ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is currently in the custody of United States Immigration and Customs Enforcement ("ICE"). He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention. Currently before the court are respondents' motion to dismiss for lack of jurisdiction, Dckt. No. 46, petitioner's motions for preliminary injunctive relief, Dckt. Nos. 45, 48, and petitioner's renewed request for counsel. For the reasons explained, the court has jurisdiction over part of the instant petition and lacks jurisdiction over part, and respondents' motion to dismiss must therefore be denied in part and granted in part. Additionally, petitioner has not shown entitlement to preliminary injunctive relief, and his motions seeking such relief must therefore be denied. However, because petitioner's case presents complex issues, the court finds that justice would be served by granting his request for appointed counsel.
Lastly, upon review of the instant petition and petitioner's additional petition at Case No. Civ. S-09-2806 FCD CMK, the Court concludes that the cases are related and will be consolidated.
Neither party has submitted a complete record of the prior proceedings in this matter, which are many, although petitioner has submitted numerous exhibits to his petition, Dckt. Nos. 1, 5, 11.*fn1 The following recitation of the case's procedural history has been compiled from the exhibits which have been provided and the facts asserted by the parties in their briefs, where not disputed.
Petitioner is a native and citizen of Ghana. Resps.' Mot. to Dism. at 2. He entered the U.S. as a "B1/B2 non-immigrant visitor" in 1977. Id.; Pet'r's Mot. for Appointment of Counsel & FRAP 23 Release (Docket No. 1, hereinafter "Pet'r's Mot. for Counsel"), Ex. 10 (petitioner's Ninth Circuit petition for review) at 4. He became a lawful permanent resident in 1986. Id. In 1988, the then-Immigration and Naturalization Service ("INS") placed petitioner in deportation proceedings. Pet'r's Mot. for Counsel, Ex. 1 (OSC from INS). The INS charged petitioner with deportability under 8 U.S.C. §§ 1184(a)(iv) based on his conviction on May 27, 1987 of obtaining credit by false pretenses in violation of California Penal Code section 532 (for which petitioner was sentenced to two years in prison). Id. In 1993, petitioner's INS case was apparently administratively closed.Pet'r's Mot. for Counsel, Ex. 10 at 5.On July 10, 1998, removal proceedings were again initiated against petitioner, adding additional charges under 8 U.S.C. §§ 1231(a)(2)(A)(iii) (conviction of aggravated felony) and 1231(a)(2)(A)(ii) (conviction of two crimes involving moral turpitude). Id. The added charges were based on another conviction sustained by petitioner on February 9, 1998 for violation of Arizona Revised Statutes § 13-2310 (fraudulent schemes and artifices). Pet'r's Supp. Exs., Ex. 13, Attach. A. Charges may also have been filed based on an August 18, 1986 conviction for violation of Cal. Penal Code § 532 (obtaining credit by false pretenses); the IJ's decision does not mention this conviction, however. Id.; Pet'r's Mot. for Counsel, Ex. 10 at 5; Resps.' Mot. to Dism. at 2. Additionally, in 2009, petitioner was convicted of violating Cal. Penal Code § 69 in 2007 by obstructing and resisting an executive officer, incurring a sixteen-month prison sentence, but it is unclear whether immigration authorities have added charges to petitioner's removal proceedings based on that conviction. Pet'r's Supp. Exs., Dckt. No. 5, Ex. 13, Attach. D (abstract of judgment).Petitioner disputes that he has ever been convicted of an aggravated felony or crime of moral turpitude, or, for that matter, "any offense in any court of law." Pet., Dckt. No. 32, at 20 (page marked "(2J)").
