UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 22, 2011
DEPARTMENT OF HOMELAND SECURITY, CHIEF COUNSEL, RESPONDENT.
The opinion of the court was delivered by: Hayes, Judge:
On August 23, 2011, Petitioner initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.*fn1 (ECF No. 1).
I. In Forma Pauperis
Petitioner has not prepaid the $5 filing fee mandated by 28 U.S.C. § 1914(a). Petitioner has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Petitioner has submitted a Declaration stating that he is not employed, has no source of income, and has no property of value. Petitioner has submitted a certification that he has no funds in his inmate account. The Court GRANTS Petitioner's application to proceed in forma pauperis and allows Petitioner to prosecute this action as a poor person without being required to prepay fees or costs and without being required to pose security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.
Petitioner alleges that he is currently in the custody of the Department of Homeland Security. Petitioner alleges that on February 2, 2011, he was arrested "for deportation proceedings." Id. at 3. Petitioner alleges that he first applied for citizenship on September 17, 1990. Petitioner alleges that "[Immigration and Naturalization Service] did not deny but footdrag[ed] on [his] citizenship application for 7 years." Id. Petitioner alleges that he suffered criminal convictions in 1998 and 2008. Petitioner alleges that "[i]f [Immigration and Naturalization Services] had approved [his] citizen application, a 1998 and 2008 conviction would not have a deportation effect today." Id. Petitioner seeks an order from this Court "to grant him the status of a US National based on his 1990 application for US Citizenship when he had no criminal record under [8 U.S.C. § 1101(a)(22)(B)] as a non citizen resident who owes permanent allegiance to US." Id. at 5.
This Court may entertain a petition for writ of habeas corpus from a person "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The Court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Having reviewed the Petition, the Court concludes that summary dismissal is unwarranted at this time.
III. Conclusion and Order
IT IS HEREBY ORDERED that Petitioner's application to proceed in forma pauperis is GRANTED. (ECF No. 7). IT IS FURTHER ORDERED that Respondents are ORDERED TO SHOW CAUSE why the Petition should not be granted by, no later than October 24, 2011:
(1) filing a written return;
(2) filing copies of all documents, orders and transcripts relevant to the Petition; and
(3) filing a memorandum of law and fact fully stating Respondent's position and making a recommendation regarding the need for an evidentiary hearing on the Petition.
If Petitioner wishes to reply to the return, he may do so by filing a traverse filed no later than November 14, 2011.
The Clerk of the Court shall transmit to the United States Attorney's Office a copy of the Petition (ECF No. 1) and this Order.
IT IS SO ORDERED.
United States District Judge WILLIAM Q. HAYES