United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
GRANTED ORDER DIRECTING THE CLERK OF COURT TO SERVE DOCUMENTS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
is detained by the United States Department of Homeland
Security and is proceeding with a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241.
Detention and Bond Hearing
alleges that she has been in DHS custody since October 2015.
(Doc. 1, p. 4) It appears that Petitioner is a citizen of
Mexico who last entered the United States in October 2015.
Petitioner appears to allege that she is subject to a final
order of removal that is presently on appeal to the Ninth
to 28 U.S.C. § 2241, relief by way of a writ of habeas
corpus extends "to a Department of Homeland Security
detainee who is ‘in custody in violation of the
Constitution or laws or treaties of the United States.'
28 U.S.C. § 2241(c)(3)." Rianto v. Holder,
No. CIV 11-00137 PHX FJM (MEA), 2011 WL 3489623, at *2
(D.Ariz. May 25, 2011). See also Maleng v. Cook, 490
U.S. 488, 490 (1989). This Court has subject matter
jurisdiction over the instant petition pursuant to §
2241 because Petitioner is in custody under the authority of
the United States and claims that her mandatory detention
without an individualized bond hearing is not statutorily
authorized and that she is being detained in violation of her
federal right to due process. Despite the dwindling
jurisdiction of the federal district courts in immigration
matters, the Supreme Court has explicitly recognized the
continued jurisdiction of the courts where, as here,
continued detention without due process raises constitutional
concerns. Demore v. Kim, 538 U.S. 510, 517 (2003).
In Demore, the Supreme Court held that 8 U.S.C.
§ 1226(e) contains no explicit provision barring habeas
review under § 1226(c), and that "its clear text
does not bar respondent's constitutional challenge to the
legislation authorizing his detention without bail."
Id. Petitioner seeks relief in the form of either
release upon an order of supervision or bail of up to $1,
500, both of which are expressly provided for in 8 U.S.C.
§ 1226(a)(2)(A) and (B). Hence, the Court will assume,
for screening purposes, that Petitioner is proceeding under
is proper in the Eastern District of California under 28
U.S.C. § 1391(e) because respondents are officers or
employees of the United States or an agency thereof acting in
their official capacity or under color of legal authority,
and Petitioner resides in this district, specifically in the
Mesa Verde Detention Facility, Bakersfield, California.
Petitioner may be entitled to relief if the claimed
violations are proved, Respondent is order to show cause why
the Petition should not be granted. Rule 4, Rules Governing
Section 2254 Cases; see Rule 1(b), Rule 11, Rules
Governing Section 2254 Cases; Fed.R.Civ.P. 81(a)(2).
Respondent SHALL include a copy of Petitioner's Alien
File and any and all other documentation relevant to the
determination of the issues raised in the petition. Rule 5 of
the Rules Governing Section 2254 Cases. In the event the
Petitioner is released from DHS custody during the pendency
of this Petition, the parties SHALL notify the Court by
filing a motion to dismiss the petition or other proper
pleading. Should the parties fail to notify the Court that
Petitioner has been released the parties may be subject to
sanctions pursuant to the inherent power of the Court to
issue sanctions in appropriate cases. See Local Rule
Appointment of Counsel
with the filing of the petition, Petitioner has requested the
appointment of counsel. There currently exists no absolute
right to appointment of counsel in habeas proceedings.
See e.g., Anderson v. Heinze, 258 F.2d 479,
481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d
773, 774 (8th Cir. 1984). However, Title 18 U.S.C. §
3006A(a)(2)(B) authorizes the appointment of counsel at any
stage of the case "if the interests of justice so
require." See Rule 8(c), Rules Governing
Section 2254 Cases. In the present case, the Court does not
find that the interests of justice require the appointment of
counsel at the present time and, hence, Petitioner's
motion is DENIED.
Stay of Removal Proceedings
has also requested a stay of removal "pending review by
this court." (Doc. 1, p. 4) As mentioned earlier, this
Court has no jurisdiction over the removal proceedings, and,
in any event, the matter is presently under review by the
Ninth Circuit, whose decisions are binding on this Court.
Moreover, whether Petitioner's final order of removal is
eventually set aside by the Ninth Circuit is independent of
whether Petitioner's continued detention without a bond
hearing is lawful. Presumably, the purpose of any stay of
removal would be to permit the resolution of the issues in
the instant petition. However, Ninth Circuit reversal of the
final order of removal would necessitate Petitioner's
release, while affirmance of the final order of removal would
legally alter Petitioner's status vis-à-vis her
ongoing detention, thus making any stay of removal
inappropriate. Accordingly, the Court DENIES Petitioner's
motion for a stay of removal at this time. Thus, the Court
1. Within 45 days, Respondent SHALL show cause why the
petition should not be granted. Petitioner may file a
traverse within 10 days thereafter;
2. The Clerk of the Court is DIRECTED to serve a copy of the
petition for writ of habeas corpus on the ...