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Fernando Maldonado v. Janet Napolitano

April 17, 2012

FERNANDO MALDONADO,
PETITIONER,
v.
JANET NAPOLITANO, ET ALS, RESPONDENTS.



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

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

On October 6, 2011, Petitioner, a detainee in the custody of the Department of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a return to the petition on January 13, 2012. Petitioner filed a reply on February 6, 2012. After a thorough review of the papers and applicable law, the Court DENIES the petition for writ of habeas corpus.

Background

The Court recites the background facts in the order denying Petitioner's prior petition for writ of habeas corpus in case no. 10cv1014-AJB(BLM).*fn1 (Dkt. No. 22 at 1-5.)

Petitioner is a native and citizen of Honduras who entered the United States without inspection prior to 1996. (Pet., Ex. C.) On October 4, 1995, he married in the United States. (Pet., Ex. A.) On November 30, 1995, Petitioner was convicted of misdemeanor battery on his spouse and placed on probation for three years. (Pet., Ex. B; Resp't Ex. 39.) On September 29, 1995, the INS placed Petitioner in deportation proceedings. (Resp't Ex. 39.) On December 1, 1995, the IJ granted his request to depart the United States voluntarily before June 3, 1996 in lieu of an order of deportation. (Resp't Ex. 39.) Petitioner did not appeal to the Board of Immigration Appeals ("BIA") and he did not depart the United States, so his deportation order became effective and final on June 3, 1996. (Resp't Ex. 37.) On December 13, 1996, Petitioner was deported to Honduras. (Resp't Ex. 39.)

In January 1997, Petitioner unlawfully returned to the United States by entering without inspection. (Pet., Ex. C; Resp't Ex 37.) On March 3, 2003, Petitioner was convicted of a misdemeanor of Driving Under the Influence. (Resp't Ex. 5.)

Around June 22, 2001, Petitioner filed an application for temporary protected status ("TPS") which the INS approved. (Pet., Ex. C; Resp't Exs. 1-4.) Because of the two misdemeanor convictions, on April 19, 2007, the DHS withdrew his TPS status. (Pet., Ex. B; Resp't Exs. 5-6.) On August 24, 2007, the superior court vacated Petitioner's plea of his 1995 criminal case as legally invalid. (Pet., Ex. B; Resp't Exs. 7-8.) Petitioner filed an appeal regarding the withdrawal of his TPS. (Pet., Ex. B.) On October 5, 2007, the DHS denied the appeal. (Pet., Ex.

B; Resp't Exs. 10-12.)

On July 31, 2008, Petitioner was arrested for disorderly conduct/public intoxication in violation of California Penal Code section 647(f). (Resp't Ex. 37.) He was transferred into the custody of ICE on that same day and placed him in removal proceedings. (Resp't Ex. 37.) On September 18, 2008, the IJ granted DHS's motion and terminated removal proceedings in order for the DHS to reinstate the prior 1995 order of deportation to Honduras. (Resp't Exs. 16, 37.) However, in response to the Court's request for additional documents, it was realized that Respondents have not yet reinstated the 1996 deportation order. (Gov't Response filed on 7/29/11, Dkt. No. 20.) On July 30, 2011, Respondent filed a first supplemental lodgment informing the Court that on July 29, 2011, DHS reinstated the prior deportation order. (Dkt. No. 21; Ex. 58.)

On September 26, 2008, Petitioner filed an appeal before the BIA arguing that his prior removal order should not have been reinstated and that he should have been considered for TPS and Adjustment of Status. (Pet. Suppl. Brief at 7; Resp't Ex. 37.) On February 10, 2009, the BIA dismissed the appeal. (Resp't Exs. 13, 37.) On February 23, 2009, Petitioner petitioned for review of the BIA's decision and motion for stay before the Ninth Circuit Court of Appealsin Maldonado v. Holder, No. 09-70515. (Resp't Exs. 13, 27.) The stay of removal was granted. (Resp't Ex. 37.) On July 1, 2009, the Ninth Circuit dismissed the petition for lack of subject matter jurisdiction because its direct review of immigration cases is limited to a review of final orders of removal. (Resp't Exs. 13-14.) A stay of removal was in effect from February 23, 2009 until August 28, 2009. (Resp't Exs. 27-28.)

In August 2009, Petitioner moved the BIA to reopen his previous 1995 deportation proceedings based on ineffective assistance of counsel. (Pet. at 7;

Pet. Suppl. Brief at 10.) On September 10, 2009, the BIA denied the August 2009 motion to reopen for lack of jurisdiction because jurisdiction to review any such motion remained with the IJ because no appeal was taken from the IJ's December 1, 1995 decision finding Petitioner removable. (Resp't Exs. 18, 37.) On September 18, 2009, he filed a petition for review of the BIA's decision and motion for stay with the Ninth Circuit in Maldonado v. Holder, No. 09-72975 to review the BIA's decision. (Resp't Ex. 32.) On April 14, 2010, the Ninth Circuit denied the petition for review upholding the BIA's decision and dismissed the remaining claims of ineffective assistance of counsel, eligibility for cancellation of removal, whether petitioner is still a candidate for TPS and whether the prior deportation in 1995 was valid because he failed to exhaust his administrative remedies. (Resp't Exs. 18-19.) A stay of removal was in effect from September 18, 2009 until June 7, 2010. (Resp't Ex. 32.)

On September 14, 2009, the IJ held a bond hearing and determined that, because Petitioner was subject to a final order of removal that was not subject to judicial review, there was no jurisdiction to conduct bond review pursuant to CasasCastrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) and/or Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008). (Resp't Ex. 16.) He appealed the IJ's decision. (Resp't Ex. 16.) On January 27, 2010, the BIA upheld the IJ's decision and dismissed the appeal. (Resp't Exs. 16-17.)

On October 7, 2009, Petitioner moved the IJ to reopen the proceedings. (Pet. at 7.) On November 9, 2009, the IJ denied the motion to reopen as untimely. (Pet. at 7; Resp't Ex. 21.) The IJ specifically concluded that Petitioner did not voluntarily depart within the time allowed in December 1, 1995 and the motion was untimely and would not be equitably tolled because he did not show that he acted with due diligence in pursuing his claim regarding ineffective assistance of counsel. (Pet. Supp. Brief at 11.) He appealed the IJ's decision to the BIA. (Pet. at 7.) On April 13, 2010, the BIA upheld the IJ's decision denying his motion to reopen an order of deportation for failing to show that he exercised due diligence in pursuing his ineffective assistance of counsel claim. (Resp't Exs. 20-22.) On April 21, 2010, Petitioner petitioned for review of the BIA decision and motion for stay before the Ninth Circuit in Maldonado v. Holder, No. 10-71252. (Resp't Ex. 36.) On June 15, 2010, the Ninth Circuit found the petition for review to be appropriate for summary dismissal and set a briefing schedule for an order to show cause why the petition should not be summarily denied. (Resp't Ex. 23.) On August 26, 2010, the Ninth Circuit granted respondent's motion for summary disposition. (Resp't Suppl. Brief, Ex. 46-48.) The Court also held that the agency did not abuse its discretion in denying the untimely motion to reopen because Petitioner failed to ...


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