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Tapia v. Derosa

United States District Court, Ninth Circuit

November 21, 2013

Leonardo Tapia, Jr, Petitioner,
v.
C. DeRosa, Respondent.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

TO THE HONORABLE FREDERICK J. MARTONE, UNITED STATES SENIOR DISTRICT JUDGE

Petitioner Leonardo Tapia, Jr. (A027-530-663) has filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. § 2241 (Doc. 1). On June 24, 2013, Respondent[1] filed his Response in Opposition, along with separately filed additional exhibits (Doc. 14, 15, and 16). Although Petitioner did not file a Reply, he filed a "Lodgement of Exhibits" in support of his habeas petition on September 16, 2013 (Doc. 17).

BACKGROUND

Petitioner, an inmate incarcerated at the Eloy Detention Center in Eloy, Arizona, claims in his habeas petition that he is being unlawfully detained by Immigration and Customs Enforcement because he is a United States Citizen, and demands his immediate release. (Doc. 1, at 4, 9.) Petitioner admits he did not exhaust his administrative remedies, because he claims that there is "[n]o remedy" for Petitioner. (Id., at 4.) Respondent argues that Petitioner's habeas petition should be denied because Petitioner has not exhausted his administrative remedies, and, alternatively, that it be denied on the merits. (Doc. 14.)

On April 28, 1987, immigration officials arrested Petitioner, a juvenile, for entry without inspection, and was issued alien number 027 530 663. (Doc. 14-2, at 23.) During that time, the Immigration and Naturalization Service processed unaccompanied juvenile aliens by serving them with an alien registration number prior to returning them to their country. (Id., at 24.) On June 4, 1998, Petitioner was convicted in the Superior Court of Arizona of one count of Possession of Dangerous Drugs, a class four felony, and one count of Possession of Drug Paraphernalia, a class six felony. (Id., at 27-32.) Petitioner was sentenced to three years of probation on the dangerous drugs count, and six months in prison on the drug paraphernalia count. (Id.)

On August 21, 1998, Petitioner was encountered by immigration officials while Petitioner was incarcerated at the Florence, Arizona detention facility, and determined to be a citizen of Mexico with alien number 027 530 663. (Doc. 14-2, at 24.) On June 22, 1999, Petitioner was convicted in the Superior Court of Arizona of the crime of Possession of Narcotic Drugs for Sale with One Prior Felony Conviction, a class two felony, and sentenced to 10-years in prison. (Id., at 34-37.)

On April 17, 2008, Petitioner applied for entry into the United States in San Luis, Arizona, at the San Luis port-of-entry. (Doc. 14-2, at 24.) Petitioner stated to Customs and Border Patrol Protection Officer Ramirez that he was looking for his girlfriend. (Id.) The girlfriend had already been admitted by ambulance approximately 30 minutes earlier. (Id.) During his encounter with immigration officials, it was determined that Petitioner had two prior arrests for Entry Without Inspection ("EWI"), in violation of 8 U.S.C. §1325. (Id., at 24-25.) Based upon conflicting information[2] however, Border Patrol agents listed Petitioner's citizenship as "unknown." (Id.) Petitioner was ultimately turned over to San Luis police for further questioning. (Id.)

In July, 2009, the Government performed a routine record check and discovered Petitioner's previous EWI arrests. (Doc. 14, at 3 ¶7.) On July 10, 2009, Immigration and Customs Enforcement (ICE) placed an immigration detainer/hold on Petitioner while he was incarcerated by the Arizona Department of Corrections. (Doc 14-2, at 11, 21.) Petitioner was convicted, on August 13, 2009, in the Arizona state court of the crime of kidnaping, a class 2 felony, in violation of A.R.S. §13-1304(A)(3), and sentenced to five-years in prison. (Id., at 40-43.) On August 24, 2009, immigration officials encountered Petitioner where he was incarcerated. (Id., at 14.) Petitioner claimed to be a United States citizen and provided copies of a California "Delayed Registration at Birth" (hereinafter "Delayed Registration"), a United States passport issued May 16, 2007, a Social Security card, and an Arizona Driver's License. (Id.) Based upon these documents, immigration officers deemed Petitioner to be a United States citizen. (Id.)

