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Francisco Gonzalez*Fn1 v. Ice - I.N.S. Immigration

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 13, 2011

FRANCISCO GONZALEZ*FN1, PETITIONER,
v.
ICE - I.N.S. IMMIGRATION, RESPONDENT.

ORDER

Petitioner is an inmate at the Sacramento County Jail and is apparently currently being detained due to an immigration hold. He has filed with this court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner has consented to Magistrate Judge jurisdiction over this action for all purposes pursuant to28 U.S.C. § 636(c). Doc. No. 3. For the reasons set forth below, the court will dismiss this action.

In his habeas petition, petitioner contends that on February 7, 2011, he was "picked up" for driving under the influence ("D.U.I.") with prior convictions, and is now facing deportation for illegal re-entry into the United States. (Pet. (Doc. No. 1), at 3.) Petitioner asserts that "[m]y petition is basically on I.N.S. ICE" and contends that "they are breaking the law . . . but they don't [sic] get no trouble!" (Id.) Petitioner explains that in 2009, he was returned to Mexico after he signed papers, but he was never told at that time he was being deported. (Id.) Petitioner believes that he should have been given the opportunity to speak to an attorney or judge before he signed the papers that resulted in his return to Mexico. (Id.) In terms of relief, petitioner seeks the lifting of the INS hold which is keeping him in custody and he requests that upon his release he be placed on supervised release. (Id. at 4.) Finally, petitioner states that he wishes to stay in the United States and would "rather be in prison for life in California instead of going to Mexico." (Id.)

The court's own records reveal that petitioner has previously filed a federal habeas petition challenging his INS hold.*fn3 In Gonzalez v. Martel, Case No. CIV-11-2121 GGH P petitioner was advised that under the REAL ID Act, the "federal district court jurisdiction to hear a habeas challenge to an administrative decision relating to a removal order has been curtailed by section 106(a) of the REAL ID Act. See 8 U.S.C. § 1252(a)(5)." Case No. CIV-11-2121 GGH P, Doc. No. 9 at 2. Petitioner was also informed at that time that it is ICE and not the district court that determines whether he is deportable or removable, and whether he is entitled to a stay of removal. Id. at 3(citing Ceja v. Immigration and Customs Enforcement, 2009 WL 910858, at *2 (E.D. Cal. Apr. 2, 2009). Because petitioner was seeking to challenge his INS hold rather than a state court issued judgment of conviction, his earlier-filed habeas action was dismissed.

Likewise in this case, petitioner is again challenging the legality of an immigration hold placed upon him by immigration officials. That is a challenge over which this court lacks jurisdiction.*fn4

For the reasons set forth above, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to correct the court's docket to reflect petitioner's name as Francisco Gonzalez;

2. Petitioner's petition for writ of habeas corpus is denied for lack of jurisdiction;

and

3. This action is dismissed.


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