United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Petitioner Gabriel Flores-Delgado
(Petitioner)’s Second Amended Petition for Writ of
Habeas Corpus (Doc. 18), filed pursuant to 28 U.S.C. §
2241. Also pending before the Court is Petitioner’s
Motion for Expedite[d] Release (Doc. 27), Motion for Bond
Hearing (Doc. 36), Motion for Status (Doc. 37), and Motion
for Decision Under 60 Day Rule (Doc. 38). The Magistrate
Judge to whom this case was assigned issued a Report and
Recommendation (R&R) recommending that Petitioner’s
Second Amended Petition for Writ of Habeas Corpus and Motion
for Expedited Release be denied. (Doc. 29). Petitioner filed
an Objection (Doc. 34) and a Second Amended Objection (Doc.
35) to the R&R.
STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge’s findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original); see also 28
U.S.C. § 636(b)(1) (stating that “the court shall
make a de novo determination of those portions of the report
[and] recommendations to which objection is made”).
Because Petitioner appears to have objected to each of the
R&R’s recommendations, the Court will review those
R&R sets forth the relevant background information
underlying this case. See (Doc. 29 at 1-7, 10). To
the extent neither party appears to dispute the
R&R’s procedural nor factual background, the Court
will adopt the said account below as the basis for its review
of Petitioner’s motions and objections. The R&R
On April 14, 2010, the Circuit Court of the State of Oregon,
Marion County, convicted Petitioner of Sexual Abuse in the
Second Degree. (Doc. 25, Ex. 1, Baeza Decl. at ¶ 6;
Attachment B.) On April 15, 2010, Petitioner was taken into
the custody of U.S. Immigrations and Customs Enforcement
(ICE) and issued a Notice to Appear (NTA), alleging that
Petitioner was removable under Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act (INA), 8 U.S.C. §
1182(a)(6)(A)(i), as an alien present in the United States
without being admitted or paroled, or who arrived in the
United States at any time or place other than designated by
the Attorney General. (Doc. 25, Ex. 1, Baeza Decl. at ¶
7, Attachment C.)
On August 11, 2011, Petitioner failed to appear for a hearing
that was scheduled before an [Immigration Judge (IJ)] in
Seattle, Washington and was ordered removed to Mexico in
absentia. (Id., Attachment E.) On August 27, 2011,
ICE removed Petitioner to Mexico based on his final order of
removal. (Doc. 25, Ex. 1, Baeza Decl. at ¶ 11.)
On October 21, 2011, Petitioner filed a motion to reopen the
removal proceeding arguing that he failed to appear at the
August 11, 2011 hearing because he was in custody pursuant to
a bench warrant. (Id. at ¶ 12, Attachment F.)
On November 8, 2011, an IJ granted Petitioner’s motion
to reopen that proceeding. (Id. at ¶ 13,
Attachment G.) . . .
On March 9, 2012, Petitioner re-entered the United States at
or near Sasabe, Arizona, without inspection or parole by an
immigration officer. (Id. at ¶ 14.) On March
11, 2012, Petitioner was detained and issued a Notice of
Intent/Decision to Reinstate Prior Order of Removal.
On July 30, 2012, Petitioner was convicted in the United
States District Court for the District of Arizona of
violating 19 U.S.C. § 1459(e)(1), Failure to Enter into
the United States at a Designated Border Crossing Point.
(Id. at ¶ 15, Attachment H.) Petitioner was
released to ICE custody in Florence, Arizona, pursuant to an
immigration detainer. (Doc. 25, Ex. 1 Baeza Decl. at ¶
15.) On September 17, 2012, Petitioner appeared before an IJ
who reset the case to November 5, 2012. (Id. at
On October 19, 2012, DHS filed Additional Charges of
Inadmissibility/Deportability, charging Petitioner as
removable under INA § 212(a)(2)(A)(i)(I), 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), for having been convicted of a
crime involving moral turpitude. (Id. at ¶ 18,
Attachment I.) On November 29, 2012, the IJ sustained the
additional charge of removability and found Petitioner
ineligible to apply for cancellation of removal.
