United States District Court, S.D. California
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE
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).
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.
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.
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).
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).
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.
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).
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).
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
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).
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.
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 ...