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Shahzad v. Gurule

United States District Court, D. Arizona

February 4, 2014

Mehar Khurram Shahzad, Petitioner,
v.
John Gurule, Field Office Director, Arizona, Respondent.

REPORT AND RECOMMENDATION UPON REMAND

MARK K. ASPEY, Magistrate Judge.

Procedural background

On June 11, 2013, Mr. Mehar Shahzad ("Petitioner"), who is pro se in this matter, filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief pursuant to 28 U.S.C. § 2241, alleging his continued detention by Respondent without a bond hearing violated federal law and his constitutional rights. Petitioner was a Lawful Permanent Resident ("LPR") of the United States, detained at the Pinal County Jail, who is under a final order of removal to Pakistan; Petitioner is a native and citizen of Pakistan. Petitioner was ordered removed from the United States because he was found to be an alien convicted in 2009 of an aggravated felony and a crime of violence, and because he had been convicted of the murder, rape, or sexual abuse of a minor.

Respondent filed a Response in Opposition to Petition for Habeas Corpus (Doc. 11) on August 19, 2013. Petitioner filed a reply (Doc. 12) to the response on September 12, 2013. On September 24, 2013, the Magistrate Judge issued a Report and Recommendation recommending that the petition be denied because Petitioner was not entitled to relief pursuant to section 2241. Although Petitioner had, at that time, been detained for two months beyond the presumptively reasonable post-removal period, he had not established that his detention was potentially indefinite such as to implicate his right to due process. See Doc. 13.

Petitioner docketed objections to the Report and Recommendation. See Doc. 15. On December 19, 2013, the Court adopted the Report and Recommendation in full. See Doc. 21. The Court further remanded the matter to the Magistrate Judge for consideration of Petitioner's assertion that he was entitled to a hearing before an Immigration Judge regarding his eligibility for release from detention on bond pending his removal to Pakistan. See Doc. 21. On December 27, 2013, the copy of the Court's order at Doc. 21 which was mailed to Petitioner was returned to the Court as undeliverable because Petitioner had been released from detention. See Doc. 22. Accordingly, on January 7, 2014, the Magistrate Judge gave Respondent until January 24, 2014, to notify the Court as to Petitioner's custody status and place of custody, and to notify the Court as to whether Respondent contends Petitioner is or is not entitled to a custody hearing before an Immigration Judge or whether this matter had been rendered moot. See Doc. 23.

Petitioner filed a document on January 10, 2013, notifying the Clerk of the Court that Respondent had attempted to remove him from the United States but that he had been returned to custody in the Pinal County Jail, and asking the Clerk to consider his document as a "motion for continuance." The pleading appears to ask the Magistrate Judge to, on remand, "order a bond hearing". Doc. 24.

On January 24, 2014, in timely response to the Court's order at Doc. 23, Respondent filed a status report. See Doc. 26. Respondent avers that, on October 1, 2013, after the Magistrate Judge issued his Report and Recommendation but before it was adopted by the Court, Petitioner requested a bond hearing before the Immigration Court. Respondent further alleges:
On October 17, 2013, the Immigration Judge conducted a bond hearing pursuant to Rodriguez v. Robbins (Rodriguez II) , 715 F.3d 1127 (9th Cir. 2013), and ordered that Petitioner be held at no bond, finding that he poses a danger to the community and flight risk. Immigration Judge's Order, October 17, 2013, Exhibit 2; Memorandum Order, November 7, 2013, Exhibit 3.
On October 28, 2013, Petitioner filed a Notice of Appeal with the Board of Immigration Appeals ("BIA"). Board of Immigration Appeals Inquiry System printout, Exhibit 4. The BIA dismissed this appeal on January 15, 2014. Decision of the Board of Immigration Appeals, January 15, 2014, Exhibit 5.
On November 7, 2013, Pakistan issued a travel document for Petitioner. The document was valid from November 6, 2013 to January 5, 2014. Declaration from Deportation Officer, K. Estepa ("Dec. of K. Estepa"), Exhibit 6, ¶ 6. The Department scheduled Petitioner's removal to Pakistan for December 17, 2013. Dec. of K. Estepa, Exhibit 6, ¶ 5.

Doc. 26 at 2.

Respondent further asserts:

On December 17, 2013, Petitioner exited the United States in the custody of a removal team from the Department of Homeland Security. Dec. of K. Estepa, Exhibit 6, ¶ 7. On December 18, 2103, Petitioner and the removal team missed the connecting flight from Istanbul, Turkey, to Islamabad, Pakistan. The removal team and Petitioner did not have authorization to lawfully remain in Turkey long enough to board the next available flight to Pakistan. The removal team and Petitioner therefore returned to the United States. Dec. of K. Estepa, Exhibit 6, ¶ 8. On December ...

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