Hernandez v. DHS/ICE

          FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION OBJECTIONS DUE: 30 DAYS (DOC. 39)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. Procedural and Factual Background

         Petitioner, 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.

         Following 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.^[1] 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.

         Throughout 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, 000.

         II. No Jurisdiction to Review Amount of Bond

         This Court has no statutory authority to review the amount of Petitioner’s bond. Prieto-Romero v. Clark, 534 F.3d 1053, 1067 (9^th 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.

         Under the statute, a district court has no authority to review the reasonableness of a bond amount set by an immigration judge. Id.

         III. Duration of Petitioner’s Detention

         Under 8 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.

         Zadvydas, 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 ...