The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL [Doc. No. 19]
On January 26, 2010, the Court issued an order denying Petitioner's ex parte application for a preliminary injunction. [Doc. No. 18]. Currently before the Court is Petitioner's Emergency Motion to stay the execution of that order pending appeal. [Doc. No. 19]. Having considered the parties' arguments, the Court DENIES Petitioner's Emergency Motion.
Petitioner Eduardo Sandoval-Vela was born in Mexicali, Baja California, Mexico on April 17, 1973. He claims derivative United States citizenship through his father, Eduardo Sandoval-Salgado. Mr. Sandoval-Salgado was born in Mexico on September 20, 1952, and received his U.S. certificate of citizenship on January 2, 1981. Mr. Sandoval-Salgado derived his United States citizenship through his father, Mr. Benito Sandoval, who was born in Venice, California on August 28, 1926.
It appears Mr. Sandoval-Salgado came to the United States sometime in 1961 or 1962 to live with his aunt, Gloria Sandoval de Feria, and to receive medical treatment for meningitis. Medical records from the Orthopedic Hospital in Los Angeles establish that Mr. Sandoval-Salgado was admitted as a patient to that hospital on December 5, 1962. According to the declaration of his aunt, Mr. Sandoval-Salgado resided with her "until at least 1964 and most likely until 1966 or 1967." (Gloria Sandoval de Feria Decl. ¶ 10 [Doc. No. 1, Ex. F].) According to Mr. Sandoval-Salgado, he resided with his aunt until 1967 or 1968. (Eduardo Sandoval-Salgada Decl. ¶ 11 [Doc. No. 1, Ex. G].) Afterwards, Mr. Sandoval-Salgado allegedly moved to Calexico, California to work for Ms. Josephine Quan. According to Mr. Sandoval-Salgado, during this time he lived with Ms. Quan in Calexico. (Id. ¶ 18.) Mr. Sandoval-Salgado married Petitioner's mother in 1972 and by 1973 already moved back to Mexico, where Petitioner was born. (Id. ¶ 25.)
II. Petitioner's Prior Immigration and Criminal History
Petitioner immigrated to the United States on November 4, 1981. On April 29, 1996, he was convicted of possession of marijuana with intent to distribute and sentenced to twenty-one months in prison and three years of probation. On August 15, 1996, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Petitioner. Petitioner notified the Immigration Court that he wished to assert his United States citizenship as a defense to the deportation. In light of that, the Immigration Judge ("IJ") terminated the deportation proceedings. On May 17, 1997, Petitioner applied for a certificate of citizenship. However, on July 1, 1997, he withdrew the application allegedly due to his inability to provide additional evidence requested by the INS. Accordingly, on July 15, 1997, the INS reinstated removal proceedings, and on July 25, 1997, the IJ ordered Petitioner removed. Petitioner waived appeal and was removed to Mexico on the same day.
Petitioner subsequently reentered the United States in 1998 and/or 2000, and in mid-2001 he re-applied for a certificate of citizenship. Petitioner, however, withdrew that application as well. Between 2003 and 2004, Petitioner was convicted of several crimes. On January 4, 2005, the Department of Homeland Security ("DHS") again commenced removal proceedings against Petitioner.
On January 13, 2005, the IJ ordered Petitioner removed from the United States to Mexico. Petitioner again waived appeal, and was removed on the same day. Petitioner re-entered the United States on July 4, 2005, and was granted voluntary return to Mexico sometime after September 26, 2005.
On August 12, 2008, Petitioner was convicted of providing a false statement on a DMV form and was sentenced to nine days in jail and three years of summary probation. Meanwhile, on August 7, 2008, the DHS lodged a detainer with the Imperial County jail, where Petitioner was being held at the time, to ensure his release to the DHS custody. On October 22, 2008, the DHS served Petitioner with a Notice of Intent to reinstate the January 13, 2005 removal order. On December 15, 2008, Petitioner was allegedly transferred to DHS custody and the matter was referred to the U.S. Attorney's Office for prosecution under 8 U.S.C. § 1326. On May 22, 2009, the United States and Petitioner agreed to a deferred prosecution whereby Petitioner would apply for a certificate of citizenship.
On June 16, 2009, Petitioner re-applied for a certificate of citizenship, providing new sworn declarations from his father, his father's aunt, and his father's cousin. On November 9, 2009, the U.S. Citizenship and Immigration Services ("USCIS") denied the application, and Petitioner appealed to the Administrative Appeals Office ("AAO"). That appeal is currently pending. On January 7, 2010, the government moved to dismiss without prejudice charges in the pending criminal case. On January 8, 2010, Judge Moskowitz granted the motion to dismiss criminal charges, and Petitioner was released from custody on January 11, 2010. Petitioner has remained out of custody since then.
Petitioner commenced the present action on January 8, 2010, by filing a Petition for Writ of Habeas Corpus pursuant to 22 U.S.C. § 2241, seeking relief from DHS detention on the basis that he is a United States citizen who derived citizenship from his father. [Doc. No. 1]. Petitioner bases his derivative citizenship claim on Section 301(a)(7) of the Immigration and Naturalization Act ("INA"), which at the time of Petitioner's birth provided that a person shall be a national or citizen of the United States if he or she was born to a United States parent "who, prior to the birth of such person, was physically present in the United States . . . for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years." 8 U.S.C. § 1401(a)(7) (1973). According to Petitioner, his father met that criteria because he resided in the United States from 1961 to 1973 prior to Petitioner's birth in 1973. As a result, because he is a United States citizen, Petitioner argues his detention violates (1) the Non-Detention Act, 18 U.S.C. § 4001; (2) the INA; and (3) the Due Process Clause of the Fifth Amendment.
Petitioner seeks a Court order that would, among other things: (a) enjoin Respondents from enforcing the immigration detainer; (b) declare that Respondents' arrest and detention of Petitioner violates the Non-Detention Act, the INA, and the Due Process Clause; (c) enjoin Respondents from arresting and/or detaining Petitioner in the future without first disproving his claim to citizenship by clear and convincing evidence at a hearing before a neutral arbiter; and (d) enjoin Respondents from reinstating Petitioner's prior removal order(s). (Habeas Petition ¶ 31.)
Together with his petition, Petitioner submitted an Ex Parte Application for a Temporary Restraining Order ("TRO") and a Preliminary Injunction, asking the Court to enjoin Respondents from executing the immigration detainer and to prohibit them from entering a reinstatement of a previous deportation order. [Doc. No. 2]. The Court granted his request for a TRO on the same day and ordered Respondents to show cause why a preliminary injunction should not be entered. [Doc. No. 4]. In their opposition to injunctive relief, Respondents argued the Court should dismiss the case as moot due to Petitioner's release from custody. The Court held a hearing on January 22, 2010, at which time it ordered the TRO to be extended through January 26, 2010. [Doc. No. 13].
At the hearing, Respondents stated their intent to file supplemental exhibits. After the hearing, counsel for Respondents provided a copy of the supplemental exhibits to the Court and to Petitioner. The exhibits related to the new removal proceedings to be commenced against Petitioner, and were intended to be served on Petitioner after the hearing.*fn1 The Court directed Respondents to electronically file the documents, so that they can become a part of the record. Respondents did so on January 25, 2010. [See Doc. No. 16]. Petitioner subsequently filed an ex parte motion seeking an opportunity to respond to the supplemental exhibits submitted by Respondents. [Doc. No. 14]. The Court denied Petitioner's request, concluding Petitioner had a meaningful opportunity to respond to the ...