Opinion
CV 04-895-PA.
July 9, 2004
DAN R. LARSSON, Larsson Immigration Group, P.C., Bend, OR, Attorneys for Petitioner.
KARIN J. IMMERGUT, United States Attorney, KENNETH C. BAUMAN, Assistant United States Attorney Portland, OR, Attorneys for Respondents.
OPINION AND ORDER
Petitioner Jose Alfego Partida Serrano brings this petition for habeas relief under 28 U.S.C. § 2241, seeking release from custody. I grant the petition and order respondents to release petitioner on reasonable conditions within twenty-four hours.
BACKGROUND
Petitioner is a native of Mexico, born in 1954. He entered the United States as a lawful permanent resident in 1982.
Petitioner has been married to a United States citizen, Cindy Partida, since 1976. Petitioner has four step-children who are United States citizens, and many step-grandchildren. Petitioner's brother and other relatives live in the United States.
Starting in 1979, petitioner was employed by Bear Creek Corp. in Medford as a crew leader in the orchard department. Petitioner's wife has been unable to work for the last twenty years and petitioner was her sole support.
In 1993, petitioner was convicted in Jackson County Circuit Court of two counts of first-degree sex abuse. The victims were two step-granddaughters, who were about eight and nine years old.
Petitioner was sentenced to time served and five years' probation, which he successfully completed in December 1998. Petitioner attended Alcoholics Anonymous meetings and quit drinking. He registered annually as a sex offender. He was not required to register as a predatory sex offender. Petitioner has no other criminal history.
On July 28, 2003, petitioner was arrested at his workplace by agency officials. The agency detained petitioner, treating him as likely to abscond.
The immigration judge held a bond hearing for petitioner on August 20, 2003. Petitioner submitted letters of support from his treatment counselor, probation officer, his two victims, family members, and others who vouched for his character. The probation officer's letter stated that petitioner had no probation violations, completed sex offender treatment, and "was very cooperative while on supervision." Ex. C, at 76.
The immigration judge denied the request for bond.
In October 2003, the immigration judge held a hearing on petitioner's request for relief from removal. The immigration judge stated that petitioner "is sick. There is no known cure for this. The treatment doesn't say that he is cured. It's a matter of the way that this is to be managed. So the Court cannot find that he is rehabilitated, and that's a non sequitur, it's not he has been successfully managed up to this time as a sex offender, apparently. Because there's been no shown violation." Ex. I, at 201. The immigration judge ordered that petitioner be removed.
On February 5, 2004, the Board of Immigration Appeals (BIA) affirmed the order of removal.
On June 18, 2004, the agency determined that petitioner should remain in custody because he was a flight risk. George L. Morones, the acting field office director, found that petitioner was not a "significant threat of violence to the community." Morones noted that petitioner "was a long time permanent resident and has resided in Southern Oregon with his wife and stepchildren for many years." Morones stated, however, that petitioner should be detained because he might flee if the Ninth Circuit were to uphold the BIA's decision on removal.
On June 25, 2004, the Ninth Circuit stayed removal pending review of the BIA's decision. Appellate briefing should be completed by October 2004.
DISCUSSION
This court reviews the agency's decision to detain petitioner for abuse of discretion. See Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991); Diaz v. Schiltgen, 946 F. Supp. 762, 764-65 (N.D. Cal. 1996).
Here, the agency found that petitioner was not a danger to the community, but concluded that he was a flight risk based on speculation that petitioner would flee if the Ninth Circuit ruled against him. However, petitioner has lived in the United States for many years and his wife of twenty-five years is a United States citizen. Petitioner contends that the agency has a policy of not releasing aliens who were convicted of sex crimes.
On these facts, I conclude that the agency's decision to continue detaining petitioner pending the Ninth Circuit decision was an abuse of discretion.
CONCLUSION
The petition for writ of habeas corpus (#1) is granted. Respondents are to release petitioner on reasonable conditions within twenty-four hours.