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Aduord v. Lynch

United States District Court, D. Arizona

October 26, 2015

Rebham Pero Aduord, Petitioner,
v.
Loretta E. Lynch, et al., Respondents.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, Magistrate Judge.

Petitioner Rebham Pero Aduord, through counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention by the Department of Homeland Security (DHS) during removal proceedings. (Doc. 1.) Petitioner seeks a bond redetermination hearing. (Doc. 1 at 8.) Respondents (the government) filed a response arguing that Petition should be dismissed for lack of jurisdiction and for failure to state a claim. (Doc. 14.) Petitioner has not filed a reply, and the time to do so has passed. For the reasons set forth below, the Petition should be denied.

I. Background

Petitioner is a native and citizen of Kenya. (Doc. 1 at 2.) Petitioner asserts that he entered the United States on or about May 28, 2011 as a lawful permanent resident. ( Id. ) On January 14, 2014, Petitioner was convicted in the Maricopa County Superior Court of endangerment and driving under the influence of intoxicating liquor, and was sentenced to four months in jail and two years' probation. ( Id. ) On December 5, 2011, DHS placed Petitioner in removal proceedings and issued a Notice to Appear (NTA) charging him with removability pursuant to section 237(a)(2)(A)(i) of the Immigration and Nationality Act (Act or INA), 8 U.S.C. § 1227(a)(2)(A)(i), because within five years of admission, Petitioner was convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed. (Doc. 1 at 2.)

On July 9, 2014, an Immigration Judge (IJ) found that Petitioner was a danger and a flight risk and denied bond. ( Id.; Doc. 14-1 at 1.) On August 21, 2014, Petitioner, proceeding pro se, appeared before an IJ and filed an application for relief from removal. ( Id. ) The IJ set the case for an individual hearing on January 13, 2015. ( Id. ) On or about November 25, 2014, Petitioner, through counsel, filed a request for a bond redetermination hearing under Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). ( Id. at 3.) On December 10, 2014, the IJ denied the motion for a bond redetermination without conducting a hearing. ( Id. )

On January 8, 2015, the IJ granted Petitioner's motion to continue, and reset the final hearing to May 18, 2015. ( Id. ) At the May 18, 2015 hearing, Petitioner submitted an amended I-589 application for relief from removal. ( Id. ) Over Petitioner's objection, the IJ continued the hearing to January 13, 2016, stating that the continuance was necessary to permit the IJ to review the changes to Petitioner's application for relief from removal. ( Id. ) Respondents state that the IJ subsequently reset the hearing to September 21, 2015. (Doc. 14 at 3.) Petitioner has not filed a reply and has not clarified the status of his hearing date. Because Respondents have not presented any evidence to substantiate that the hearing was reset to September 21, 2015, the Court assumes that Movant remains in DHS custody awaiting a hearing.

On July 2, 2015, Petitioner filed the pending Petition arguing that his continued detention violates the Due Process Clause. (Doc. 1.) The government argues that the Court should dismiss the Petition because Petitioner has not named the proper respondent, he failed to exhaust his administrative remedies, his request for bond redetermination is moot because he already had a bond hearing, and his detention is not improper. (Doc. 14.)

II. Proper Respondent

Petitioner brings his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, which extends habeas relief to persons, "in custody under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1). Under 28 U.S.C. § 2243, a writ of habeas corpus must be "directed to the person having custody of the person detained." 28 U.S.C. § 2243; see also, 28 U.S.C. § 2242 (a petition for writ of habeas corpus must "name the person who has custody over" the petitioner). If the petition fails to name the petitioner's custodian as the respondent, the court lacks personal jurisdiction over the custodian and cannot grant relief. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973) ("The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.").

The Petition names six respondents: Loretta Lynch, the Attorney General of the United States; Jeh Johnson, the Secretary of DHS; Sarah Saldana, the Director of U.S. Immigration and Customs Enforcement (ICE); Thomas Homan, the Executive Associate Director of U.S. Immigrations Customs Enforcement and Removal Operations; John Gurule, the Director of the Arizona ICE Field Office; and Thomas Giles, the Deputy Director of the Arizona ICE Field Office. (Doc. 1 at 1.) The government argues that in a habeas petition challenging physical confinement the only proper respondent is the warden of the facility housing the prisoner. (Doc. 14 at 5.) The government cites the "immediate custodian rule" of Rumsfeld v. Padilla, 542 U.S. 426 (2004), and contends that Michael Donohue, the warden at the Eloy Detention Center, is the only proper respondent. ( Id. ) Donohue was not named in the Petition, therefore, the government seeks to dismiss the Petition on the ground that it does not name the proper respondent. (Doc. 14 at 4.)

In Rumsfeld v. Padilla, 542 U.S. 426 (2004), the Supreme Court held that the proper respondent to a habeas petition challenging a petitioner's present physical confinement is "the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Id. at 435. However, the Court expressly declined to resolve whether this rule, known as the "immediate custodian rule, " applies to petitions filed by aliens detained pending removal. Id. at 435 n.8.

Prior to Padilla, the Ninth Circuit Court of Appeals held that that the Attorney General and the Secretary of Homeland Security were proper respondents to an immigration detainee's § 2241 petition. Armentero v. Immigration and Naturalization Serv., 340 F.3d 1058, 1073 (9th Cir. 2003) ( Armentero I ). The court declined to apply the "immediate custodian rule, " concluding that "the most appropriate respondent to petitions brought by immigration detainees is the individual in charge of the national government agency under whose auspices the alien is detained." Id. at 1071. However, after the Supreme Court decided Padilla, the Ninth Circuit granted a petition for rehearing in Armentero and withdrew its original opinion. By the time the case was decided, the petitioner had absconded and, therefore, the court dismissed the action on other grounds. Armentero v. Immigration and Naturalization Serv., 412 F.3d 1088, 1088 (9th Cir. 2005) ( Armentero II ). Nevertheless, Judge Berzon, in dissent, indicated that she would reaffirm the holding in Armentero I. Armentero II, 412 F.3d at 1090; see also Rivera v. Holder, ___ F.R.D. ___, 2015 WL 1632739, at *2 n.1 (W.D. Wash. Apr. 13, 2015) (declining to apply "immediate custodian rule" in immigration context); Bogarin-Flores v. Napolitano, 2012 WL 3283287, at *2 (S.D. Cal. Aug. 10, 2012) (same). There is no other Ninth Circuit authority addressing this specific issue.

Accordingly, in the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General and the Secretary of Homeland Security as respondents in this matter, the Court will not recommend dismissal of the Petition on that basis. However, the Court recommends that Respondents Saldana, Homan, Gurule, and Giles be ...


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