Opinion
23-CV-151 JLS (KSC)
04-25-2023
ALEXIS BLADIMIR ZELAYA-GONZALEZ, Petitioner v. JAMISON MATUSZEWSKI, et al., Respondents
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (ECF NO. 1)
Hon. Janis L. Sammartino, United States District Judge.
Presently before the Court is Petitioner Alexis Bladimir Zelaya-Gonzalez's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the Court is Respondents Jamison Matuszewski (San Diego Field Office Director, Immigration and Customs Enforcement), Joseph Suazo (Calexico Assistant Field Office Director, Immigration and Customs Enforcement), William Derevere (Facility Administrator, Imperial Regional Detention Facility), Matthew Allen (Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement), and Alejandro Mayorkas's (Secretary of Homeland Security) (collectively, “Respondents”) Answer in Opposition (“Resp.,” ECF No. 6) and Petitioner's Traverse (“Traverse,” ECF No. 7). The Court finds this matter appropriately decided on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). Having carefully considered the Parties' filings and the law, the Court DENIES the Petition for the reasons that follow.
BACKGROUND
Petitioner, who is proceeding pro se and is presently detained at the Imperial Regional Detention Facility pending removal proceedings, is a native and citizen of El Salvador. Pet. ¶¶ 1, 19. On or about January 7, 2020, Petitioner ran through the San Ysidro, California, Port of Entry without legal documents entitling him to enter the country and was detained by U.S. officials. Resp. Ex. 4 (ECF No. 6-2 at 17). During a sworn interview, Petitioner admitted that he was previously removed by Border Patrol on October 20, 2003, and that he was previously deported from the United States in 2007, 2008, and 2011. Id. He further admitted that he had been arrested in the United States twice, and that he also had been arrested in El Salvador. See id. He also admitted that he was a felon in the United States. See id. Petitioner was transferred to the custody of the U.S. Department of Homeland Security (“DHS”) pending a credible fear interview with an asylum officer. Id.
In citing to the exhibits to the Response, the Court refers to the page numbers provided by Respondents in the upper righthand corner of each page.
During a February 5, 2020 credible fear interview, Petitioner was found credible. Resp. Ex. 5 (ECF No. 6-2 at 21). Shortly thereafter, Petitioner was placed into removal proceedings. See Pet. Ex. A (ECF No. 1-2). Petitioner requested a change in his custody status, but on May 19, 2020, an immigration judge denied his request. Resp. Ex. 14 (ECF No. 6-2 at 72). On September 25, 2020, following a parole interview, U.S. Immigration and Customs Enforcement (“ICE”) declined Petitioner's request for parole from custody on the basis that Petitioner “ha[d] not established to ICE's satisfaction that [he is] not a flight risk” and “ha[d] not established to ICE's satisfaction that [he is] not a security risk or a danger to the community.” Resp. Ex. 15 (ECF No. 6-2 at 74).
On October 1, 2020, an immigration judge denied Petitioner's applications for asylum, withholding of removal, and withholding of removal under the United Nations Convention Against Torture (“CAT”). See Resp. Ex. 6 (ECF No. 6-2 at 23-32). In November 2020, Petitioner sought review of that decision before the Board of Immigration Appeals (“BIA”). Resp. Ex. 7 (ECF No. 6-2 at 36-43). In January 2021, Petitioner's custody status was re-evaluated in light of his heightened risk of severe illness and death from Covid-19 due to asthma. Resp. Ex. 16 (ECF No. 6-2 at 78-79). However, DHS determined that Petitioner would remain in DHS detention pending a final administrative determination in his case, given the danger he posed to public safety and his potential flight risk. See id.
On July 30, 2021, the BIA remanded Petitioner's proceedings to the immigration judge due to inconsistent findings, but found that Petitioner had waived his application for protection under CAT. See Pet. Ex. B (ECF No. 1-3). On March 24, 2022, a different immigration judge, after hearing additional testimony from Petitioner and two expert witnesses retained by Petitioner, found Petitioner's testimony to be not credible and denied Petitioner's applications for asylum and withholding of removal. Resp. Ex. 10 (ECF No. 6-2 at 52-60). Petitioner again sought review before the BIA. Resp. Ex. 11 (ECF No. 6-2 at 61).
