United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION FOR TEMPORARY
RESTRAINING ORDER AND DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS UNDER 28 U.S.C. § 2241 AS PREMATURE
[DKT. NO. 4.]
Gonzalo P. Curiel, United States District Judge.
November 11, 2019, Petitioner Jacqueline Louisa Gentle
(“Petitioner”), a detainee at the Otay Mesa
Detention Facility in the custody of the U.S. Department of
Homeland Security, Bureau of Immigration and Customs
Enforcement, proceeding pro se and in forma pauperis, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (Dkt. No. 1.) On December 10, 2019, Petitioner
filed a motion for temporary restraining order enjoining ICE
from removing her from the United States until the Court
decided the merits of her petition. (Dkt. No. 4.) Respondent
filed an opposition on December 18, 2019. (Dkt. No. 7.) Based
on the reasoning below, the Court DENIES Petitioner's
motion for temporary restraining order and DISMISSES the
petition as premature.
is a native and citizen of Belize. (Dkt. No. 7-2, Prime
Decl., Ex. A at 3.) On or about December 19, 2012, the
Department of Homeland Security (“DHS”) initiated
removal proceedings against Petitioner when it filed a Notice
to Appear (“NTA”) with the immigration court in
Las Vegas, Nevada, charging her with removability pursuant to
8 U.S.C. § 1227(a)(1)(A) as an alien who was not in
possession of a valid document at the time of entry.
(Id., Exs. B, D.) ICE alleged that she was not a
citizen or national of the United States and was admitted to
the United States on or about May 19, 2007, with a
fraudulently obtained U.S. passport. (Id., Ex. B.)
December 11, 2012, Petitioner was indicted for making a false
statement on an application for a U.S. passport in violation
of 18 U.S.C. § 1542, among other crimes. See U.S. v.
Williams, et al., Case No. 2:12-cr-00463-JCM-VCF (D.
Nev.), Dkt. No. 1 (Indictment). On January 8, 2013, the U.S.
Department of State issued a letter to Petitioner informing
her it had revoked the U.S. passport issued to her on
February 11, 2010. (Dkt. No. 7-2, Prime Decl., Ex. C.)
3, 2013, Petitioner's removal proceedings were
administratively closed because she was in U.S. Marshal
custody for her criminal case. (Id., Ex. D at 15.)
On January 15, 2016, after a jury trial, Petitioner was found
guilty of counts 4, 5, 7, 9, 10, 24, 25, 26 and 27 of the
third superseding indictment. See U.S. v. Williams et
als., Case No. 2:12-cr-00463-JCM-VCF (D. Nev.), Dkt. No.
725 (Jury Verdict). Specifically, count five charged
Petitioner with having, on or about February 11, 2010,
knowingly made a false statement on an application for a U.S.
passport, with the intent to secure for her own use the
issuance of a U.S. passport, in that she stated that her
father was “A. Gentle, ” a U.S. Citizen, born in
Alabama, which she knew to be false in violation of 18 U.S.C.
§ 1542. (Dkt. No. 7-2, Prime Decl., Ex. E at 34.)
Petitioner was initially sentenced to an aggregate term of 65
months in prison, U.S. v. Williams et als., Case No.
2:12-cr-00463-JCM-VCF (D. Nev.), Dkt. No. 815 at 3, but
appealed her conviction and, on March 22, 2018, the Ninth
Circuit affirmed her conviction, vacated her sentence and
remanded the matter for re-sentencing because the district
court did not make the required findings to support a
“two-level enhancement for obstruction of
justice.” (Dkt. No. 7-2, Prime Decl., Ex. G at 68.) On
January 15, 2019, Petitioner was resentenced to time served.
(Id., Ex. F.) Petitioner's motion for
post-conviction relief under 28 U.S.C. 2255 is currently
pending in the District of Nevada. U.S. v. Williams, et
al., Case No. 2:12-cr-00463-JCM-VCF (D. Nev.), Dkt. Nos.
