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Juan Carlos Valdez-Bernal v. Michael Chertoff

August 19, 2011

JUAN CARLOS VALDEZ-BERNAL,
PLAINTIFF,
v.
MICHAEL CHERTOFF, ET ALS., DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

On April 29, 2008, Petitioner Juan Carlos Valdez-Bernal ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges his detention alleging that he is a United States citizen and contends that his constitutional rights have been violated as he is being indefinitely detained. After a thorough review of the papers and applicable law, the Court DENIES the first amended petition for writ of habeas corpus.

Background

Petitioner is a native of Mexico who immigrated to the United States on February 23, 1968. (Resp't Exs. 1-2.) On August 8, 2001, he was convicted in California state court for possession of a controlled substance and sentenced to five years in prison. (Id.) On April 15, 2005, the Department of Homeland Security ("DHS") took custody of Petitioner for the 2001 conviction and placed him in removal proceedings charging him with deportability under 8 U.S.C. § 1227(a)(2)(B)(i). (Id., Ex.2.)

During removal proceedings, Petitioner admitted the alleged grounds for deportability but claimed to be a United States citizen through his father. After evidentiary hearings on June 2 and October 6, 2005, the IJ found that Petitioner had not supported his claim to U.S. citizenship. (Id., Exs. 35-48.) On October 6, 2005, the Immigration Judge ("IJ") ordered Petitioner removed from the United States. (Id., Exs. 35-47.)

The IJ also exercised his discretion to deny Petitioner's application for relief from removal under 8 U.S.C. § 1229b(a) (cancellation of removal) and his application for voluntary departure under 8 U.S.C. § 1229c(b). (Id., Exs. 35-47.; First Am. Pet., Appendix B.)

Petitioner appealed the decision to the Board of Immigration Appeals ("BIA"). On February 28, 2006, the BIA upheld the IJ's decision. (Resp't Exs. 61-63.) On March 13, 2006, Petitioner petitioned for review in the Ninth Circuit in Valdez v. Gonzales, No. 06-71306, and obtained a stay of removal. (Resp't Ex. 89.) DHS provided Petitioner with custody review pending his judicial review. (Id., Exs. 64-86.)

On December 19, 2007, the Ninth Circuit found that the IJ had not informed Petitioner of his right to counsel and therefore prevented him from fully investigating and litigating his derivative citizenship claim. (Resp't Exs. 93-95.) The case was remanded to give Petitioner an opportunity to present evidence in support of his derivative citizenship claim in a new hearing before the IJ. (Id.) The mandate issued on February 12, 2008. (Id., Ex. 91.)

On October 6 and 20, 2008, Petitioner was afforded a bond hearing. The IJ orally denied bond on October 20, 2008. (Resp't Ex. 103.) On November 18, 2008, Petitioner filed an appeal of the IJ's bond decision. (Id., Exs. 104-05.) On December 3, 2008, the IJ denied bond. (Id., Exs. 106-10.) Petitioner appealed to the BIA and the BIA upheld the IJ's decision. (Id., Exs. 111-14.)

On January 9, and March 23, 2009, the IJ held evidentiary hearings on Petitioner's U.S. citizenship claim. (Resp't Exs. 116-215.) The IJ issued his detailed written decision on April 10, 2009 finding that Petitioner had not established that his father had satisfied the residency requirement. (Resp't Exs. 216-27.) On April 23, 2009, Petitioner appealed to the BIA. (Resp't Exs. 228-30.) On July 29, 2009, the BIA denied his appeal. (Dkt. No. 26 at 2.) On August 13, 2009, Petitioner appealed the BIA's denial to the Ninth Circuit in case no. 09-72575. (Dkt. No. 26, Ex. A.) The Ninth Circuit granted a temporary stay of removal. (Id.) On May 12, 2011, the Ninth Circuit denied the petition for review and determined that Petitioner had failed to produce "substantial credible evidence to create a genuine issue of material fact about whether his father was physically present prior to 1950." (Resp't Suppl Briefing filed on 7/11/11, Exs. 237-38.) On June 27, 2011, Petitioner filed a petition for panel rehearing and petition for rehearing en banc. (Dkt. No. 34, Ex. A.) On July 20, 2011, the Ninth Circuit denied Petitioner's petition for rehearing and rejected the petition for rehearing en banc. (Id.) On July 28, 2011, the mandate issued and the stay of removal lifted. (Ninth Circuit Dkt., Case No. 09-72575.)

On April 29, 2008, Petitioner filed a petition for writ of habeas corpus in this Court. After proceedings, Petitioner filed a first amended petition on June 29, 2009. Respondents filed a return on July 27, 2009. On August 10, 2009, Petitioner filed a traverse. On September 2, 2009, Petitioner filed a notice of changed circumstances. On March 25, 2011, the case was transferred to the undersigned judge. Pursuant to the Court's order, Petitioner filed a brief on June 20, 2011 and on July 11, 2011, Respondents filed a response.

On July 5, 2011, Petitioner filed an emergency request for judicial notice. On July 22, 2011, Petitioner also filed an emergency motion for temporary stay of removal. Respondent filed a response on July 24, 2011. A hearing was held on July 26, 2011 regarding the emergency request for judicial notice and emergency motion for stay. Kristi Hughes, Esq. appeared on behalf of Petitioner and Sam Bettwy, Esq. appeared on behalf of Respondents. (Dkt. No. 36.) On July 29, 2011, the Court denied Petitioner's motion for stay of removal and denied Petitioner's emergency request for judicial notice. (Dkt. No. 37.)

Discussion

In the first amended petition, Petitioner argues that (1) he must be ordered released because his detention violated federal law and the U.S. Constitution because he is a U.S. citizen; and (2) he is entitled to be immediately released because the government has failed to provide him with a bond hearing within 60 days; the Government failed to meet its burden of justifying continued detention; and the bond hearing held did not meet the standard for ...


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