The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING AND DISMISSING PETITION
On February 25, 2011, Petitioner Victor Martinez filed the present Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2241, alleging that he was being detained by the Department of Homeland Security ("DHS") without a bond hearing pending removal and seeking release from custody because his detention has become indefinite. [Doc. No. 1.] On June 3, 2011, the Court ordered the Immigration Court of El Centro, California to provide Martinez with a bond hearing pursuant to Casas-Castrillon v. D.H.S., 535 F.3d 942 (9th Cir. 2008), and Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008). [Doc. No. 17.] On June 16, 2011, an Immigration Judge ("IJ") conducted a bond hearing as ordered. On July 20, 2011, the IJ issued a decision finding Martinez to be a danger to the community and denying his request for release. [Doc. No. 21-1.] In light of the bond hearing, the Court issued an Order to Show Cause Why the Petition Should Not Be Denied as Moot. [Doc. No. 28.] Martinez filed a timely response on November 14, 2011. [Doc. No. 31.] Having considered the respective arguments, and for the reasons set forth below, the Court hereby DENIES and DISMISSES the Petition.
Martinez is a native and citizen of Ecuador. He immigrated to the United States on July 19, 1970 as a lawful permanent resident. All of his close family is currently in the United States. Martinez has generally worked as a truck driver and as a cashier. He admits to having a mental health problem, whereby he hears voices, and an alcohol problem. Originally, the voices told him to take things, which led to numerous theft related convictions. The voices now sound like his mother and daughter and urge him for help. According to Martinez, the medicines he was prescribed do not appear to control the voices and, as a result, he stopped taking those medicines.
Martinez has a lengthy criminal history. He had been sentenced to state prison five or six times, most recently in May 2009 for petty theft with priors. [Doc. No. 9-1, at 8-9; Doc. No. 21-1, at 5.] Martinez claims his bad conduct is the result of his alcoholism and mental health disease.
Martinez also has a very lengthy and convoluted immigration history. As relevant here, in September of 2002, the Immigration and Naturalization Service ("INS") placed Martinez in removal proceedings, charging him with removability for an aggravated felony and convictions of crimes involving moral turpitude. On November 5, 2002, an IJ ordered Martinez removed to Ecuador. The BIA summarily affirmed on July 30, 2003, and Martinez sought direct review by the Ninth Circuit. The Ninth Circuit ultimately remanded on December 20, 2007, finding that Martinez's 1996 burglary conviction did not qualify as an aggravated felony. On May 23, 2008, the BIA remanded the proceedings to the IJ. [See Doc. No. 9-1, at 13-14.]
While the above appeals were ongoing, Martinez filed a habeas petition challenging the legality of his detention. See Martinez v. Gonzalez, 504 F. Supp. 887, 890 (C.D. Cal. 2007).Pursuant to District Judge Hatter's order, a bond hearing was conducted before an IJ, who ordered Martinez released on a $10,000 bond in a written decision dated February 8, 2007. Id. at 891. Martinez posted the bond and was released on February 12, 2007. Id. On August 17, 2007, the district court granted Martinez's habeas petition, finding that Martinez's continued detention was not authorized by statute and that he therefore was entitled to release. Id. at 900.
On November 19, 2009, the DHS again took Martinez into custody and removal proceedings were re-opened. [Doc. No. 9-1, at 8-11.] On November 16, 2010, the IJ ordered Martinez removed to Ecuador, finding that he was not entitled to any relief from removal or voluntary departure. [Id. at 18-27.] The BIA upheld the IJ's removal order on March 4, 2011. [Id. at 31-32.] On February 3, 2011, the BIA also upheld the IJ's December 9, 2010 decision that Martinez was not entitled to a Casas bond hearing. [Id. at 28-30.] Martinez sought Ninth Circuit review of the BIA's affirmance of the removal order, and those proceedings are still ongoing. See Martinez v. Holder, No. 11-70751 (9th Cir. filed Mar. 15, 2011). An interim stay of removal was initially automatically issued pursuant to theNinth Circuit General Order 6.4(c)(1). However, on August 9, 2011, in a brief order, the Ninth Circuit denied Martinez's motion to stay removal pending appeal, citing Nken v. Holder, 129 S. Ct. 1749 (2009), and Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) (per curiam). [Case No. 11-70751, Dkt. No. 12 (9th Cir.).]
Martinez filed the present Petition on February 25, 2011. [Doc. No. 1.] Respondent filed a return to the Petition on April 8, 2011, and Martinez filed a traverse on April 28, 2011. [Doc. Nos. 9, 11.] On June 3, 2011, the Court ordered that Martinez receive a Casas bond hearing before an IJ. [Doc. No. 17.] That hearing was conducted on June 16, 2011, and on July 20, 2011, the IJ issued a written decision finding Martinez to be a danger to the community and denying his request for release. [Doc. No. 21-1.] On October 7, 2011, in light of the bond hearing, the Court issued an Order to Show Cause Why the Petition Should Not Be Denied as Moot. [Doc. No. 28.] Martinez filed a timely response on November 14, 2011. [Doc. No. 31.] The Court is issuing this order without oral argument pursuant to the Civil Local Rule 7.1(d)(1).
I. Statutory authority for Martinez's current detention
Martinez challenges the legality of his detention and seeks release pending removal. The initial question the Court has to resolve is pursuant to which statutory authority Martinez is being presently detained. As the Ninth Circuit has recognized, "[t]he statutory scheme governing the detention of [aliens such as Martinez] is not a model of clarity." See Prieto-Romero, 534 F.3d at 1058. Martinez is either detained under 8 U.S.C. § 1231(a), which governs detention "during" and "beyond" the removal period, or under 8 U.S.C. § 1226(a), which permits detention "pending a decision on whether the alien is to be removed from the United States." "The distinction has real consequences for the alien, because detention under § 1231(a)(2), for example, is mandatory but limited to a set period of time, whereas detention under § 1226(a) is discretionary and the necessity of detention can be reviewed by an IJ and the BIA." Prieto-Romero, 534 F.3d at 1059. An alien detained under § 1231(a), unlike an alien detained under § 1226(a), cannot obtain a bond hearing before an IJ. See id. at 1059 n.4 (citing 8 C.F.R. § 236.1(c)(8)). But see Diouf v. Mukasey, 542 F.3d 1222, 1233-35 (9th Cir. 2008) (reserving this specific question for later determination).
Another wrinkle facing the Court is that detention authority is not static; rather, "the Attorney General's authority over an alien's detention shifts as the alien moves through different phases of administrative and judicial review." Casas-Castrillon, 535 F.3d at 945. This makes the task of determining where an alien falls within the statutory scheme particularly difficult for the Court because, as the Ninth Circuit has explained, the Attorney General's authority over the alien presents "a moving target." Id. at 945-46. Thus, the Attorney General's authority over the alien at the time the habeas petition is filed may differ from the authority at the time the Court issues its order, which in turn may differ from the authority at the time the Court of Appeals hears oral argument on appeal. Id. at 946. Martinez's own case presents this problem.
It appears that when Martinez was first taken into custody as an alien who has committed two or more crimes involving moral turpitude, [see Doc. No. 9-1, at 8-11], he was subject to mandatory detention. See 8 U.S.C. § 1226(c)(1)(B) ("The Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) . . . of this title." (emphasis added)). The Attorney General may ...