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Hernandez v. Lynch

United States District Court, S.D. California

June 20, 2016

PEDRO RIVAS HERNANDEZ, Petitioner,
v.
LORETTA E. LYNCH, U.S. Attorney General; et al., Respondents.

          ORDER

          WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE

         The matters before the Court are the Petition for Writ of Habeas Corpus (ECF No. 1) and the Amended Petition for Writ of Habeas Corpus (ECF No. 32) Corpus filed by Petitioner Pedro Rivas Hernandez ("Petitioner") pursuant to 28 U.S.C. § 2241. (ECF No. 32).

         I. Background

         Petitioner is a Mexican national who entered the United States in 1985. (ECF No. 1). Petitioner's wife is a lawful permanent resident and they have two children who are citizens of the United States. Id. In 1988, Petitioner applied as a Special Agricultural Worker under the Immigration Reform and Control Act of 1986. Id. at 12. His application was denied on September 12, 2002. Id.

         In 2007, the U.S. Immigration Customs Enforcement ("ICE") agency arrested Petitioner. Id. at 3. On April 24, 2007, Petitioner was placed in removal proceedings. (ECF No. 4 at 2). On May 16, 2007, an Immigration Judge ("IJ") ordered Petitioner removed. Id. Petitioner was removed on May 23, 2007. Id.

         Petitioner unlawfully re-entered the United States and was removed four times under a reinstatement of the May 16, 2007 removal order. (ECF No. 4-1 at 10). In November 2013, Petitioner re-entered the United States and, on November 13, 2013, Petitioner was taken into custody at Imperial County Jail. (ECF No. 1 at 13). On November 15, 2013, Petitioner filed an Emergency Stay of Deportation with the Ninth Circuit, case no. 13-73976, obtaining an automatic temporary stay of removal. (ECF No. 4 at 2; ECF No. 4-1 at 2-5).

         On January 3, 2014, ICE interviewed Petitioner. (ECF No. 1 at 13). ICE processed Petitioner for reinstatement of removal. Id. at 25. On April 14, 2014, Petitioner was interviewed by an asylum officer who found a positive reasonable fear and issued a Form I-863 to place Petitioner in withholding-only proceedings before an IJ. Id. at 13; ECF No.5-3 at 2 (Form 1-863).

         In July 2014, Petitioner applied for a bond redetermination hearing pursuant to Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). (ECF No. 1 at 15). On September 19, 2014, after continuances, an IJ held the bond redetermination hearing "under the rule in Rodriguez." (ECF No. 4-1 at 8). On September 22, 2014, the Ninth Circuit dismissed Petitioner's appeal, case no. 13-73976, for lack of subject matter jurisdiction. Id. at 5. On September 22, 2014, an IJ denied Petitioner's application for asylum relief. Id. at 6.

         On October 29, 2014, an IJ issued a written decision denying Petitioner's request for release on bond. (ECF No. 4-1). The IJ found that the Department of Homeland Security had established, by clear and convincing evidence, that "the respondent [is] both a danger and a flight risk." Id. at 8. On January 23, 2015, the BIA dismissed Petitioner's appeal of the IJ's decision to deny bond. (ECF No 4 at 3). The BIA stated, "Because we affirm the Immigration Judge on the issue of flight risk, we need not address his conclusion that the respondent is also a danger to the community." (ECF No. 4-1 at 19).

         On March 4, 2015, the BIA upheld the IJ's decision to deny Petitioner's application for asylum relief and dismissed Petitioner's appeal. Id. at 26. On March 13, 2015, the temporary stay in case no. 13-73976 terminated. Id. at 5. On March 30, 2015, Petitioner appealed the denial of his asylum relief to the Ninth Circuit, case no. 15-70966, obtaining an automatic stay of removal. (Case No. 15-70966, ECF No. 1).

         On August 3, 2015, Petitioner filed the Petition for Writ of Habeas Corpus in this Court pursuant to 28 U.S.C. § 2241. (ECF No. 1). Petitioner contended that he is entitled to a writ of habeas corpus because he had been unreasonably detained pending the outcome of his challenges to his removal order. Id. at 26. Petitioner contended that Respondents violated his due process rights by failing to provide him a bond hearing pursuant to Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008). Id. at 25. Petitioner also contended that his Rodriguez bond hearing was procedurally deficient and violated his due process rights. (ECF No. 5-1 at 2). Petitioner requested that the Court order Respondents to release him from custody or, alternatively, direct the Respondents to provide a Casas bond hearing with a different IJ than the one that presided at the 2014 bond hearing. (ECF No. 5 at 6). On September 8, 2015, Respondents filed the Return to Petition for Writ of Habeas Corpus. (ECF No. 4).

         On September 16, 2015, the Ninth Circuit filed an order referring Petitioner's case no. 15-70966 to the "circuit mediator for determination of whether petition may be eligible for an I-601A waiver and to explore possible settlement options." (ECF No. 5-5 at 2).[1]

         On October 15, 2015, this Court held a hearing. (ECF No. 11). Counsel for Respondents stated, "A Casas hearing is really no different than a Rodriguez hearing, as far as the burden and the standard, but if [Petitioner] would request one, a Casas hearing, because he now has a petition for review pending, he would get one, so right now it doesn't have to be ordered by the Court." (ECF No. 12 at 9-10). After the hearing, the Court stayed Petitioner's writ of habeas corpus and ordered the parties to submit a report regarding the status of Petitioner's request for a new bond hearing. (ECF No. 13).

         On November 20, 2015, Petitioner received a second bond hearing before an IJ. (ECF No. 20-1 at 2). The IJ denied a change in Petition's custody status finding that petitioner was a danger to the community and posed a flight risk. Id; ECF No. 29-1 at 6-19. On December 21, 2015, Petitioner appealed to the BIA. On April 15, 2016, the ...


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