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Flores-Delgado v. Lynch

United States District Court, D. Arizona

May 17, 2016

Gabriel Flores-Delgado, Petitioner,
v.
Loretta Lynch, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending 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.[1]

         I. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

         The 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 de novo.

         II. BACKGROUND

         The 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 states:

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. (Id.)
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 ¶ 17.)
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) (footnote omitted).
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.[2] (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, Attachment V.)
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 ...

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