who came to the United States as a student in 1998. (See Pet. at 5.) On May 10, 2004, Petitioner was taken into custody by the Department of Homeland Security ("DHS") based on his conviction for possession of a controlled substance for sale, and removal proceedings were initiated. (See id. at 7.) On July 13, 2004, Petitioner appeared before an immigration judge ("IJ") and petitioned for a withholding of removal. (See id. at 8.) The IJ denied Petitioner's request, holding that his controlled substance conviction was a "particularly serious crime" that rendered Petitioner ineligible for withholding of removal. (See id. Ex. A at 2.)
Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Petitioner argued that the IJ acted improperly by conducting independent research regarding Petitioner's family and by threatening Petitioner. See id. Petitioner also asserted that the IJ erred in finding that Petitioner's controlled substance conviction was a "particularly serious crime." (See id. Ex. A at 3.) The BIA held that even if Petitioner's crime was not considered a "particularly serious crime," Petitioner failed to meet his burden of proof of establishing eligibility for withholding of removal.*fn1 (See id. at 4.) Ultimately, the BIA affirmed the IJ's decision to remove Petitioner. (See id.)
On January 25, 2005, Petitioner petitioned for review by the Ninth Circuit and obtained a stay of removal. (See Pet'r Pet., Kiniti v. Gonzales, No. 05cv70411 (9th Cir. Jan. 25, 2005).) On January 24, 2006, Respondent filed a motion with the Ninth Circuit requesting that the case be remanded back to the BIA and held in abeyance. (See Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Jan. 24, 2006).) The Ninth Circuit denied Respondent's motion on May 23, 2006. (See Order Deny. Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. May 23, 2006).
Petitioner remained in custody during these proceedings. DHS conducted custody reviews on April 10, 2005, August 21, 2006, and July 12, 2007. (See id. at 13, Ex. L at 1-3.)
At these hearings, DHS determined that Petitioner should remain detained pending his petition for review because he was both a flight risk and a danger to the community. (See id.)
On July 17, 2006, Respondent requested and obtained from the Ninth Circuit an extension for filing his opposition to Petitioner's Petition for Review. (See Resp't Mot. for Ext. of Time to File, Kiniti v. Gonzales, No. 05-70411 (9th Cir. July 17, 2006).) Respondent again filed a Motion to Remand the case to the BIA on August 21, 2006. (See Resp't Mot. for Remand to BIA, Kiniti v. Gonzales, No. 05-704211 (9th Cir. Aug. 21, 2006).) Petitioner filed an Opposition to Respondent's Motion on September 1, 2006, alleging that any further delay was prejudicial to him, and that remanding the case to the BIA would be improper since the government did not demonstrate that it intended to produce any new evidence. (See id. Ex. G at 4-7.) The Ninth Circuit denied Respondent's Motion on December 1, 2006, and ordered that Respondent file his opposition by February 2, 2007. (See Order Deny. Resp't Mot. to Remand to the BIA, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Dec. 1, 2006).)
On February 21, 2007, Petitioner filed a "Motion to Expedite"*fn2 in the Ninth Circuit. (See Pet. Ex. H). The Ninth Circuit denied the Motion, and ordered Respondent's Opposition Brief due by March 28, 2007. (See Order Den. Pet. Mot. Expedite, Kiniti v. Gonzales, No. 05-70411 (9th Cir. Mar. 26, 2007).) On March 28, 2007, Respondent filed an Opposition brief. On June 1, 2007, Petitioner filed a reply brief. As of this date, Petitioner's case is still pending review by the Ninth Circuit.
I. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
A federal court has jurisdiction to review a habeas petition brought by a person "held in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2241(c)(3). While this statute allows a person in custody to file a habeas petition if he alleges that such custody violates the Constitution or federal law, habeas petitions challenging "purely discretionary (yet arguable unwise) decisions made by the executive branch that do not involve violations of the Constitution or federal law" are impermissible. Gutierrez-Chavez v. INS, 298 F. 3d 824, 827 (9th Cir. 2002).
In the context of immigration, the scope of habeas jurisdiction is "limited to claims that allege constitutional or statutory error in the removal process." Sing v. Ashcroft, 351 F. 3d 435, 439 (9th Cir. 2003) (citing Gutierrez-Chavez, 298 F. 3d at 829-30). Discretionary decisions made by the Attorney General ...