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Almousa v. Gonzalez

August 11, 2008

KHALID ALMOUSA, PETITIONER,
v.
ALBERTO GONZALEZ, ET.AL., RESPONDENTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is detained by the Bureau of Immigration and Customs Enforcement ("BICE") and is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

PROCEDURAL BACKGROUND

In the petition filed on January 24, 2007, Petitioner claims Respondent lacks the statutory authority to detain him indefinitely. He also contends that his indefinite detention violates his substantive and procedural due process rights guaranteed under the United States Constitution. He further contends that Respondent's current detention of Petitioner is punitive in nature and constitutes punishment without due process of law.

Petitioner challenged the order of removal by filing a petition for review in the United States Court of Appeals for the Ninth Circuit, and obtained a stay of removal in conjunction with that petition. See Ninth Circuit Docket No. 06-70638.*fn1

Respondent filed a response to the instant petition on June 13, 2007, and Petitioner filed a traverse on July 9, 2007. (Court Docs. 10 &11.)

FACTUAL BACKGROUND

Petitioner is a native and citizen of Saudi Arabia who was ordered removed on October 4, 2005. Petitioner sought administrative review before the Board of Immigration Appeals ("Board"), which was denied on January 18, 2006. Petitioner then filed the petition for review in the Ninth Circuit, docket number 06-70638, challenging the Board's decision.

ICE attempted to remove Petitioner on March 2, 2006; however, because of Petitioner's behavior at the airport, the airline representative refused to issue him a ticket. Petitioner thereafter filed a request for stay of removal in conjunction with his appeal pending at the Ninth Circuit, which was granted.

Pursuant to Title 8 of the United States Code section 1231(a)(1)(C), ICE conducted a post-order detention custody review on May 24, 2007, and found that Petitioner was to remain in ICE detention because the delay is due to the stay issued by the Ninth Circuit, and a travel document is likely to issue upon conclusion of judicial review. (Attachment A, to Response.) In addition, it was determined that based on Petitioner's history of combative behavior against law enforcement officers he was an unacceptable risk of flight and danger to the community. (Id.)

DISCUSSION

A. Jurisdiction

Habeas corpus relief is appropriate when a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Habeas corpus proceedings pursuant to § 2241 remain available as a forum for statutory and constitutional challenges to the authority of the Attorney General to order post-removal-period detention; in such a proceeding, the petitioner is not seeking review of the Attorney General's exercise of discretion, but rather is challenging the extent of the authority to detain under the statute, which is not a matter of discretion. Zadvydas v. Davis, 533 U.S. 678, 688 (2001); Magana Pizano v. Immigration and Naturalization Service, 200 F.3d 603, 608-09 (9th Cir. 1999). Accordingly, the Court has subject matter jurisdiction over this action.

With respect to jurisdiction over the person, 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990). It is sufficient if the custodian is within the territorial jurisdiction of the court at the time the petition is filed; transfer of the petitioner thereafter does not defeat personal jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. ...


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