The Delayed Registration indicated that Petitioner was born in Santa Ana, California, on June 16, 1972, and identifies his mother as Rosa Maria Felix and his father as Leonardo Tapia. (Doc. 14-2, at 12.) The document indicates that Petitioner's mother signed it on September 10, 1990, and his father on September 6, 1990. (Doc. 14-2, at 45.) The typed notes on the Delayed Registration indicate that the registrar relied on a baptismal certificate from Our Lady Queen of Angels Church in Los Angeles, California to determine that Petitioner was born on June 16, 1972, in Santa Ana, California. (Id.)

In November, 2009, the Government obtained Petitioner's certified birth certificate from San Luis Rio Colorado, Sonora, Mexico, bearing the name "Leonardo Tapia Feliz" with a date of birth of June 16, 1072. (Doc. 14-2, at 3.) The certificate lists his mother's name as "Rosa Maria Felix" and his father's name as "Leonardo Tapia-Ambriz." (Id.) Both parents signed the certificate, and two witnesses to their signing also signed the certificate. (Id.) The birth certificate was recorded and registered in San Luis Rio Colorado, Sonora, Mexico, on July 24, 1972, approximately five weeks after Petitioner's birth. (Id.) The Government also obtained a Mexican National Registration Card, issued on September 10, 2000, bearing the name Leonardo Tapia-Felix. (Doc. 14-2, at 12.) The card lists Tapia-Ambriz's date of birth as June 16, 1972, and reflects that he was born in San Luis Rio Colorado, Sonora, Mexico. (Id.)

On January 13, 2011, immigration officials interviewed Petitioner's mother at her residence and obtained a three-page sworn statement written in the Spanish language. (Doc. 14-2, at 48-59.) Petitioner's mother stated that her son, Petitioner, was born in San Luis Rio Colorado, Sonora, Mexico on June 16, 1972, and that the Mexican birth certificate was her son's birth certificate, and that she had signed it. (Id.) She also stated that Petitioner's father had taken her and Petitioner to the United States when Petitioner was 40 days old. (Id.) She admitted that she had told Petitioner when he was fifteen years old that he was born in Mexico and not a United States citizen. (Id.) She also admitted that she had signed the Delayed Registration at an attorney's office in Santa Ana, California at the request of Petitioner's father. (Id.)

On February 15, 2012, the United States Department of State ("DOS") sent a letter to Petitioner revoking his United States passport, informing Petitioner that the discovery of his the timely-filed Mexican birth certificate coupled with his mother's statement regarding his place of birth, warranted revocation of his passport, and instructing Petitioner to surrender his passport to he DOS. (Doc. 14-2, at 61.) On July 31, 2012, Petitioner was apprehended by immigration officials at the Arizona Department of Corrections and placed in removal proceedings by the filing of a Notice to Appear ("NTA") charging him with being present in the United States without being admitted or paroled by an immigration officer, in violation of 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). (Id., at 17, 64.) Petitioner was ordered detained by the Department of Homeland Security Official. (Doc. 14-3, at 16.) On August 3, 2013, Petitioner, through counsel, submitted the following documents in support of his claim of United States citizenship in bond redetermination and removal proceedings; a copy of his Delayed Registration, a copy of his passport, a copy of his Social Security card; and a Baptismal Certificate. (Doc. 14-2, at 67-77; 14-3, at 1-12.)

A hearing commenced before the Immigration Judge ("IJ") on Petitioner's claim of United States citizenship on September 21[3], and continued on October 12, 2012. On November 30, 2012, the IJ rendered her 21-page (single spaced) written decision. (Doc. 14-3, at 18-38.) The IJ considered, in rendering her decision, the testimony of Petitioner's mother Rosa Marie Felix, and Homeland Security investigators Special Agents ("SA") Brian Wakefield and Michael Quirk. (Id., at 19.) The IJ also admitted and considered, in pertinent part, the following documents: (1) Petitioner's Exhibit 2, attachments A-D, which consisted of the Delayed Registration of Petitioner's birth in California, a copy of Petitioner's passport, a copy of Petitioner's Social Security card, a delayed baptismal certificate, a document from the Sonoran Office of Vital Statistics, a letter from Adelina Tapia, and a transcript of the testimony of Veronica Cruz (Doc. 14-3, at 35); (2) the following attachments to Government's Exhibit 6, (a) Petitioner's Mexican birth certificate, (b) SA Wakefield's investigative report, (c) 2009 authenticated I-213 form, Record of Deportable/Inadmissible Alien, (g) 2012 ...


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