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Ramirez v. Sessions

United States District Court, S.D. California

July 24, 2017

AARON RAMIREZ, Petitioner,
v.
SESSIONS, et al., Respondents.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; [Doc. No. 1] DENYING AS MOOT MOTION FOR PRELIMINARY INJUNCTION [Doc. No. 2]

          HON. MICHAEL M. ANELLO United States District Judge

         Petitioner Aaron Ramirez has filed a petition for writ of habeas corpus (“petition”) pursuant to Title 28, United States Code, section 2241, seeking his release from the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”).[1] See Doc. No. 1. In addition, Petitioner moves the Court for an order preliminarily enjoining his detention by ICE, pending a final resolution of his petition. See Doc. No. 2. The government filed a return to the petition, to which Petitioner replied. See Doc. Nos. 9, 11. For the reasons set forth below, the Court DENIES the petition and DENIES AS MOOT Petitioner's motion for injunctive relief.[2]

         Background

         On March 6, 2017, Petitioner, a Mexican National and Legal Permanent Resident of the United States, applied for permission to enter into the United States from Mexico through the Otay Mesa, California, Port of Entry. Petitioner was driving a vehicle bearing California license plates. A narcotics detection dog alerted to the rear undercarriage area of the vehicle. During the secondary inspection of the vehicle, officers discovered twenty-five packages, which field-tested positive for cocaine and methamphetamine. During a post-arrest interview, Petitioner admitted knowledge of the drugs within the vehicle, and stated he was to be paid $3, 000 to deliver the drugs to San Diego.

         On March 15, 2017, ICE issued a Notice to Appear charging Petitioner as being removable due to “reason to believe [he] is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act), ” in violation of Section 212(a)(2)(C)(i) of the Immigration and Nationality Act. See Pet. Ex. A. In support of the charge, ICE relied on Petitioner's March 6, 2017 arrest. Petitioner has been detained in ICE custody since his release on bond in the underlying criminal proceedings.

         Discussion

          Petitioner argues that ICE lacks the statutory authority to detain him because he was paroled into the United States under 8 U.S.C. § 1182(d)(5)(A). This section of the Immigration and Nationality Act (“INA”) provides, in pertinent part:

The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

8 U.S.C. 1182(d)(5)(A). The statute permits the Attorney General to parole[3] aliens into the United States for, among other purposes and as relevant here, criminal prosecution. See Matter of Badalamenti, 19 I. & N. Dec. 623, 626 (1988) (“It is clear from the legislative history of this provision that Congress intended to empower the Attorney General to parole an alien for the purpose of prosecution.”).

         By the statute's own terms, parole under Section 1182(d)(5)(A) is temporary, and subject to revocation or termination. Pursuant to 8 C.F.R. § 212.5(e)(1), the applicable implementing regulation, the parole of an alien “shall be automatically terminated without written notice . . . at the expiration of the time for which parole was authorized, ” when parole was initially granted. In this case, the expiration date was recorded on the I-94 Arrival/Departure Record created at the time of Petitioner's apprehension at the border. According to the I-94 card, Petitioner was paroled into the United States “until April 6, 2017.” See Pet. Ex. F. Petitioner's parole would have automatically terminated on April 6, 2017. However, Petitioner's parole terminated prior to that date.

         As noted above, ICE served Petitioner with a Notice to Appear on March 15, 2017, charging him as being removable due to “reason to believe [he] is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act).” See Pet. Ex. A. “When a charging document is served on the alien, the charging document will constitute written notice of termination of parole, unless otherwise specified.” 8 C.F.R. § 212.5(e)(2)(i). Therefore, Petitioner's parole terminated on March 15, 2017, when he was served with the Notice to Appear. Once his parole terminated, Petitioner had to be “returned to the custody from which he was paroled.” 8 U.S.C. § 1182(d)(5)(A).

         In sum, although Petitioner was initially paroled into the United States under Section 1182(d)(5)(A), it appears his parole was temporary and set to automatically terminate on April 6, 2017. On March 15, 2017, the Attorney General charged Petitioner and initiated removal proceedings, thereby terminating his parole. It was within the Attorney General's discretion to decide that the purpose of Petitioner's parole had been served, see 8 U.S.C. § 1182(d)(5)(A), a decision which Petitioner challenges, but this Court lacks jurisdiction to review. Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010) (noting that “judicial review of a discretionary determination is . . . expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii).”). When his parole terminated, Petitioner was “restored to the status that he . . . had at the time of parole, ” 8 C.F.R. § 212.5(e)(2)(i), according ICE the authority to detain Petitioner as “an alien seeking admission” who “is not clearly and beyond a doubt entitled to be admitted” into the United States. 8 U.S.C. § 1225(b)(2)(A).

         Moreover, Petitioner is not being detained in violation of his Fifth Amendment rights. Petitioner argues that his “detention in ICE custody is guaranteed to deprive him of either his Fifth Amendment right to avoid self-incrimination or his Fifth Amendment right to a meaningful and fair opportunity to apply for relief, neither of which is constitutionally permissible.” Pet. at 10. Petitioner has not yet had to make the choice, and in any event, this Court is not the appropriate forum to adjudicate the issue. See 8 U.S.C. § 1252(a)(2)(D) (jurisdiction to review substantial constitutional claims or questions of law arising out of removal proceedings lies with the courts of appeal).

         Nor does Petitioner's detention run afoul of his right to procedural due process. Petitioner was paroled into the United States based on the pending criminal proceedings. He was provided with notice on the 1-94 card that his temporary parole would automatically expire, but he was served with a Notice to Appear prior to the expiration date. The Notice to Appear constituted notice that the Attorney General had exercised his discretion to initiate removal ...


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