Petitioner was released from prison, Petitioner's removal
proceedings were re-calendared and she appeared, pro se,
before an Immigration Judge (“IJ”) at the Las
Vegas Immigration Court on January 30, 2019. (Dkt. No. 7-2,
Prime Decl., Ex. D at 15-16.) Continuances were granted for
DHS to obtain conviction records and for Petitioner to retain
counsel. (Id. at 16.) On April 4, 2019, DHS
transferred Petitioner to the Otay Mesa Detention Facility
and requested a change of venue to the Otay Mesa Immigration
Court, which was granted. (Id. at 16.) Petitioner
appeared, pro se, before the IJ at the Otay Mesa Immigration
Court on April 30, 2019. Id. Petitioner informed the
IJ that her father was a U.S. citizen, and the IJ explained
that it was her burden to demonstrate that she acquired U.S.
citizenship. (Id.) Petitioner sought time to locate
evidence of her father's presence in the United States,
and the IJ granted several continuances for Petitioner to
locate records pertaining to her father. (Id. at
17-19.) After numerous hearings, the Court set a final filing
deadline of October 23, 2019 to file any documents in support
of her claim to U.S. citizenship. (Id. at 19.) On
November 6, 2019, the IJ issued a decision that Petitioner be
removed from the United States to Belize as outlined in the
NTA. (Id.) In her decision, the IJ considered
whether Respondent had any avenue to remain in the United
States. (Id.) The IJ concluded that
“Respondent failed to meet her burden to demonstrate
she acquired United States citizenship and birth through her
purported United States citizen father.” (Id.
at 29.) The IJ also found Respondent did not harbor fear of
returning to Belize and thus, was not eligible for fear-based
humanitarian relief and her criminal history made her
ineligible for other forms of relief from removal.
(Id.) On or about November 21, 2019, Petitioner
filed a Notice of Appeal to the Board of Immigration Appeals
(“BIA”), and the appeal remains pending.
(Id., Ex. J; 8 C.F.R. § 1003.38(c) (“The
date of filing of the Notice of Appeal (Form EOIR-26) shall
be the date the Notice is received by the Board.”).
When an appeal of an IJ's decision is filed, an automatic
stay of removal is imposed. See 8 C.F.R. §
on October 2 and 7, 2019, Petitioner appeared before the IJ
for custody redetermination hearings pursuant to
Franco-Gonzalez v. Holder, 2013 WL 3674492 (C.D.
Cal. Apr. 23, 2013). (Id., Ex. H.) On November 5,
2019, the IJ found that DHS met its burden to demonstrate, by
clear and convincing evidence, that Petitioner is an extreme
flight risk. (Id. at 72.) Petitioner appealed the
bond decision to the BIA, and the appeal remains pending.
(Id., Ex. I.)
November 11, 2019, Petitioner filed the petition in this case
challenging the IJ's bond determination and seeking
immediate release from custody. (Dkt. No. 1.) On December 10,
2019, Petitioner filed a temporary restraining order
enjoining ICE from deporting her until the Court rules on the
merits of her petition. (Dkt. No. 4.) Respondent filed a
response seeking dismissal of the petition and denial of the
temporary restraining order motion as premature. (Dkt. No.
seeks a temporary restraining order barring ICE from removing
her to Belize until the Court rules on her petition. (Dkt.
No. 4.) Respondent argues that because she has appealed the
IJ's decision denying her citizenship claim to the BIA,
an automatic stay is imposed by 8 C.F.R. §
1003.6 and she is not subject to removal;
therefore, the Court should deny her motion for temporary
restraining order. Next, Respondent argues that the bond
proceeding being challenged in the instant petition is
currently pending before the BIA; therefore, her habeas
challenge should be dismissed as premature.
Court agrees with Respondent. First, the temporary
restraining order Petitioner seeks is premature. She recently
appealed the IJ's decision of removal around November 21,
2019. (Dkt. No. 7-2, Prime Decl. Ex. J at 78.) Filing the
appeal triggers the automatic stay of her removal. 8 C.F.R.
§ 1003.6(a); see Hernandez Culajay v.
McAleenan, 396 F.Supp.3d 477, 481 (E.D. Pa. 2019). The
case is still pending with the BIA and Petitioner is not
subject to immediate removal. Accordingly, the Court DENIES
her motion for temporary restraining order.
in the petition, Petitioner challenges the IJ's decision
denying her release by bond because she is a flight risk.
(Dkt. No. 1, Pet.) On October 28, 2019, Petitioner filed an
appeal of the IJ's bond decision to the BIA. (Dkt. No.
7-2, Prime Decl., Ex. I.) According to Respondent, no
decision has yet been rendered by the BIA. Because Petitioner
has failed to exhaust the bond issue with the BIA, her
petition is premature. See Castro-Cortez v. I.N.S.,
239 F.3d 1037, 1047 (9th Cir. 2001) (“we require, as a
prudential matter, that habeas petitioners exhaust available
judicial and administrative remedies before seeking relief
under § 2241”). “The exhaustion requirement
avoids premature interference with the agency's processes
and helps to compile a full judicial record.”
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th
Cir. 2003) (citation and quotation omitted); Dhangu v.
I.N.S.,812 F.2d 455, 460 (9th Cir. ...