United States District Court, S.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 1)
GONZALO P. CURIEL, District Judge.
Petitioner Elijah Samuel Ibanga ("Petitioner"), proceeding with counsel and in forma pauperis, is currently in the custody of the Department of Homeland Security ("DHS") pursuant to 8 U.S.C. § 1226(c) ("Section 1226(c)" or "§ 1226(c)"). (ECF No. 8, Ex. D, at 30.) On July 22, 2013, Petitioner filed in the United States Court of Appeals for the Ninth Circuit a petition for review of an order entered by the Board of Immigration Appeals ("BIA") on June 21, 2013, reinstating Petitioner's removal proceedings for a second time. (ECF No. 1 at 1.) The Ninth Circuit construed the petition as an original petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 ("Petition"), and transferred the Petition to this Court. (ECF No. 1 at 4.) Eric H. Holder ("Respondent") filed a return, asserting the petition should be dismissed. (ECF No 8 at 2.) Petitioner filed a traverse. (ECF No. 10.) After a thorough review of the issues and the documents presented, and for the reasons set forth below, the Court DENIES the petition for writ of habeas corpus.
I. Procedural History
The facts underlying the Petition are largely undisputed. Petitioner, a native and citizen of Nigeria, was admitted to the United States as a lawful permanent resident on October 22, 1980. (ECF No. 8, Ex. A at 17.) On December 4, 1992, Petitioner was convicted of violating California Penal Code ("CPC") § 288(b) for Forcible Lewd Acts on a Child under 14 and CPC § 288.5(a) for Continuous Sexual Abuse of a Child and sentenced to twenty-four years in prison. (ECF No. 8, Ex. B at 18.) On January 13, 2009, DHS served Petitioner with a Notice to Appear ("NTA") and transferred Petitioner from a state psychiatric hospital to the custody of DHS. (ECF No. 8 at 2.) DHS commenced removal proceedings against Petitioner as an aggravated felon. (ECF No. 8, Ex. D at 28.) On September 9, 2010, an immigration judge ("IJ") terminated Petitioner's removal proceedings, finding DHS had not served Petitioner with the NTA in accordance with DHS regulations regarding service of process on individuals with mental competency issues. (ECF No. 8 at 2.) DHS appealed the IJ's decision, and on March 7, 2011, the BIA affirmed the IJ's decision and dismissed the appeal. (ECF No. 8 at 2.)
On March 11, 2011, DHS re-served Petitioner with the NTA. (ECF No. 10 at 3.) On December 7, 2011, the IJ again terminated removal proceedings, with prejudice, after finding the DHS again failed to properly serve the NTA on Petitioner as someone with mental competency issues. The IJ specifically found Petitioner was "not capable of pleading to charges" and "incompetent mentally." (ECF No. 8-1 at 29.) DHS appealed to the BIA. (ECF No. 8 at 3.)
On June 21, 2013, the BIA vacated the IJ's December 7, 2011 decision, reinstated removal proceedings, and remanded the case to the IJ. (ECF No. 8 at 3.) On July 22, 2013, Petitioner filed his petition in the Ninth Circuit for review of the BIA's June 21, 2013 decision. (ECF No. 1.)
On August 27, 2013, the IJ administratively closed Petitioner's removal proceedings per the petition for review before the Ninth Circuit. (ECF No. 8, Ex. K.) DHS appealed the IJ's order to the BIA and that appeal remains pending. (ECF No. 8 at 3.) On October 21, 2013, the Ninth Circuit found it did not have jurisdiction to review the BIA's June 21, 2013 order because it was not a final order of removal. (ECF No. 1 at 4.) The Ninth Circuit construed Petitioner's argument that failure to review the interlocutory BIA order may implicate the Suspension Clause as an original petition for habeas corpus and transferred it to this Court. (ECF No. 1 at 4.)
II. Franco-Gonzalez Class Action
In 2013, Petitioner was named a member of the Franco-Gonzalez v. Holder class action. (ECF No. 10 at 3.) There, plaintiffs, representing a class of mentally incompetent individuals in DHS custody without counsel, claimed the right to appointed counsel, the right to release under the Immigration and Nationality Act, and the right to a detention hearing. Franco-Gonzalez v. Holder, No. CV 10-02211, 2013 WL 3674492, at *2 (C.D. Cal Apr. 23, 2013). On April 23, 2013, the court overseeing the class action ordered that (1) plaintiffs were entitled to appointment of a "qualified representative" to assist them in their removal and detention proceedings, and (2) all class members be afforded a bond hearing before an IJ after 180 days in detention, at which the government must justify further detention by proving the alien is a flight risk or danger to the community. (ECF No. 8, Ex. H, at 51, 56.) As a result, the Executive Office for Immigration Review appointed Petitioner a "qualified representative, " (ECF No. 10 at 4), and on May 21, 2013, petitioner was afforded an IJ bond hearing, at which the IJ denied bond after finding Petitioner posed too great a danger to the community. (ECF No. 8 at 3.) Petitioner appealed the custody decision to the BIA on the basis that he had demonstrated good cause for a continuance of his bond hearing. (ECF No. 8 at 3.)
On November 7, 2013, the BIA sustained Petitioner's appeal of his bond decision and remanded the matter to the IJ for Petitioner to "be given a further opportunity to present any evidence in support of his release on bond." (ECF No. 8 at 3.) On January 30, 2014, the IJ again found that Petitioner was a danger to the community and denied bond. (ECF No. 12 at 3.)
On February 4, 2014, an IJ held a master calendar hearing in Petitioner's removal proceedings, which was continued to March 12, 2014 upon Petitioner's attorney's request. (ECF No. 12 at 1.)
Respondent contends Petitioner seeks review of an interlocutory order of the Board of Immigration Appeals ("BIA") reinstating his removal proceedings and remanding the matter to the immigration judge, and under the REAL ID Act, this Court lacks jurisdiction to review challenges to ...