United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION OBJECTIONS
DUE: 30 DAYS (DOC. 39)
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Esteban Hernandez, who is detained by the Department of
Homeland Security (DHS), proceeds with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Claiming
that his detention has been prolonged, Petitioner seeks (1)
release and review of his continued detention and (2) release
or waiver of the bond requirement on which his release is
contingent. Respondents contend that the District Court lacks
jurisdiction to release Petitioner or to review the amount
set as his bond. Having reviewed the record as a whole and
applicable law, the undersigned recommends that the Court
dismiss the habeas petition for lack of jurisdiction.
Procedural and Factual Background
a native and citizen of Mexico, was a lawful permanent
resident of the United States. In Los Angeles County Superior
Court on April 6, 2001, Petitioner was convicted of assault
with a deadly weapon (Cal. Penal Code § 245(a)(1)).
Petitioner had been removed to Mexico three times prior to
the 2001 conviction.
removal proceedings, on January 6, 2015, an immigration judge
denied Petitioner’s application for withholding of
removal and protection under the Convention Against Torture.
Petitioner filed an unsuccessful administrative appeal,
followed by three separate petitions for review by the Ninth
Circuit Court of Appeals. Petitioner sought a stay of removal to
Mexico pending his appeals. The Ninth Circuit entered a
temporary stay of removal and took all pending motions under
submission, pending the outcome of a remand to the district
court to resolve Petitioner’s claim of United States
citizenship. Petitioner’s removal remains stayed under
the temporary order.
the Ninth Circuit proceedings, Petitioner has remained in ICE
custody. On February 24, 2014, an immigration judge granted
Petitioner’s motion for an order for bond and set the
bond amount at $18, 000. Petitioner moved for reconsideration
in 2016. The immigration judge found no material change of
circumstances and ordered that the bond amount remain at $18,
No Jurisdiction to Review Amount of Bond
Court has no statutory authority to review the amount of
Petitioner’s bond. Prieto-Romero v. Clark, 534
F.3d 1053, 1067 (9th Cir. 2008). In refusing to
reach the merits of Prieto-Romero’s claim that the
immigration judge had set an excessively high bond amount,
requiring him to remain in custody, the Ninth Circuit relied
on 8 U.S.C. § 1226(e), which provides:
The Attorney General’s discretionary judgment regarding
the application of this section shall not be subject to
review. No court may set aside any action or decision by the
Attorney General under this section regarding the detention
or release of any alien or the grant, revocation, or denial
of bond or parole.
Prieto-Romero, 534 F.3d at 1067.
the statute, a district court has no authority to review the
reasonableness of a bond amount set by an immigration judge.
Duration of Petitioner’s Detention
U.S.C. § 1226(a), the Attorney General’s authority
to detain an alien who has been ordered deported is limited
to “the period reasonably necessary to bring about the
alien’s removal from the United States.”
Zadvydas v. Davis, 533 U.S. 678, 699 (2001). The
statute does not authorize indefinite detention. Id.
Relying on this precedent, Petitioner seeks immediate release
from detention, contending “his detention has become
prolonged, ‘indefinite’ and potentially
permanent.” Doc. 1 at 1. Although Petitioner’s
detention is prolonged, it is neither indefinite or
permanent. As was the case with Prieto-Romero,
Petitioner’s lengthy detention can be distinguished
from that of the detainees considered in Zadvydas,
in that his release is foreseeable upon resolution of his
pending appeals. The Court may not order Petitioner’s
immediate release simply because his administrative and
judicial appeals have been protracted.
born of Lithuanian parents in a German displaced persons camp
following World War II, came to the United States with his
family as an eight-year-old child in the 1950s. 533 U.S. at
684. Following a long criminal career, he was ...