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Maling v. Johnson

United States District Court, E.D. California

May 4, 2017

EZRA DAVE GIPAN MALING, Petitioner,
v.
JEH CHARLES JOHNSON, et al., Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner, who is proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.[1] He has been in immigration custody pursuant to 8 U.S.C. § 1226(a) since February 6, 2015, and contends that his continued detention has become indefinite.[2] Accordingly, he claims that his detention is not authorized by statute. He seeks federal habeas relief on the following grounds: (1) his continued detention exceeds the government's statutory authority under 8 U.S.C. § 1231(a); (2) his indefinite detention violates his substantive and procedural due process rights under the Fifth Amendment's due process clause; and (3) that his continued detention is punitive in nature and, therefore, amounts to punishment without due process. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.

         I. Motion to Amend the Petition

         Several months after the filing of his traverse (ECF No. 14)[3] petitioner filed a Motion to Amend the Petition (ECF No. 17). The motion references case law and statutory authorities which petitioner, without any appreciable analysis, offers as support for the arguments raised in his traverse. ECF No. 17 at 2-6. Attached to his motion are various documents including: (1) additional news articles describing killings in the Philippines resulting from President Rodrigo Duterte's war on drugs; (2) a letter from petitioner to the Department of Homeland Security, Office of the Inspector General, complaining about an agent's interview behavior; (3) various letters attesting to petitioner's good character and work ethic; and (4) a copy of his previously filed traverse. Id. at 9-61. Lastly, the motion adds an “additional prayer for relief” wherein petitioner asks that this court:

[O]rder Respondents to release Petitioner from custody immediately under his own recognizance without conditions, issue a writ of habeas corpus to have petitioner brought before it to the end that he may be discharged from his unconstitutional confinement and restraint, release on reasonable and affordable bond amounting close to one thousand five hundred dollars ($1, 500.00) OR grant such other relief as may be appropriate and to dispose of the matter as law and justice require.

Id. at 7 (emphasis added). Petitioner's original request sought release from custody “under reasonable conditions of supervision.” ECF No. 1 at 5.

         The motion to amend is granted and petitioner will be allowed to substitute his new prayer for relief for the one contained in his original petition. The court will also consider, to the extent they are relevant, the authorities and exhibits contained in his motion to amend.

         II. Motion for Injunction

         On March 7, 2017, petitioner filed a motion for injunction.[4] ECF No. 20. The court construes this as a motion for preliminary injunction, insofar as the need for any injunction would be mooted if the immediate petition was granted and he was released from custody. In his motion, petitioner argues that his current detention in Alabama is interfering with his ability to communicate with the attorneys who are representing him before the Ninth Circuit. Id. at 2-4. He asks this court to issue an injunction requiring the government to transfer him back to a detention facility in California. Id. at 1.

         The attorneys with whom petitioner is trying to communicate are representing him in a separate proceeding before the Ninth Circuit, which is considering a motion to stay his removal; they are not representing him in this action. It is well settled that a claim for injunctive relief must relate to the underlying subject matter of the action in which it is filed. See e.g., Little v. Jones, 607 F.3d 1245, 1250-51 (10th Cir. 2010); Colvin v. Caruso, 605 F.3d 282, 299-300 (6th Cir. 2010); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997). Additionally, “[t]he purpose of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits.” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1024 (9th Cir. 2016). Granting this motion would have no bearing on the status of the current case and, accordingly, it must be denied. Further, petitioner has not demonstrated a likelihood of success on the merits. To the contrary, as discussed below, his petition for habeas relief must be denied.

          III. Background

         A. Removal Order and Pending Ninth Circuit Review

         Petitioner is a native of the Philippines and was admitted to the United States on a B-2 visa on March 20, 2003. ECF No. 13-1 ¶ 3. His non-immigrant status changed to that of an R-1 religious worker in June of 2004 and, in June of 2009, he was granted lawful permanent resident status. Id. ¶¶ 4-5. As noted, removal proceedings were initiated in February, 2015, after he was charged with attempting to procure a benefit under the Immigration and Nationality Act via fraud or willful misrepresentation of a material fact. Id. ¶ 6.

         On September 11, 2015, an immigration judge found petitioner removable and ordered him removed to the Philippines. Id. ¶ 7; ECF No. 1 at 2. That decision was affirmed by the Board of Immigration Appeals on February 26, 2016 and, on March 7, 2016, petitioner filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit. ECF No. 13-1 ¶¶ 8-9. Petitioner also filed a motion to stay removal and, as of May 25, 2016, the Ninth Circuit has temporarily stayed his removal pending its consideration of that motion. Ninth Circuit Pet. No. 16-70634 at Dkt. No. 26.

         B. ...


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