United States District Court, N.D. California
ORDER RE SECTION 2241 PETITION
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
Section 2241 action, petitioner seeks a bond hearing.
Respondent opposes. For the reasons herein, petitioner's
motion is Granted.
Jose Gutierrez Pulido is a Mexican citizen being detained by
Immigration and Customs Enforcement at the West County
Detention Facility in Richmond, California (Dkt. No. 1 at
¶¶ 1, 4).
September 2016, ICE arrested Pulido for illegally re-entering
the United States after a previous removal. Pulido had been
removed from the United States on four prior occasions for
illegal entry, once in 2004, and three times in 2008 (Dkt.
No. 9-1 ¶¶ 3-4).
his 2016 arrest, ICE reinstated his removal order and took
Pulido into custody. While in custody, Pulido claimed that he
feared for his life should he be returned to Mexico, and
sought to prevent his removal on that ground. Based on his
claim, ICE referred Pulido to an asylum pre-screening
officer, to conduct a “reasonable fear” interview
(Gallant Decl. ¶¶ 5, 7, 8; Exhs. B, C).
Asylum Officer found that Pulido had a reasonable fear of
persecution, and, pursuant to Section 208.31 of Title 8 of
the Code of Federal Regulations referred Pulido's case to
an immigration judge to conduct
“withholding-only” proceedings through which
Pulido could apply for withholding of removal and relief
under the Convention Against Torture. Based upon a review of
his file - which revealed a significant criminal history, and
four previous illegal entries into the United States - ICE
determined that Pulido would continue to be detained while he
was awaiting a hearing on his application for withholding of
removal (id. ¶¶ 9-10, 16 Exhs. C, F).
seeking numerous continuances, Pulido eventually appeared
before an immigration judge on May 23, 2017, for a review of
his withholding of removal application. On June 7, 2017, the
immigration judge denied Pulido's application for
withholding of removal (id. ¶¶ 11-14;
May 23 hearing, Pulido also moved for a bond hearing, which
motion the immigration judge denied, finding that he lacked
jurisdiction to conduct a bond hearing (ibid.).
timely appealed both decisions, and those appeals remain
pending before the Board of Immigration Appeals. He remains
in custody, and to date has not had a bond hearing
(id. ¶ 15 Exh. I).
now moves for a writ of habeas corpus pursuant to Section
2241, challenging his denial of a bond hearing. He claims
that his prolonged detention without a bond hearing violates
the Immigration and Nationality Act, and the Fifth
Amendment's due process and equal protection clauses, and
seeks an order granting a bond hearing before another
immigration judge or a district or magistrate judge in the
United States District Court. Respondents oppose Pulido's
motion arguing that he has failed to exhaust his
administrative remedies so the issue is not ripe, and that
even if he had met the exhaustion requirement, he is not
entitled to a bond hearing under the applicable law.