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Gutierrez v. Holder

United States District Court, N.D. California

January 2, 2014

MARCOS ANTONIO QUIROZ GUTIERREZ, Plaintiff,
v.
ERIC HOLDER, et al., Defendants

For Marcos Antonio Quiroz Gutierrez, Petitioner: Lamar Peckham, LEAD ATTORNEY, Law Office of Lamar Peckham, Santa Rosa, CA.

For 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 & Customs Enforcement, Respondents: Raven Marie Norris, LEAD ATTORNEY, United States Attorney's Office, Civil Division, San Francisco, ca.

OPINION

Page 1036

JON S. TIGAR, United States District Judge.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is the habeas corpus petition filed by Marcos Antonio Quiroz Gutierrez pursuant to 28 U.S.C. § 2241 challenging his detention without bond under § 236(c) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1226(c), the mandatory detention provision. Pet., ECF No. 1. The Court will deny the petition.

I. BACKGROUND

Petitioner is a native and citizen of Mexico. He was convicted of misdemeanor grand theft in violation of California Penal Code § 487(a) and of obstruction of a public officer in violation of § 148(a)(1) on March 6, 2008. Pet., Ex. B. He was sentenced to twenty-four months of probation, ninety days in either jail or a work release program, restitution in the amount of one hundred dollars, a fine of twenty dollars, and community service. Petitioner declined the work release program and was ordered to serve ninety days of electronic confinement in June 2008. During Petitioner's electronic confinement, U.S. Immigration and Customs Enforcement (" ICE" ) initiated removal proceedings. Petitioner was ordered removed by an Immigration Judge pursuant to stipulation on September 10, 2008. ECF No. 6-1, Exs. 9-10.

At some time after his deportation, Petitioner illegally re-entered the United States. He was arrested on February 5, 2013, and posted bond on February 6, 2013, in the amount of $1,000. On June 24, 2013, Petitioner pled no contest on one count of petty theft in violation of California Penal Code § 484(a) and was sentenced to twenty-four months of probation, forty-five days in jail (with two days' credit for time served) or forty-three days of work release, restitution in the amount of one hundred forty dollars, and a fine of seventy dollars. Pet., Ex. C. Petitioner was ordered to report for work release by July 9, 2013. Id.

There is no evidence in the record establishing whether Petitioner submitted to electronic detention, for how long, or the day on which the detention period ended. However, Respondents assert without contradiction that Petitioner served a forty-three day work release detention, the last day of which was August 19, 2013. ECF No. 6 at 2:24-25 (" [ICE] attempted to apprehend Petitioner on August 20, 2013, a day after completion of his work release sentence." ).

The ICE San Francisco Fugitive Operation Team unsuccessfully attempted to arrest Petitioner on August 20 and September

Page 1037

18, 2013, before apprehending him at his residence in Santa Rosa, California on October 24, 2013. Matson Decl., ECF No. 6-3 ¶ ¶ 7-9; ECF No. 6-1, Ex. 11. The declaration submitted by the arresting officer states: " Due to the manpower, caseload, and geological coverage, San Francisco Operation Team cannot focus on one area or one specific case. Further, due to Sonoma County's distance, an attempt to arrest could only be made once a month." Matson Decl., ¶ 10. The record is otherwise devoid of explanation for ICE's delay in initiating removal proceedings during the six-month period between February 2013, when Petitioner was arrested, and August 2013, when ICE first attempted to arrest him. Nor is there further explanation for ICE's two-month delay in taking Petitioner into custody after he completed his electronic detention.

Although Officer Matson's declaration indicates that he attempted to arrest Petitioner in August and September of 2013, ICE did not initiate removal proceedings until October 24, 2013, when Petitioner was arrested. On that date, ICE filed a notice to appear before the immigration court in San Francisco and served Petitioner with a warrant for his arrest. ECF No. 6-1, Exs. 12-13. On the same day, ICE determined ...


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