On November 5, 2002, an immigration judge ("IJ") denied petitioner's application for termination of the deportation proceedings based on his claim of U.S. citizenship and ordered him deported under all three charges (8 U.S.C. §§ 1184(a)(iv), 1231(a)(2)(A)(ii) & (iii)*fn2 ). Pet'r's Mot. for Counsel, Ex. 13, Attach. A. The Board of Immigration Appeals ("the Board" or "BIA") affirmed the IJ's decision on June 28, 2003. Resps.' Mot. to Dism. at 3. Petitioner sought review in the Ninth Circuit Court of Appeals, which remanded the matter to the Board after the government submitted an unopposed motion seeking remand so that the Board could reconsider whether petitioner was eligible for a waiver of inadmissibility under section 1182(c). Pet'r's Supp. Exs., Ex. 11 (government's motion); Pet'r's Mot. for Counsel, Ex. 2 (Ninth Circuit's order).On remand from the Ninth Circuit, the BIA vacated its June 28, 2003 decision and remanded the matter back to the IJ. Pet'r's Mot. for Counsel, Ex. 3.
In 2005, petitioner was released after posting bond. Pet'r's Mot. for Counsel, Exs. 4-5. At that time, he had a federal habeas petition pending challenging his detention, and the case was dismissed as moot following his release. Id., Ex. 5. At some point, petitioner was again arrested by immigration authorities -- petitioner alleges that he has been detained by ICE continuously since December 17, 2006. Pet. at 10-11 (pages marked "page 3 of 5" and "(2A)"). Respondents, on the other hand, state that petitioner was not in ICE custody for some unspecified period during some of 2008 and 2009 while serving a state prison term (presumably for the Cal. Penal Code § 69 conviction). Resps.' Mot. to Dism. at 3 (stating that the IJ closed petitioner's case on August 11, 2008 because he was not in ICE custody, that petitioner was at some point returned to ICE custody upon completion of his state prison term, and that the IJ ordered him deported on June 4, 2009). The Court is therefore unable to determine currently the actual length of petitioner's detention by ICE; it appears to be somewhere between one-and-a-half and three years. During that time, petitioner sought release on bond from ICE, but was denied by both ICE Assistant Field Director Erik Bonner on February 2, 2008 and IJ Anthony S. Murry on April 23, 2009. Pet'r's Mot. for Counsel, Exs. 5-6.
On remand from the BIA, the IJ found that petitioner was not eligible for a waiver of inadmissibility under section 1182(c) and ordered him deported on June 3, 2009. Resps.' Mot. to Dism., Attach. A. Petitioner appealed to the BIA, which rejected the IJ's reasoning and remanded the case back to the IJ on December 2, 2009 to again consider petitioner's eligibility for waiver of inadmissibility. Pet'r's "Traverse and Objection Response Brief to Respondent's Response to Order to Show Cause, Motion to Dismiss for Lack of Jurisdiction" (hereinafter "Pet'r's Opp'n"), Ex. A. By all indications, the case is currently under consideration by the IJ pursuant to the BIA's December 2, 2009 order.
Petitioner filed the instant habeas petition on July 15, 2009, arguing that his indefinite detention by ICE violates his constitutional rights to substantive and procedural due process and to be free from cruel and unusual punishment. He seeks his immediate release on his own recognizance or with reasonable conditions of supervision and termination of his deportation proceedings because he has not committed crimes justifying deportation and is a U.S. citizen.
II. Respondents' Motion to Dismiss
On September 29, 2009, this court ordered respondents to submit an answer or motion in response to the petition, and respondents have accordingly submitted a motion to dismiss for lack of jurisdiction, Dckt. No. 46. Respondents argue that petitioner must wait until he has a final order of removal from the IJ and BIA and then seek review of that order in the Ninth Circuit Court of Appeals, not this Court. In the meantime, respondents contend that petitioner is not entitled to release or a bond hearing because he is subject to mandatory detention under section 1226(c).
To the extent that petitioner seeks review of the merits of any removal order that may finally issue at the termination of his administrative proceedings, respondents are correct -- the Court of Appeals is the exclusive venue to obtain such review. 8 U.S.C. § 1252(a)(5); Singh v. Gonzales, 499 F.3d 969, 977-79 (9th Cir. 2007). Under § 1252(a)(5), this Court lacks jurisdiction to review whether petitioner is subject to deportation because he has committed crimes subjecting him to deportation and is not a U.S. citizen, and petitioner must pursue review of those issues in the Court of Appeals. 8 U.S.C. § 1252(a)(5); see 8 U.S.C. § 1252(b)(5) (providing that the Court of Appeals may determine citizenship issues that present no genuine issue of fact or transfer citizenship issues that present a genuine factual issue to the district court for the district in which the petitioner resides). The undersigned therefore recommends that the district judge dismiss petitioner's request that the Court terminate his deportation proceedings because he has not committed an aggravated felony or crime of moral turpitude and is a U.S. citizen.