On September 9, 2022, the BIA dismissed Petitioner's appeal, finding no error in the immigration judge's removal order. Pet. Ex. C (ECF No. 1-4). On September 20, 2022, Petitioner sought judicial review of the BIA's decision in the Ninth Circuit. See Resp. Ex. 13 (ECF No. 6-2 at 67-70). Petitioner also moved for a stay of removal pending further order of the Ninth Circuit. See id. Pursuant to Ninth Circuit General Order 6.4, Petitioner's removal has been judicially stayed in light of his motion to stay. See id. The motion to stay, which is opposed, remains pending. See id.
On January 24, 2023, Petitioner filed both the instant Petition and a Motion for Leave to Proceed in Forma Pauperis (“IFP Mot.,” ECF No. 2). The Petition contends that “Petitioner has been detained for three years, yet has not been provided a bond hearing before a neutral decision maker to determine whether his prolonged detention is justified based on danger or flight risk.” Pet. ¶ 21. The Petition asserts two claims for violation of Petitioner's due process rights in violation of the Fifth Amendment of the U.S. Constitution. Id. ¶¶ 40-46. Petitioner requests that the Court issue a writ of habeas corpus ordering either Petitioner's (1) immediate release upon the Court's determination that his continued detention is not justified, or (2) release within 30 days unless Respondents schedule a hearing before an immigration judge to determine whether Petitioner's detention pending removal is justified. Id. ¶¶ 4-5; Prayer for Relief.
On January 27, 2023, the Court granted Petitioner's IFP Motion. See ECF No. 3. On February 1, 2023, the Court ordered Respondents to show cause why the Petition should not be granted. See ECF No. 4. Respondents timely filed their Answer on March 2, 2023, see Resp., and Petitioner filed his Traverse on March 13, 2023, see Traverse.
LEGAL STANDARD
A federal prisoner challenging the execution of his or her sentence, rather than the legality of the sentence itself, may file a petition for writ of habeas corpus in the district of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial body able to review challenges to final orders of deportation, exclusion, or removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising independently from the removal process-for example, a claim of indefinite detention- federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 138 S.Ct. 830 (2018); Alvarez v. Sessions, 338 F.Supp.3d 1042, 1048-49 (N.D. Cal. 2018) (citations omitted).
ANALYSIS
Respondents contend that the Petition must be denied because: (1) Petitioner's detention does not violate the Fifth Amendment's due process clause, see generally Resp.; and (2) to the extent Petitioner contends that his conditions of confinement are unconstitutional, his claim is not cognizable in habeas, see id. at 16 n.11.
In citing to Respondents' Answer, the Court refers to the blue numbers stamped in the upper righthand corner of each page by the District's Case Management/Electronic Case Filing system.
Petitioner does not address Respondents' second argument. See generally Traverse. The Court, however, agrees with Respondents that the Petition, to the extent premised on a claim of unconstitutional conditions of confinement, is not cognizable in habeas; accordingly, this Court lacks jurisdiction over such a claim. See, e.g., Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (“We have long held that prisoners may not challenge mere conditions of confinement in habeas corpus.” (citing Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979))) (footnote omitted). Although a district court may construe a habeas petition amenable to conversion on its face as a civil rights claim after warning the pro se litigant of the possible consequences of conversion and providing an opportunity to withdraw or amend, see id. at 936 (citations omitted), the Court declines to exercise its discretion to do so here, see, e.g., Graf v. Ponce, No. CV 21-8363-VAP(E), 2022 WL 2102887, at *5-6 (C.D. Cal. Feb. 22, 2022) (citation omitted) (declining to convert § 2241 petition's conditions of confinement challenges to civil rights claim). “[C]onversion is impossible here because, among other decisive reasons, Petitioner seeks no damages under Bivens-the only available remedy for his category of claims (assuming they are even otherwise actionable).” Malone v. Warden, Victorville II, No. 522CV00171JFWSK, 2022 WL 619019, at *1 (C.D. Cal. Feb. 7, 2022) (citing Carlson v. Green, 446 U.S. 14, 16, 19 (1980)). Accordingly, the Court finds that it lacks jurisdiction over any claim concerning conditions of confinement; thus, any such claims in the Petition must be denied.
