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Hossenini v. DHS ICE

United States District Court, S.D. California

October 16, 2019

ABBAS HOSSENINI, Petitioner,
v.
DHS ICE, Chief Counsel, Respondent.

          ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 1)

          HON. JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.

         Presently before the Court is Petitioner Abbas Hossenini's Petition for Writ of Habeas Corpus (“Pet., ” ECF No. 1) under 28 U.S.C. § 2441. Petitioner, proceeding pro se, is currently in the custody of the United States Immigration and Customs Enforcement (“ICE”), an agency of the United States Department of Homeland Security (“DHS”). Pet. 1-3.[1] Petitioner alleges Fifth Amendment due process and Eighth Amendment violations arising out of his prolonged detention without a bond hearing for more than twenty-one months. Id. at 3, 49. Petitioner requests release from ICE custody either in California or via deportation to “anywhere in the world.” Id. at 49.

         On August 19, 2019, the Court issued an Order pursuant to 28 U.S.C. § 2243 for Respondent to show cause why the Petition should not be granted. See ECF No. 12. As of the date of this Order, the Court has received no response. After a thorough review of Petitioner's arguments and evidence and the law, the Court GRANTS IN PART and DENIES IN PART the Petition.

         BACKGROUND

         Petitioner, a citizen and native of Afghanistan, was granted refugee status by the United Nations in 2012 in Turkey. ECF No. 10 (“Letter”) at 3. Petitioner possessed no travel documents and only had a temporary ID card. Id. United States Immigration Officials in Turkey knew that Petitioner had no travel documents yet granted him admission into the United States. Id.; Pet. at 50. Petitioner was admitted into the United States on or around September 25, 2012, Pet. at 20, and became a Legal Permanent Resident on June 30, 2014. Id. at 8.

         While residing in the United States, Petitioner was charged with and pled guilty to multiple criminal offenses. See Id. at 20-46. Notably, Petitioner was convicted for violating California Penal Code section 243(e)(1)-for domestic violence-on August 15, 2014, and for violating protective and stay away orders intended to prevent domestic violence on May 28, 2015, and June 13, 2016. Id. at 20-21, 25-28, 35-36, 41-43.

         On October 21, 2016, ICE took Petitioner into custody “[p]ursuant to section [] 237(a)(2)(E)(i) of the Immigration and Nationality Act as amended for a crime of domestic violence.” Id. at 20. Because Petitioner was convicted of a crime of domestic violence within five years of entry into the United States, Petitioner was subject to removal. Id. at 21. On July 31, 2017, an Immigration Judge ordered Petitioner removed from the United States to Afghanistan. Id. at 16. Petitioner has not been removed from the United States and remains in ICE custody at the Otay Mesa Detention Center. Id. at 2-3.

         Petitioner alleges that his “deportation officer told [him] that if [he] was not deported in six months [ICE would] release [him] in the USA.” Id. at 3, 49. Petitioner alleges that ICE requested that Petitioner provide his travel documents so that he could be deported to Afghanistan. Id. at 49. Petitioner alleges he has no travel documents from Afghanistan. Id. On August 2 and 7, 2018, Petitioner alleges he called the Afghan Consulate, which advised him that it had processed his paperwork and sent it to ICE. Letter at 7. Petitioner has not been advised, however, of the Consulate's response or the outcome of those proceedings. See Id. at 3-8. Instead, Petitioner has received numerous notices of “Decision to Continue Detention.” See Id. 9; Pet. at 8-10. These notices acknowledge that ICE conducted a review of Petitioner's file record and determined that he would not be released from custody. See Letter at 9; Pet. at 8-10. The most recent notice of “Decision to Continue Detention” provided by Petitioner is dated August 15, 2018. Letter 9.

         On July 3, 2018, Petitioner filed this Petition for Writ of Habeas Corpus. See generally Pet. On August 19, 2019, the Court issued an Order to Show Cause to Respondent, Chief Counsel for DHS/ICE, why the Petition should not be granted. ECF No. 12. As of the date of this Order, Respondent has neglected to submit any response to the Court.

         ANALYSIS

         I. Jurisdiction

         As a preliminary matter, the Court must determine whether it has jurisdiction to hear the merits of Petitioner's claim. A federal district court has jurisdiction to hear habeas claims under 28 U.S.C. § 2241. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). Jurisdiction is proper “‘with respect to the application of [sections1221 through 1232] to an individual alien against whom proceedings under such part have been initiated.'” Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (quoting 8 U.S.C. § 1252(f)(1)). Although there are some statutory limitations barring judicial review of the Attorney General's exercise of discretion in removal proceedings, “habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Id. at 688; see also Jennings v. Rodriguez, 583 U.S., 138 S.Ct. 830, 841 (2018) (holding that 8 U.S.C. § 1226(e) does not bar constitutional challenges to the “statutory framework” of the Government's detention authority). Accordingly, the Court may proceed to analyze the merits of the Petition.

         II. Prolonged Detention

         Petitioner claims he has been subjected to prolonged detention without bond. Pet. at 20. Any alien who has been convicted of a crime of domestic violence is subject to removal from the United States. 8 U.S.C. § 1227(a)(2)(E)(i). Aliens who violate protective orders also may be removed. 8 U.S.C. § 1227(a)(2)(E)(ii). “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed.” 8 U.S.C. § 1226(a). Typically, detained aliens are removed within ninety days-the “removal period.” 8 U.S.C. § 1231(a)(1)(A). Criminal aliens-including those convicted of ...


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