United States District Court, N.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE RE: DKT. NO. 1
PHYLLIS J. HAMILTON, UNITED STATES DISTRICT JUDGE
the court is petitioner Maria Valdovinos-Diaz's petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Dkt. 1. The matter is fully briefed and suitable for decision
without oral argument. Having read the parties' papers
and carefully considered their arguments and the relevant
legal authority, and good cause appearing, the court hereby
rules as follows.
Valdovinos-Diaz is a citizen and national of Mexico. Dkt. 1
¶ 4; Dkt. 11 (“Dutra Decl.”), Ex. A. She has
two children who are United States citizens and is married to
a lawful permanent United States resident. Dkt. 13 at 3.
Valdovinos-Diaz is not a U.S. citizen and is being held in
detention by the Immigration and Customs Enforcement division
of the Department of Homeland Security (“ICE”)
pursuant to 8 U.S.C. § 1231(a)(6). Dkt. 1 ¶ 13;
Dkt. 10 at 2. Petitioner has filed a petition for writ of
habeas corpus with this court, asserting three causes of
action: (1) violation of Immigration and Nationality Act and
Regulations; (2) violation of Fifth Amendment Due Process;
and (3) violation of the Equal Protection Clause. Dkt. 1.
Petitioner seeks an order requiring an Immigration Judge
(“IJ”) to hold a bond hearing and attorneys'
fees and costs. Dkt. 1 at 8.
2000, petitioner was subject to expedited removal under 8
U.S.C. § 1225(b)(1) for presenting fraudulent documents
in an attempt to gain entry to the United States. Dutra Decl.
¶ 3 & Ex. A. Petitioner subsequently re-entered the
United States and applied for relief before U.S. Citizenship
and Immigration Services (“USCIS”) based on her
marriage to her husband, but she did not disclose her prior
removal order and was arrested when she attended her USCIS
interview. Id. at ¶¶ 4-5; Dkt. 13 at 3. On
June 22, 2017, ICE arrested and detained petitioner to
reinstate her prior order of removal. Dutra Decl. ¶ 5
& Ex. B.
expressed fear of returning to her home country and had a
“positive” reasonable fear interview, so
petitioner was placed into withholding-only proceedings,
where her only available form of relief is an application for
withholding of removal. Dkt. 13 at 3. Petitioner was referred
to an immigration judge for withholding-only
proceedings. Dutra Decl. ¶ 6 & Ex. C.
point not specified in the record, petitioner requested a
bond hearing. On August 29, 2017, the IJ denied
petitioner's motion for a bond hearing, finding her not
eligible. Id. at ¶ 7 & Ex. D. Petitioner
did not appeal the IJ's decision. Id. at ¶
7. On December 29, 2017, the IJ issued an order notifying the
parties that he would hold a hearing to determine whether
petitioner was eligible for bond. Id. at ¶ 9.
On January 17, 2018-before the noticed IJ hearing-petitioner
filed the present petition for writ of habeas corpus with
this court. Dkt. 1. On January 23, 2018, the IJ denied
petitioner's motion for a bond hearing, citing
“lack of jurisdiction” and writing that she was
“not entitled to a Diouf hearing at this time.”
Id. at ¶ 10 & Ex. F (likely referring to
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011)).
Petitioner reserved appeal of that decision. Id.
Petitioner has not appealed the IJ's order denying a bond
hearing to the Board of Immigration Appeals
(“BIA”). Id. at ¶ 10.
petitioner had been challenging her removal order by
attempting to withhold removal. On September 29, 2017, the IJ
denied some of petitioner's requests, although the
supporting document provided to the court is redacted in
substance. Id. at ¶ 8 & Ex. E. Petitioner
appealed that decision-although not the decision regarding a
bond hearing-to the BIA. On March 14, 2018, the BIA dismissed
her appeal. Id. at ¶ 8. She filed an appeal
with the Ninth Circuit Court of Appeals (case no. 18-70811,
Valdovinos-Diaz v. Sessions). The removal was
automatically stayed, and the Ninth Circuit case is currently
28 U.S.C. § 2241, a federal district court is authorized
to grant a writ of habeas corpus when a petitioner is
“in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2241(c)(3). “[A]liens may continue to bring collateral
legal challenges to the Attorney General's detention
authority . . . through a petition for habeas corpus.”
Casas-Castrillon v. Dep't of Homeland Sec., 535
F.3d 942, 946 (9th Cir. 2008). Federal district courts have
habeas jurisdiction under Section 2241 to review bond hearing
determinations of an alien held in custody pursuant to
removal proceedings. Singh v. Holder, 638 F.3d 1196,
1200 (9th Cir. 2011); Leonardo v. Crawford, 646 F.3d
1157, 1160 (9th Cir. 2011).
requests an order requiring a bond hearing before the
immigration court, as well as attorneys' fees and costs.
Dkt. 1 at 8. Respondents argue that the petition should be
dismissed because petitioner did not exhaust administrative
remedies and because petitioner is not entitled to a bond
Ninth Circuit has clearly stated the proper administrative
procedure for ...