The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
On June 11, 2012, Petitioner Rohan Anthony Coombs, a detainee proceeding pro se, in the custody of the Department of Homeland Security ("DHS")*fn1 , Bureau of Immigration and Customs Enforcement filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his bond hearing. Respondents filed a return on August 10, 2012. (Dkt. No. 7.) Petitioner filed a traverse on August 22, 2012. (Dkt. No. 8.) After a thorough review of the papers and applicable law, the Court DENIES the petition for writ of habeas corpus.
Petitioner, a native and citizen of Jamaica, immigrated to the United States as a lawful permanent resident in 1981. (Notice of Lodgment ("NOL"), Ex. D.) From 1987 to 1991, he served in the United States Marine Corps which included active combat in Kuwait. (Id., Ex. K.) He was honorably discharged on May 24, 1991 and re-enlisted in the Marines the following day. (Id.) In 1992, Petitioner pled guilty to possession of drug abuse paraphernalia and possession of controlled substances with intent to distribute, wrongfully fleeing a Staff Sergeant, and wrongfully distributing cocaine and marijuana in violation of the Uniform Code of Military Justice. (Id., Ex. A.) On August 6, 1992, Petitioner was sentenced to 18 months in prison and dishonorably discharge. (Id.) He appealed to the U.S. Navy-Marine Corps Court of Miliary Review, which affirmed the conviction. (Id., Ex. B.)
Since then, Petitioner was convicted on three separate occasions in 2006, 2007 and 2008 of, among other things, possession of a controlled substance for the purposes of sale. (Id., Ex. K.) The 2007 and 2008 crimes were done while he was on probation. (Id.) As to the last crime in 2008, Petitioner was convicted of possession for sale of marijuana in violation of California Health & Safety Code section 11359 and sentenced to 16 months in prison. (Id., Ex. C.)
In 2008, Petitioner came to the attention of Immigration and Customs Enforcement ("ICE"). (Id., Ex. D.) ICE initiated removal proceedings against Petitioner charging him with being removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance offense. (Id., Ex. E.)
Due to his criminal convictions, Petitioner was mandatorily detained under 8 U.S.C. § 1226(c) during his administrative removal proceedings. (Id., Ex. F.) He requested a redetermination of the custody decision but the request was denied. (Id., Ex. G.)
On March 11, 2010, after the removal hearing, the immigration judge
Petitioner's motion to terminate removal proceedings and found him
removable as charged. (Id., Ex. H.) The IJ ordered Petitioner removed to Jamaica. (Id. at 4.)
Petitioner appealed the removal order to the BIA, which dismissed the
appeal on August 31, 2010. (Id., Ex. I.) On September 23, 2010,
Petitioner field a petition for review with the Ninth Circuit Court of
Appeals which granted a stay of removal pending judicial review of the
removal order. (Id., Ex. J.)
On June 6, 2011, while Petitioner's petition for review was pending before the Ninth Circuit, the IJ granted his request for bond redetermination pursuant to Casas-Castrillon, v. D.H.S., 535 F.3d 942 (9th Cir. 2008), and Prieto-Romero, 534 F.3d 1053 (9th Cir. 2008). (Id., Ex. K.) On July 11, 2011, the IJ held a bond hearing. (Id.) On August 4, 2011, the IJ issued an order denying bond and found that the DHS had proven by clear and convincing evidence that Petitioner is a flight risk and a danger to the community. (Id. at 6.) Petitioner did not appeal the IJ's order.
Instead, Petitioner filed a habeas petition in this Court on September 21, 2011 in case no. 11cv2201-BEN(BGS). (Id., Ex. M.) On October 27, 2011, while the petition was pending in this Court, Petitioner filed an appeal of the IJ's bond decision with the BIA. (Id., Ex. L.) On November 30, 2011, the BIA denied Petitioner's appeal as untimely. (Id.) On May 29, 2012, the district judge in case no. 11cv2201-BEN(BGS) denied as moot Petitioner's request for a bond hearing since he was granted a bond hearing and dismissed without prejudice Petitioner's due process challenges to the bond hearing for failure to exhaust administrative remedies. (Id.; Ex. M.) Although Petitioner had exhausted at the time of the Court's decision, the district judge stated "[t]o the extent Coombs has now exhausted his administrative remedies, he may file a new habeas action." (Id. at 6.)
Petitioner seeks to be released on supervised release or seeks an order by the Court directing Respondents to hold another bond hearing. (Pet. at 2.) He contends that his due process rights were violated at the bond hearing because the Casas standards for a bond hearing were not followed. (Id.) In addition, he argues that the IJ that presided over his bond hearing was prejudiced against him because he was also the immigration judge that originally ordered him deported. (Id.)
Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge "the extent of the Attorney's General's authority" to detain a removable alien under the general detention statutes. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). The REAL ID Act of 2005 amended the Immigration and Nationality Act ("INA") and vests jurisdiction over final removal orders with the court of appeals. Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006). The Real ID Act does not divest the district court of jurisdiction because the Act was "not intended to 'preclude habeas review over challenges to detention that are independent of challenges to removal orders.'" Hernandez v. Gonzales, 424 F.3d 43 (9th Cir. 2005) (citation omitted). Here, ...