United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART PETITION
FOR WRIT OF HABEAS CORPUS (ECF NO. 1)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
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. 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.
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
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.
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.
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.
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.
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.
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.
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 ...