United States District Court, S.D. California
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE
matter before the Court is the Petition for Writ of Habeas
Corpus (“Petition”) filed by Petitioner Cristobal
Ramos Quiroz pursuant to 28 U.S.C § 2241. (ECF No. 1).
is a native citizen of Mexico and has alleged that he is
currently in custody of the Department of Homeland Security
(“DHS”) at Otay Mesa Detention
Center. (Exhibit H, ECF No. 8-9 at 2; ECF No. 1).
Petitioner was granted lawful permanent resident status in
March 1988. (Exhibit B, ECF No. 8-3 at 2). On April 14, 1994,
Petitioner was convicted of corporal injury to a spouse under
California Penal Code section 273.5(A) and assault causing
great bodily injury with a deadly weapon under California
Penal Code section 245(a)(1). (Exhibit C, ECF No. 8-4 at 2).
The Immigration and Naturalization Services filed a notice to
appear initiating removal proceedings against Petitioner
pursuant to section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act due to an aggravated felony conviction.
(Exhibit D, ECF No. 8-5 at 2). Petitioner was removed to
Mexico on February 9, 1999. (Exhibit E, ECF No. 8-6).
was removed again on February 6, 2008 following a conviction
of possession of a controlled substance in violation of
California Health and Safety Code section 11377(a). (Exhibit
G, ECF No. 8-8; Exhibit F, ECF No. 8-7 at 2).
March 10, 2016, DHS issued a notice to appear which alleges
that Petitioner arrived at the San Ysidro port of entry on or
about January 31, 2016 and expressed a credible fear of
persecution or torture. (ECF No. 8-9 at 2). DHS charged him
as subject to removal as an arriving alien without any valid
entry document. Id. On August 25, 2016, an
Immigration Judge issued an order denying Petitioner's
application for asylum, ordering Petitioner's removal,
Petitioner's application for withholding or removal and
denying protection under the Convention Against Torture.
(Exhibit A, ECF No. 8-2 at 12).
August 1, 2016, an Immigration Judge denied Petitioner's
request for a change in custody status. (Exhibit J, ECF No.
8-11 at 2). The Board of Immigration Appeals affirmed the
custody determination decision on October 1, 2016.
Id. at 3. On October 24, 2016, Petitioner filed a
petition for review with the Ninth Circuit Court of Appeals.
Ramos Quiroz v. Sessions, No. 16-73407 (filed Oct.
January 6, 2017, Petitioner filed the Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1).
On January 13, 2017, the Court dismissed the Petition without
prejudice and with leave to amend for failure to satisfy the
filing fee requirement. (ECF No. 2). On January 31, 2017,
Petitioner filed a “Request for Fee Waiver” which
this Court construed as a motion to proceed in forma
pauperis. (ECF No. 4). On February 9, 2017, the Court granted
the application to proceed in forma pauperis and reopened the
case. (ECF No. 5).
February 9, 2017, the Court issued an Order to Show Cause why
the Petition should not be granted. (ECF No. 6). The Court
ordered that a return shall be filed by February 23, 2017 and
any traverse shall be filed by March 9, 2017. Id.
February 23, 2017, the Government filed a return. (ECF No.
8). The Government contends that this Court lacks
jurisdiction over this matter because Petitioner seeks review
of an order of removal and matters attendant to that order.
Id. at 6. The Government contends that Petitioner
may not pursue this claim before a district court by means of
a habeas petition but must present his claim to the circuit
court through a petition for review. Id. at 6-7. The
Government contends that the Petition should be denied
because DHS recently lodged new charges of inadmissibility
against Petitioner and Petitioner has failed to exhaust his
administrative remedies. Id. at 7.
record reflects that Petitioner has not filed a traverse.
OF THE COURT
federal court may grant a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 if a federal petitioner can
demonstrate that he “is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(a), (c)(3).
to 8 U.S.C. § 1252, habeas jurisdiction over removal
orders is vested solely with the courts of appeal.
See 8 U.S.C. § 1252(a)(5)
(“Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of Title 28, ... a
petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and
exclusive means for judicial review ...