Opinion
Civ 05-1055 PHX NVW (MEA).
October 4, 2005
REPORT AND RECOMMENDATION
Mr. Dario Fidel Armijo ("Petitioner"), who is represented by counsel in this matter, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on April 7, 2005. Pursuant to the Court's order of August 26, 2005, Respondents filed a Response in Opposition to Petition for Writ of Habeas Corpus (Docket No. 7) on September 20, 2005.
Thomas Baranick is substituted for Patricia Schmidt pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure.
I. Procedural History
Petitioner is a native and citizen of Argentina, admitted to the United States as an immigrant on October 12, 1989 See Response to Petition for Writ of Habeas Corpus ("Response"), Exh. 1. On March 9, 1999, pursuant to a plea of nolo contendere, Petitioner was convicted by the State of California of violating sections 288.2(a), 311.11(a) and 647.6(a) of the California Penal Code, i.e., committing the acts of exhibiting harmful matter with the intent of seducing a minor (between September 1, 1998 and December 31, 1998), possession and control of child pornography (occurring on or about January 22, 1999), and child molestation (on or about January 6, 1999). Id., Exh. 2. Pursuant to his agreement to plead nolo contendere to these three charges, six other charges against Petitioner were dismissed. Id., Exh. 2. Petitioner was given a suspended sentence, placed on three years probation, and ordered to serve 180 days in jail pursuant to his conviction for these offenses. Id., Exh. 2.
On August 26, 2004, the Bureau of Immigration and Customs Enforcement ("BICE") issued a Notice to Appear charging Petitioner with being removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (section 237(a)(2)(A)(ii) of the Immigration and Nationality Act), as an alien who had committed two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. See id., Exh. 3. The Notice to Appear also charged Petitioner with being removable pursuant to 8 U.S.C. § 1227(a)(2)(e)(i), because Petitioner was an alien who had been convicted of a crime of child abuse. Id., Exh. 3. On September 23, 2004, BICE charged Petitioner with being removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he was an alien who had been convicted of an aggravated felony as that term is defined in 8 U.S.C. § 1101(a)(43)(I). Id., Exh. 3.
The Notice to Appeal charging Petitioner with being removable for having committed an aggravated felony was amended on September 28, 2004, by the filing of a Form I-261, to clarify the conviction charged and the date that the alleged conviction occurred. See Response, Exh. 3.
Petitioner acquired the services of legal counsel and contested the charges of removability. See id., Exh. 4. After reviewing written arguments and evidence submitted by the parties, an Immigration Judge ("IJ") concluded that Petitioner had been convicted of the charges specified in the Notices to Appear and found that Petitioner was removable pursuant to the sections of the Immigration and Nationality Act ("INA") cited by BICE. See id., Exh. 4.
Petitioner applied for the relief of cancellation of removal pursuant to section 240A(a) of the INA. An IJ conducted a hearing regarding Petitioner's request for cancellation of removal on November 18, 2004. Response at 3; Exh. 4. The IJ concluded that Petitioner was statutorily ineligible for this relief because Petitioner had been convicted of an aggravated felony. See id., Exhs. 4 5. However, the IJ also concluded that it would exercise its discretion to grant Petitioner the relief of cancellation of removal if Petitioner were statutorily eligible for this relief, i.e., if, on appeal, it was determined that Petitioner had not been convicted of an aggravated felony as that term is defined by the INA. See id., Exhs. 4 5.
Both Petitioner and BICE appealed the IJ's decision ordering Petitioner removed to Argentina to the Board of Immigration Appeals ("BIA"). See id., Exh. 6. The BIA dismissed Petitioner's appeal on May 16, 2005, in a decision also concluding that dismissing Petitioner's appeal rendered BICE's appeal moot. See id., Exhs. 6 8. The BIA's decision made the order of removal issued by the IJ an administratively final order of removal. See 8 U.S.C. § 1101(a) (47(A), (B)(i). Petitioner was detained without bond, pursuant to section 236(c)(1)(A) of the INA, pending execution of the order of removal. See Response, Exh. 8.
Petitioner sought review of the decision ordering him removed from the United States by the Ninth Circuit Court of Appeals in an action filed June 8, 2005. See Armijo v. Gonzales, Docket No. 05-73436. As of September 30, 2005, this matter was still pending before the Ninth Circuit Court of Appeals.
Petitioner was released from BICE custody on August 23, 2005, allegedly having been removed from the United States to Argentina. See Docket No. 4; Response at 4, Exh. 9.
The habeas petition filed April 27, 2005, asserted that Petitioner was entitled to federal habeas relief because Petitioner was being improperly subjected to mandatory detention without bond pursuant to 8 U.S.C. § 1226(c) and because Petitioner had been deprived of his right to an individualized determination of whether he was entitled to release on bond pending his removal, in violation of his right to due process.
Respondent asserts that the petition for habeas relief from Petitioner's confinement is moot because Petitioner has been removed from the United States.
II. Analysis
A. Applicable law
This Court may issue a writ of habeas corpus to an alien detainee who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (1994 Supp. 2005). Petitioner filed his petition for federal habeas relief on April 7, prior to the time that his order of removal became administratively final by issuance of the BIA's decision on May 16.
Federal law provides for the detention of removable aliens in two separate circumstances: section 236(c) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1226, governs the detention of aliens who are not under an administratively final order of removal. Section 236(c)(1) of the INA provides that the Attorney General "shall take into custody any alien" who is removable as an aggravated felon. 8 U.S.C. § 1226(c)(1)(B) (1999 Supp. 2005). The Attorney General has no authority to release a removable detainee convicted of an aggravated felony unless he is a witness or is cooperating with a criminal investigation. See id. § 1226(c)(2).
