June 27, 2013
CHAVARRIA SERGIO ANTONIO, Petitioner,
JANET NAPOLITANO, Secretary of Department of Homeland Security; et al., Respondents.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
JOHN A. HOUSTON, District Judge.
Petitioner Chavarria Sergio Antonio ("petitioner"), appearing pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition has been fully briefed. After a careful review of the record, and for the reasons set forth below, this Court DISMISSES the petition for lack of subject matter jurisdiction.
Petitioner, a native and citizen of Nicaragua, became a lawful permanent resident of the United States on November 16, 1989. After his conviction in 2007 for second degree burglary and forgery, on September 28, 2008, petitioner was placed in removal proceedings upon completion of his criminal sentence. Petitioner was then, on June 3, 2009, ordered removed from the United States to Nicaragua by an immigration judge ("IJ"). The removal order was appealed and the Board of Immigration Appeals ("BIA") affirmed the IJ's decision on September 11, 2009. Petitioner filed a petition for review before the Ninth Circuit and requested a stay of removal which resulted in an automatic stay. The IJ, on November 25, 2009, denied petitioner's request to be released on bond.
While his petition for review before the Ninth Circuit was pending, petitioner sought to reopen his case before the BIA but the BIA denied that motion on March 11, 2010. Petitioner subsequently filed a new petition for review before the Ninth Circuit. Petitioner also filed various motions before the BIA seeking to reopen his proceedings, all were summarily denied.
The instant petition was filed on October 22, 2011. On February 12, 2012, respondent informed petitioner of his "potential administrative right to request a new bond hearing" pursuant to Casas Castrillon v. DHS , 535 F.3d 942, 949 (9th Cir. 2008) and 8 C.F.R. § 1003, 19(e), explaining the procedures for seeking such relief. Petitioner's last petition before the Ninth Circuit was remanded to the BIA on March 30, 2012. Thereafter, respondent filed a return to the petition and petitioner filed a traverse. Nothing further has been filed in this case.
The instant petition seeks petitioner's release from custody on bond pending completion of removal proceedings on the grounds that he is being held in violation of his constitutional right to due process. See Doc. # 1 at 6. Respondent contends that, because petitioner has already been afforded a Casas Castrillon custody hearing and has been informed of this right to seek a new hearing pursuant to 8 C.F.R. § 1003.19, there is no case or controversy for this Court to review. Doc. # 8 at 3 (citing Casas Castrillon , 535 F.3d at 949 (once administrative proceedings before the IJ and the BIA are completed and the alien respondent has petitioned for review and obtained a stay of removal before the circuit court, detention authority shifts from 8 U.S.C. § 1226(c) (mandatory detention) to 8 U.S.C. § 1226(c) (IJ jurisdiction to conduct custody review)); Spencer v. Kemna , 523 U.S. 1, 7 (1998)(plaintiff must have suffered, or be threatened with, an actual injury to satisfy the injury requirement for subject matter jurisdiction)).
Petitioner does not address this issue in his traverse but, instead, focuses on the merits of his claim that he is being held in violation of his constitutional right to due process. See Doc. # 10 at 2-9. This Court, after a careful consideration of the record, and based on the authority cited by respondent, finds it lacks subject matter jurisdiction to review plaintiff's claim because petitioner has received all the relief he is due under controlling law and, thus, has failed to demonstrate he has suffered or, will suffer, an injury. See Spencer , 523 U.S. at 7. Therefore, this Court DISMISSES the instant petition for lack of subject matter jurisdiction.
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the instant petition filed pursuant to 28 U.S.C. § 2241 is DISMISSED for lack of subject matter jurisdiction.