Opinion
No. CIV 06-0824 ALA P.
August 13, 2007
ORDER
Before the Court are Findings and Recommendations issued by Magistrate Judge Gregory G. Hollows on May 22, 2007. Docket No. 27. The Findings and Recommendations conclude that Mr. Ayala-Sanchez' Amended Habeas Corpus petition, filed November 19, 2006, should be dismissed as moot because Mr. Ayala Sanchez was deported to Mexico in August 2006 and therefore is no longer subject to any consequences of the conviction he challenges in this action. Judge Hollows rejects Mr. Sanchez' contention that "[w]ere [he] to return to the United States he would be subject to the terms of parole as well as the requirement that he register as a sexual offender pursuant to Penal Code section 290," on the basis that "it appears that [Mr. Ayala Sanchez] would have to commit a crime, that is by an illegal entry into the United States and by `continuing, unlawful presence in this country,' . . . before his challenge raised herein could ever become at issue." Report and Recommendation at 2 (internal citation omitted). Judge Hollows then cited Spencer v. Kemna, 523 U.S. 1, 15 (1998) for the proposition that "[the] Article III case-or-controversy requirements cannot be met when the imposition of the parole term, condition or restriction (or consequences arising therefrom) that is challenged is contingent upon a petitioner violating the law, being caught and convicted." Id. at 2-3. Although Mr. Ayala Sanchez' counsel had requested an additional thirty days to obtain more information "concerning the basis for [Mr. Ayala Sanchez's] removal/deportation," Judge Hollows stated that "[t]he court needs no additional information." Id. at 2.
On June 1, 2007, Mr. Ayala Sanchez' counsel filed Objections to the Findings and Recommendations. The Objections provide additional information about the basis for Mr. Ayala Sanchez' removal. Specifically, they state that, inter alia, "the actual basis for his removal was that he was an aggravated felon based upon the [conviction challenged in this action]; . . . assuming [that] conviction were vacated, [Mr. Ayala Sanchez] would have to apply for a visa in order to enter the United States; the granting of such a visa is entirely discretionary . . . [and] assuming the . . . conviction is not vacated, [Mr. Ayala Sanchez] would be prevented from lawfully returning to the United States for a period of 20 years." Objections to Findings and Recommendations at 2. The Objections ask this Court to decline to adopt the Findings and Recommendations, and instead "direct the Magistrate Judge to reconsider whether said Findings and Recommendations should stand in light of the Homeland Security information provided herein." Id.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. In view of the information provided by counsel for Mr. Ayala Sanchez on June 1, 2007, the Court will not consider the May 22, 2007 Findings and Recommendations (Docket No. 27) at this time; and,
2. This matter is remanded to Magistrate Judge Gregory G. Hollows for further consideration in light of the information provided by counsel for Mr. Ayala Sanchez in his June 1, 2007, Objections (Docket No. 28).