Section 241 of the INA, codified at 8 U.S.C. § 1231, applies to the detention of aliens who are being held pursuant to an administratively final order of removal. This section provides for a 90-day "removal period." Id. § 1231 (emphasis added). If an alien subject to a final order of removal is not removed within the 90-day removal period, the alien is then entitled to a bond hearing. See id. § 1231(a)(3); 8 C.F.R. § 241.1; Small v. Reno, 127 F. Supp. 2d 305, 308 (D. Conn. 2000). If an alien delays their removal by filing an action in federal court to stay removal, the removal period does not begin until the federal court reaches a final decision regarding the alien's order of removal. See Dor v. District Dir., Immigration Naturalization Serv., 891 F.2d 997, 1102-03 (2d Cir. 1989).
. . . [The petitioner] literally holds the keys to his own release. [The petitioner] can withdraw his administrative appeal and return to his native land . . ., thus ending his detention immediately. Federal courts having considered analogous circumstances are in agreement that aliens who insist on postponing their own deportation have "no constitutional right to remain at large during the ensuing delay, and the United States has a powerful interest in maintaining the detention in order to ensure that removal actually occurs." Parra, 172 F.3d 954, 957.Hinojosa-Perez v. Eddy, 55 F. Supp. 2d 1001, 1006-07 (D. Ak. 1999).
B. Petitioner's specific claims for relief
1. Petitioner asserts that his continued detention without bail, pursuant to section 236(c) of the INA, violates his constitutional rights.
At the time that Petitioner filed his action for federal habeas relief, Petitioner's order of removal was not administratively final because the IJ's decision finding Petitioner removable and ineligible for cancellation of removal had been appealed to the BIA and the BIA had not yet reached a decision on that appeal. Therefore, when Petitioner filed his application for federal habeas relief, Petitioner was being detained by Respondent pursuant to INA section 236.
However, at this time, Petitioner is not being detained by Respondent pursuant to the mandatory detention provisions of INA § 236(c), which applies to aliens whose removal is not administratively final. The order of removal pertaining to Petitioner became final on May 16, 2005, when the BIA dismissed Petitioner's appeal of the IJ's decision finding him removable and ineligible for withholding of removal. See 8 C.F.R. § 241.1(a). Petitioner was, therefore, being held pursuant to 8 U.S.C. § 1231, i.e., INA section 241, which applies to aliens subject to a administratively final removal order. Therefore, Petitioner does not have standing to allege that his detention pursuant to section 236 is unconstitutional because he is not being held pursuant to this statute, and Petitioner's claim that this section is unconstitutional as applied to him, is moot. See Koita v. Reno, 113 F. Supp. 2d 737, 738 n. 1 (M.D. Pa. 2000).
2. The relief sought by Petitioner is moot
Additionally, because the petition for habeas relief attacks only Petitioner's detention without an individualized bond hearing, rather than the validity of the order of removal, and Petitioner has been released from custody, the petition is moot. The case-or-controversy requirement of Article III, § 2, of the United States Constitution "subsists through all stages of federal judicial proceedings . . . The parties must continue to have a personal stake in the outcome of the lawsuit." Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S. Ct. 1249, 1253-54 (1990) (internal quotations omitted). If it appears that the Court is without the power to grant the relief requested by a habeas petitioner, then that case is moot. See Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991).
Petitioner was released from detention approximately four months after he filed his federal habeas petition. The relief that Petitioner requested in his habeas petition, i.e., his release from continued and potentially indefinite detention, can no longer be granted by the Court. Therefore, this habeas action, alleging his continued detention violates federal law, is moot. See Ali v. Cangemi, 419 F.3d 722, 724 (8th Cir. 2005); Picrin-Peron, 930 F.2d at 775; Soliman v. United States, 296 F.3d 1237, 1243 (11th Cir. 2002); Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (holding that a petitioner's release moots their habeas petition challenging the legality of extended detention); Watson v. INS, 271 F. Supp. 2d 838, 840 (E.D. Va. 2003); Camara v. Comfort, 235 F. Supp. 2d 1174, 1176 (D. Colo. 2002). Cf. Spencer v. Kemna, 523 U.S. 1, 8-16, 118 S. Ct. 978, 983-87 (1988) (finding moot a habeas petition challenging parole revocation procedures after the petitioner was released from prison); Fendler v. United States Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988) (holding that a section 2241 petition becomes moot once the petitioner, seeking release from parole rather than challenging the validity of his original conviction, is released from parole).
In accordance with the published opinions cited supra, the United States Ninth Circuit Court of Appeals has determined that an immigration detainee's release from detention moots a habeas petition asserting only that the detainee's continued detention violates United States law. See Fakic v. Sonchik, 35 Fed. App. 674, 2002 WL 1060247, at *1 (9th Cir.); Masters v. Shiltgen, 28 Fed. App. 712, 714, 2002 WL 104927, at *2 (9th Cir.); Loredo-Corrales v. Higgins, 132 F.3d 39 (Table), 1997 WL 787196, at *1 (9th Cir.).
III. Conclusion
The Petition for Writ of Habeas Corpus is moot because the petition challenges only the legitimacy of Petitioner's continued detention without bond and Petitioner has now been released from detention. There is no existing case or controversy over which this Court may exercise jurisdiction and, therefore, this case is moot.
IT IS THEREFORE RECOMMENDED that Mr. Armijo's Petition for Writ of Habeas Corpus be denied and dismissed without prejudice as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.