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Alejandro Bogarin-Flores v. Janet Napolitano

August 10, 2012


The opinion of the court was delivered by: John A. Houston United States District Judge



Currently pending before this Court is respondents Janet Napolitano, Secretary of Department of Homeland Security and Eric Holder, Attorney General's ("respondents") motion to dismiss the instant petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 by petitioner Alejandro Bogarin-Flores ("petitioner"), appearing through counsel. The petition seeking immediate release from detention by the United States Immigration and Customs Enforcement ("ICE"), a part of the Department of Homeland Security ("DHS"). After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court DENIES respondents' motion to dismiss and GRANTS the petition for writ of habeas corpus.


Petitioner, a citizen of Mexico, has lived in the United States since 1984 and has been a lawful permanent resident since 1993. On December 15, 2009, petitioner pled guilty to a violation of California Health and Safety Code §§ 11379(a) and 11378, possession of a controlled substance with intent to distribute while personally armed with a firearm, and subsequently received a suspended sentence of 365 days and three years probation.

On January 20, 2012, petitioner was arrested by agents of DHS. A hearing before the Executive Office of Immigration Review was held before an immigration judge on February 8, 2012, wherein petitioner was notified he was subject to mandatory detention and petitioner's request for a bond hearing was denied for lack of jurisdiction pursuant to § 236(c) of the Immigration and Naturalization Act ("INA").

Petitioner filed the instant petition on February 14, 2012. Respondents' motion to dismiss was filed on April 12, 2012. Petitioner filed a response in opposition to respondents' motion on May 1, 2012. On August 9, 2012, petitioner filed a motion seeking to expedite the ruling on the instant petition. See Doc. # 9.


Petitioner contends, in his petition, that the DHS wrongly interpreted the provision of the INA, 8 U.S.C. § 1226(c)(1)(B), governing mandatory detention of aliens. See Pet. ¶¶ 1-3. Specifically, petitioner contends the immigration judge erred by refusing to hold an individualized bond hearing on the grounds that the immigration judge was bound by § 236(c) of the INA,*fn1 among other things. Pet ¶¶ 11-12. Petitioner contends the decision to detain him was based on an erroneous interpretation of § 236(c). Pet. ¶ 12.

Respondents move to dismiss the instant petition on the grounds that (1) petitioner failed to name the proper respondent; and (2) petitioner is properly subject to mandatory detention and is not entitled to a bond hearing based on petitioner's status as a convicted aggravated felon. Doc. # 7-1.

1. Proper Respondent

According to defendants, the proper respondent in this action is the warden of the institution holding petitioner and the petition should be filed in the district of his confinement. Doc. # 7-1 at 2 (citing Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)("Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name the warden as respondent and file the petition in the district of confinement"); Smith v. Idaho, 392 F.3d 340, 355 (9th Cir. 2004)). Based on this authority, defendants contend that the warden of the facility housing petitioner, and not the Attorney General and the Secretary of Homeland Security, who are the named respondents here, is the proper respondents. Id. Thus, defendants contend the instant petition should be dismissed for lack of jurisdiction. Id. at 3 (citing Padilla, 542 U.S. at 435; Smith, 392 F.3d at 355-56.

Petitioner, in response, does not dispute that Padilla found the warden was the appropriate respondent in § 2241 habeas cases such as this, and explicitly declined to resolve the split of authority regarding whether the Attorney General is the appropriate respondent in habeas claims made by aliens pending deportation. Doc. # 8 at 1-2 (citing Padilla, 542 U.S. at 436 n.8).*fn2 Petitioner, however, argues that, because the warden of the detention facility where petitioner is currently housed has no legal authority to release a detainee, the proper respondent here is the Attorney General and the Secretary of Homeland Security. Id.

This Court is mindful that there is no Ninth Circuit authority addressing this issue. Nevertheless, this Court finds the reasoning presented by petitioner is persuasive. Since the warden of the facility holding petitioner, in this case the Otay Mesa Detention Facility which is run under contract by the Corrections Corporation of America, has no authority to release petitioner, it would be counter-productive to place the responsibility of responding to the instant petition upon him. This Court agrees that such responsibility should fall upon the officials that are legally responsible for petitioner's continued detention, that is, the Attorney General and the Department of Homeland ...

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