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Gamino v. Holder

United States District Court, N.D. California, San Francisco Division

December 19, 2013

ROBERTO A. SANCHEZ GAMINO, Petitioner,
v.
ERIC HOLDER, Attorney General of the United States, RAND BEERS, Acting Secretary of Homeland Security, TIMOTHY AITKEN, Field Office Director, United States Bureau of Immigration and Customs Enforcement, Respondents

For Roberto A. Sanchez Gamino, Petitioner: Lamar Peckham, LEAD ATTORNEY, Law Office of Lamar Peckham, Santa Rosa, CA.

For Eric Holder, Attorney General of the United States, Timothy Aitken, Field Office Director, United States Bureau of Immigration and Customs Enforcement, Rand Beers, Acting Secretary of Homeland Security, Respondents: Abraham A. Simmons, LEAD ATTORNEY, U.S. Attorney's Office, San Francisco, CA.

OPINION

Page 1029

RICHARD SEEBORG, United States District Judge.

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

I. BACKGROUND

Petitioner Roberto Sanchez Gamino was 17 years old when he was admitted to the United States as a permanent resident in 1993. Since his arrival in this country, petitioner has been convicted twice for Domestic Violence in violation of California Penal Code Section 273.5(e), a crime for which he is subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(ii) [1] and § 1182(a)(2)(E)(i), along with various other convictions. He was last convicted on October 6, 2003, when he was admitted to probation for four years and sentenced to serve 180 days in county jail. More than nine years later, in August 2013, he was arrested by Immigration and Customs Enforcement (ICE) agents at his home. He remains in ICE custody in San Francisco and has petitioned this court for release or a bond hearing.

According to the government, Sanchez Gamino is subject to mandatory detention pursuant to § 1226(c) and therefore is not entitled to a bond hearing, in contrast to individuals detained pursuant to § 1226(a). The question of whether § 1226(c) applies when detention is effected some period after an individual's release from criminal custody has divided the federal courts. The Ninth Circuit has not yet addressed this issue. Consistent with the recent decision from this district in Espinoza v. Aitken, No. 13-512, 2013 WL 1087492 (N.D. Cal. Mar. 13, 2013), petitioner is entitled to relief in the form of a bond hearing.

Page 1030

Accordingly, the Petition for Writ of Habeas Corpus will be granted in part and denied in part for the reasons explained below.

II. BACKGROUND

Sanchez Gamino is a native and citizen of Mexico. ( See Pet. Ex. A (" Notice to Appear" ).) He first entered the United States as a lawful permanent resident at El Paso, Texas in March 1993. In May 1999, petitioner was convicted of domestic violence in violation of California Penal Code § 273.5(e). On October 6, 2003, petitioner again was convicted of domestic violence in violation of the same California statute and incarcerated. He was admitted to probation for four years in October 2003 for his most recent conviction, and sentenced to serve 180 days in county jail as a condition of probation. In December 2005, he was ordered to serve an additional 30 days in jail on a probation violation. It is not clear from the record when he was released from state custody, but there is no record here of any subsequent arrest or period of incarceration.

In August 2013--nine years after his most recent conviction and apparently seven years after his most recent period of incarceration--petitioner was arrested while at his home in Arbuckle, Coluso County, CA. ( See Pet. at ¶ ¶ 1, 4.) On the same day, ICE initiated removal proceedings and issued a Notice to Appear (" NTA" ) with the immigration court. (Pet. Ex. A.) The NTA charged him with removability pursuant to § 1182(a)(6)(A)(ii), as an alien convicted of two crimes involving moral turpitude, and § 1182(a)(2)(E)(i), as an alien who has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment. ( Id. ) ICE also issued a Notice of Custody Determination that stated that he was subject to mandatory custody without bond pursuant to § 1226(c). (Pet. Ex. D.) On November 12, 2013, petitioner filed the instant habeas petition. He is presently scheduled for an individual hearing on the NTA on January 6, 2014. (Pet. Ex. A.) Consistent with the provisions of § 1226(c), petitioner has not been afforded any bond hearing.

III. LEGAL STANDARD

This court may entertain a petition for writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). However, not all aspects of an alien's detention fall outside judicial review, even where such detention is the product of the " Attorney General's discretionary judgment." 8 U.S.C. § 1226(e). While " [n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole," id., this is not such a case. " Although [8 U.S.C.] § 1226(e) restricts jurisdiction in the federal courts in some respects, it does not limit habeas jurisdiction over constitutional claims or questions of law." Singh v. Holder,638 F.3d 1196, 1202 (9th Cir. 2011). Thus, " aliens may continue to bring collateral legal challenges to the Attorney General's detention authority ... through a petition for habeas corpus." Casas-Castrillon v. Dep't of ...


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