(Id. at ¶ 19.) The IJ also denied voluntary
departure and ordered Petitioner removed to Mexico.
(Id., Attachment J.) Petitioner reserved his right
to appeal, and filed a timely appeal with the Board of
Immigration Appeals (BIA) . . . .
On October 18, 2013, Petitioner filed a petition for review
of the BIA’s September 23, 2013 decision [of removal]
in the Ninth Circuit in Case No. 13-73691. (Doc. 25, Ex. 1,
Baeza Decl. at ¶ 31.) The Ninth Circuit granted
Petitioner a temporary stay of removal while his petition for
review remained pending. (Id., Attachment T)
On June 18, 2013, Petitioner filed another petition for
review with the Ninth Circuit in Case No. 13-72155. (Doc. 25,
Ex. 1, Baeza Decl. at ¶ 23, Attachment O.) This appeal
is currently pending a decision. (Id.) (footnote
omitted). On March 19, 2014, the Ninth Circuit combined
Petitioner’s petitions for review in Case Nos. 13-72155
and 13-73691. (Doc. 25, Ex. 1, Baeza Decl. at ¶ 35.) A
temporary stay of removal is still in effect. (Id.)
. . .
On July 12, 2013, Petitioner’s custody status was
reviewed and it was determined that he should remain in
custody. (Doc. 25, Ex. 1, Baeza Decl. at ¶ 26.) On July
14, 2013, a Post Order Custody Review was conducted.
(Id. at ¶ 27.) On July 24, 2014 [sic], it was
determined that Petitioner should remain in custody.
(Id.) (footnote omitted).
On October 4, 2013, Petitioner had a bond hearing before an
IJ in Florence, Arizona. (Id. at ¶ 30.) That
same date, the IJ denied Petitioner’s request for a
change in custody based on his conclusion that Petitioner
represented a danger to the community and a flight risk.
(Id. at ¶ 30, Attachment S.) Petitioner
reserved his right to appeal. (Id.) On October 23,
2013, Petitioner timely appealed the IJ’s October 4,
2013 decision to the BIA. (Id. at ¶ 32.)
Petitioner had another bond hearing in November 2013 before
an IJ in Florence, Arizona. (Id. at ¶ 33,
Attachment U.) In a November 15, 2013 decision, that was
filed on November 18, 2013, the IJ denied Petitioner’s
request for bond based on his finding that Petitioner was a
danger to the community and a flight risk. (Id. at
¶ 33, Attachment U; Doc. 25, Ex. 2.) On February 7,
2014, the BIA affirmed the IJ’s November 18, 2013
decision. (Doc. 25, Ex.1, Baeza Decl. at ¶ 34,
On April 25, 2014, Petitioner’s custody was reviewed by
an IJ in Florence, Arizona. His request for bond was denied
based on the IJ’s conclusion that Petitioner was a
danger to the community and a flight risk. (Doc. 25, Ex. 1,
Baeza Decl. at ¶ 36, Attachment W.) On May 14, 2014,
Petitioner appealed the IJ’s decision denying him bond
to the BIA. (Id. at ¶ 38.) On December 19,
2014, the BIA adopted and affirmed the IJ’s April 25,
2014 order denying Petitioner’s request for a change in
custody status. (Id. at ¶ 40, Attachment X.) In
its decision, the BIA agreed with the IJ that Petitioner
failed to present materially changed circumstances since the
prior bond order, and that he remained both a danger to the
community and a flight risk. (Doc. 25, Attachment X.)
On January 12, 2015, Petitioner’s custody status was
reviewed by an IJ in Florence, Arizona. (Doc. 25, Ex. 1,
Baeza Decl. at ¶ 41.) That same day, the IJ
denied Petitioner’s request for bond based on his
finding that Petitioner was a danger to ...