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Pianka v. De Rosa

United States District Court, D. Arizona

December 19, 2016

Victor Pianka, Petitioner,
v.
Charles De Rosa, Respondent.

          ORDER

          David G. Campbell United States District Judge

         On October 1, 2014, Petitioner Victor Pianka filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C § 2241. Doc. 1. On October 13, 2016, Magistrate Judge Michelle Burns issued a report and recommendation (“R&R”) that the Court dismiss the petition under the doctrine of prudential exhaustion. Doc. 43. Petitioner filed objections (Doc. 47), and Respondents did not file a response. For the reasons set forth below, the Court will adopt Judge Burns's recommendation.

         I. Background.

         Judge Burns provided the following summary of Petitioner's administrative proceedings and habeas corpus petition:

Petitioner, a native of Poland and lawful permanent resident, was taken into ICE custody on June 7, 2013 and placed in removal proceedings under Section 240 of the Immigration and Nationality Act (“INA”). (Doc. 41.) Petitioner was issued a Notice to Appear, alleging that he is deportable because he is a citizen of Poland, not a citizen of the United States, and on July 18, 2012, he was convicted of possession of drug paraphernalia in Maricopa County Superior Court. (Id.)
On December 30, 2013, Petitioner appeared for a bond hearing before an Immigration Judge (IJ). Petitioner testified that he had obtained United States citizenship through his father, Adam Kostewicz, and that the record before the court showing that Mr. Kostewicz was neither his biological father nor his adoptive father was based on “fraudulent findings.” (Id.)
The IJ found that “based on the evidence of record, [Petitioner] ha[d] not met his burden” of establishing that he had derived citizenship from Mr. Kostewicz or from Petitioner's biological mother, who had naturalized after Petitioner's 18th birthday. (Id.)
Most recently, on July 25, 2016, Respondents submitted a status report to update the Court regarding Petitioner's current custody status. (Doc. 42.) Respondents state that a bond hearing was conducted on May 11, 2016 pursuant to Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). Petitioner was represented at the hearing by an appointed qualified representative. The IJ set Petitioner's bond at $35, 000. Petitioner has not yet posted bond and is still in ICE custody. Petitioner, through his appointed qualified representative, has appealed the IJ's bond determination to the Board of Immigration Appeals (“BIA”). Briefs were due to the BIA on August 1, 2016.
Regarding Petitioner's removal status, Respondents state that Petitioner was previously ordered removed. Petitioner was then appointed counsel, appealed the removal order, and requested that the removal case be remanded to the IJ to be re-litigated with the assistance of counsel. The BIA granted the motion to remand on October 31, 2014, and the removal and relief case was reheard on various dates from December 17, 2014 through June 12, 2015. Petitioner was represented by his appointed qualified representative during the remanded proceedings. On September 1, 2015, the IJ denied all relief and ordered Petitioner removed. Petitioner appealed to the BIA. The appeal has been fully briefed and is awaiting the BIA's decision.
In his Petition for Writ of Habeas Corpus, Petitioner argues that under Flores-Torres v. Mukasey, ICE lacks jurisdiction to detain him as an alien. See Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008). Specifically, Petitioner argues that under Flores-Torres, ICE lacks jurisdiction to detain him as an alien because he acquired derivative citizenship through his stepfather, Adam Dostewicz, whom Petitioner asserts is his birth father.

Doc. 43 at 1-3.

         A. Petitioner's Objections to the Characterizations of His Case.

         Petitioner makes several objections to Judge Burns's description of his case. First, he argues that Judge Burns “only mentions that he brought the claim of citizenship through his father and then mentions that the IJ made a finding. . . . omit[ing] that Petitioner had a claim of citizenship through three ways but that the IJ only determined two of them.” Doc. 47 at 1. Petitioner appears to be alleging that Judge Burns incorrectly represents that the IJ considered Petitioner's claims. See also Id. at 4. Additionally, Petitioner objects to Judge Burns mentioning “that Respondent's Status Update attempts to detail petitioner's bond status and about appointed counsel . . . because bond is irrelevant to the fact that petitioner is a United States Citizen in Immigration detention[, ]” and because Petitioner's counsel has an alleged “conflict of interest.” Id. at 2.[1] Whether the IJ adequately considered all of Petitioner's claims and whether Petitioner's appointed counsel in his administrative hearings has a conflict of interest are not issues before this Court. Rather, these are issues that Petitioner may raise before the BIA and on appeal to the Ninth Circuit once the BIA has made a final determination in his case.[2]

         The only issue before this Court is whether it should exercise jurisdiction over Petitioner's claim, and, if so, whether Petitioner's claim that he is a U.S. citizen has merit. To the extent that Petitioner's citizenship is being actively considered in separate administrative hearings, the existence and status of these hearings are relevant to the Court's decision. Additionally, as an individual must be in custody in order to bring a habeas petition, Petitioner's bond ...


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