The Court thus turns to the crux of Respondents' argument: that Petitioner's detention does not violate the Fifth Amendment. See generally Resp. Respondents assert that Petitioner is being detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), see Resp. at 10, which provides: “If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution . . ., the alien shall be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii) (emphasis added); see also Jennings v. Rodriguez, 138 S.Ct. 830, 842 (2018) (noting that “§[] 1225(b) . . . thus mandate[s] detention of applicants for admission until certain proceedings have concluded”). Although the issuance of a final order of removal shifted Petitioner's detention authority to 8 U.S.C. § 1231, see Resp. at 11, Petitioner's petition for review in the Ninth Circuit and the attendant judicial stay of his removal order shifted his detention authority back to 8 U.S.C. § 1225(b)(1)(B)(ii), see Resp. at 11 (citing Prieto-Romero v. Clark, 534 F.3d 1053, 1060, 1062 (9th Cir. 2008)). As the Ninth Circuit has yet to rule on the petition for review or Petitioner's motion to stay, Petitioner remains detained under 8 U.S.C. § 1225(b)(1)(B)(ii). See Resp. at 11 (citing Lopez-Velazquez v. Johnson, No. 16-CV-01226-EMC, 2016 WL 4073338, at *5 n.3 (N.D. Cal. Aug. 1, 2016)). And the Supreme Court has recognized that “nothing in the statutory text [of § 1225(b)] imposes a limit on the length of detention,” and § 1225(b) “says [no]thing whatsoever about bond hearings.” Jennings, 138 S.Ct. at 842. The Supreme Court has further held that the express exception to detention provided in 8 U.S.C. § 1182(d)(5)(A)-which permits the Attorney General to temporarily parole, in limited circumstances, an inadmissible alien detained pursuant to § 1225(b)(1)-“implies that there are no other circumstances under which aliens detained under § 1225(b) may be released.” Id. at 844 (emphasis in original) (citation omitted).
Petitioner does not contest, see generally Traverse, and the Court agrees, that Petitioner is being detained under § 1225(b)(1)(B)(ii). Accordingly, the Court finds that Petitioner has no Fifth Amendment right to a bond hearing or to parole pending his removal proceedings. As the Supreme Court has reaffirmed as recently as 2020, the only due process due an alien seeking admission to the United States is “those rights regarding admission that Congress has provided by statute.” Dep't of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959, 1983 (2020). The Ninth Circuit, applying the Supreme Court's holding in Thuraissigiam, has explicitly stated that, “[a]ccordingly, any rights [an inadmissible alien] may have in regard to removal or admission are purely statutory in nature and are not derived from, or protected by, the Constitution's Due Process Clause.” Mendoza-Linares v. Garland, 51 F.4th 1146, 1167 (9th Cir. 2022). Ultimately, “[t]he recognized liberty interests of U.S. citizens and aliens are not coextensive: the Supreme Court has ‘firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.'” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206 (9th Cir. 2022) (quoting Demore v. Kim, 538 U.S. 510, 522 (2003)).
For the reasons provided by Respondents, see Resp. at 13-16, the authorities Petitioner cites to support his due process claim are inapposite, see Pet. ¶¶ 22-39. Binding Ninth Circuit and Supreme Court precedents are clear that Petitioner lacks any rights beyond those conferred by statute, and no statute entitles Petitioner to a bond hearing. Accordingly, the Petition is without merit and must be denied.
CONCLUSION
In light of the foregoing, the Court DENIES the Petition (ECF No. 1). The Court need not issue a certificate of appealability in this case. See Udom v. U.S. Immigr., Customs Enf't, No. 11-CV-2699-IEG NLS, 2012 WL 380135, at *4 (S.D. Cal. Feb. 6, 2012) (noting no certificate of appealability required for order denying § 2241 petition (citing Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997))). As this concludes the litigation in this matter, the Court DIRECTS the Clerk of the Court to close the file.
IT IS SO ORDERED.