The bulk of the petition, however, seeks review of a matter independent of the merits of the removal order -- whether petitioner's detention is unlawful. This Court has jurisdiction over that claim, to the extent that it does not implicate the merits of the removal order. Singh, 499 F.3d at 978 (§ 1252(a)(5) applies only to challenges to orders of removal and not "challenges that arise independently"); see Casa-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (reviewing the merits of a district court's order on petitioner's § 2241 petition challenging his detention by immigration authorities).
Respondents argue that petitioner is not entitled to the relief he seeks (release on his own recognizance or a bond hearing), because he is detained under section 1226(c), which provides for mandatory detention of aliens found deportable for having committed certain crimes. Petitioner argues that he is not subject to section 1226(c). The Court agrees.
As noted by the Ninth Circuit in Casas-Castrillon v. Dep't of Homeland Sec., whether petitioner must be released or provided a bond hearing "turns in part on locating him within the statutory framework of detention authority provided by" sections 1226 and 1231, because "'[w]here an alien falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.'" Casas-Castrillon, 535 F.3d at 945 (quoting PrietoRomero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008)). Generally, an alien initially detained under section 1226(c) remains detained under the authority of that section until proceedings before the BIA are complete and the agency has issued its final order of removal. CasasCastrillon, 535 F.3d at 947-48. If the alien seeks review of the removal order before the Ninth Circuit, the government's authority to detain him shifts to that provided for by section 1226(a) until the court completes review. Id. at 948. If the court denies relief and lifts its stay of removal, the government's authority to detain the alien shifts again to that provided for by section 1231(a). Id. at 947. If, instead, the court grants relief and remands the case to the BIA, the government's authority to detain the alien remains under section 1226(a). Id. at 948.
Although the initial order of removal is no longer final after remand from the Court of Appeals, the government's authority to detain the alien does not shift back to that provided for by section 1226(c) -- "the mandatory, bureaucratic detention of aliens under § 1226(c) was intended to apply only for a limited time" and ends when the BIA affirms the first removal order. Id.
The parties do not dispute that petitioner sought review of his final order of removal in the Ninth Circuit and that that court stayed his removal and remanded the case to the BIA to determine petitioner's eligibility for waiver of inadmissibility under section 1182(c). Accordingly, under Casas-Castrillon,even if petitioner was initially properly detained under section 1226(c), the government may no longer claim authority from that section to detain him. Instead, the authority for petitioner's detention now comes from section 1226(a). Id. ("An alien whose case is being adjudicated by the agency for a second time -- after having fought his case in this court and won, a process which often takes more than a year -- has not received expeditious process" and is therefore not subject to detention under section 1226(c)). Under section 1226(a), the Attorney General must provide an alien subjected to prolonged detention with a bond hearing to determine whether he poses a flight risk or danger to the community. Id. at 951. Accordingly, respondents' contention that petitioner is not entitled to release or a bond hearing because he is detained under section 1226(c) is contrary to the law of this Circuit, and the undersigned recommends that their motion to dismiss the petition on that ground be denied.
III. Petitioner's Requests for Injunctive Relief
Petitioner has submitted two requests for injunctive relief: (1) a motion for a preliminary injunction ordering his release on his own recognizance, Dckt. No. 45 and (2) a motion for an order directing respondents to transfer petitioner to JP Morgan Chase & Co. in San Francisco and to the ICE facility in San Francisco, Dckt. No. 48. Petitioner has also submitted a request for expedited ruling, Dckt. No. 47, and a request for status on the same, Dckt. No. 53. For the ...