United States District Court, D. Arizona
G. Campbell United States District Judge
Obed Fuentes-Barnett, A#206-103-051, filed through counsel a
Petition Under 28 U.S.C. § 2241 for a Writ of Habeas
Corpus by a Person in Federal Custody (Doc. 1) and has paid
the $5.00 filing fee. Petitioner shortly thereafter filed a
motion for a temporary restraining order or a preliminary
injunction (“Motion”) (Doc. 5). The Court will
require Respondents Sessions, Kelly, and Lucero to answer the
§ 2241 Petition and a response to the Motion.
Petition, Petitioner names as Respondents: Attorney General
Jeff B. Sessions; Secretary of the Department of Homeland
Security John F. Kelly; Executive Office for Immigration
Review Director Juan P. Osuna; Immigration and Customs
Enforcement (ICE) Phoenix Field Office Director Enrique
Lucero; and United States Immigration Judge (IJ) Richard
is a native and citizen of Mexico. Petitioner most recently
entered the United States on May 20, 2015. In July 2016, DHS
sought to reinstate Petitioner's prior order of removal
under § 241(a)(5) of the Immigration and Nationality Act
(INA). (Doc. 1-1 at 1, Ex. A.) Petitioner expressed fear of
returning to Mexico and was detained by ICE for a Reasonable
Fear Interview by the United States Citizenship and
Immigration Services' Asylum Office, pursuant to 8 C.F.R.
§§ 208.2, 208.30, and 208.31. Reinstatement of
Petitioner's previous removal order was suspended.
Petitioner received a positive reasonable fear determination
and was referred to the Immigration Court in Eloy, Arizona,
where he applied for Withholding of Removal and relief under
the United Nations Convention Against Torture (CAT). An
Individual Calendar Hearing (merits hearing) is scheduled for
July 18, 2017. (Doc. 1-3 at 2, Ex. C.)
January 24, 2017, Petitioner filed a motion for bond
redetermination in the Immigration Court. (Doc. 1-4 at 2-22,
Ex. D.) On January 30, 2017, the Immigration Judge (IJ) found
that “[a]pplicant is in Withholding Only
proceedings” and that the IJ lacked jurisdiction to
consider Petitioner's release on bond. (Doc. 1-5, Ex. E.)
Petitioner remains in DHS custody as a result.
contends that he is in “Withholding-Only
Proceedings” before the Immigration Court and has been
detained longer than six months under the authority of either
8 U.S.C. § 1236(a) or 8 U.S.C. § 1231(a).
Petitioner requested a bond hearing under Rodriguez v.
Robbins (Rodriguez III), 804 F.3d 1060 (9th
Cir. 2015). Petitioner states the IJ denied the request,
“reasoning that the holding in Rodriguez III
does not apply in the District of Arizona and does not apply
to individuals whose prior orders of removal have been
reinstated pursuant to 8 U.S.C. § 1231(a)(5).”
(Doc. 1 at 2.) Petitioner asks that this Court find that
“the holding in Rodriguez III applies to
aliens whose orders have been reinstated under 8 U.S.C.
§ 1231(a)(5), and applies to all aliens detained in the
Ninth Circuit.” (Id. at 3.) Petitioner further
asks the Court to “order Respondents to release
Petitioner, or to provide him with a proper bond
hearing-where the Immigration Judge must consider whether
Petitioner is a danger to the community or flight risk-at the
earliest possible opportunity.” (Id.)
Court will Order Respondents Sessions, Kelly, and Lucero to
answer the § 2241 Petition and respond to the Motion.
Dismissal of Defendants Osuna and Phelps
Rumsfeld v. Padilla, 542 U.S. 426 (2004), the United
States 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.” 542 U.S. at
435. The Supreme Court expressly declined, however, to
resolve whether this rule, known as the “immediate
custodian rule, ” applies to petitions filed by aliens
detained pending deportation. Id. at 435 n.8.
to Padilla, the Ninth Circuit declined to apply the
immediate custodian rule in a § 2241 petition filed by
an immigration detainee. Armentero v. INS, 340 F.3d
1058, 1073 (9th Cir. 2003) (“Armentero
I”). The Ninth Circuit concluded that the Attorney
General and the Secretary of Homeland Security were proper
respondents, stating 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. After Padilla was decided, the
Ninth Circuit granted a petition for rehearing in
Armentero I and withdrew its original opinion.
Armento v. INS, 382 F.3d 1153 (9th Cir. 2004).
Subsequently, the Ninth Circuit dismissed the case on other
grounds because the petitioner had absconded. Armentero
v. INS, 412 F.3d 1088 (9th Cir. 2005)
(“Armentero II”). Judge Berzon, in
dissent, indicated that she would reaffirm the holding in
Armentero I. Armentero II, 412 F.3d at
1090. There is no other Ninth Circuit authority addressing
this specific issue.
absence of any Ninth Circuit authority precluding Petitioner
from naming the Attorney General, the Secretary of Homeland
Security, or the ICE Phoenix Field Office Director as
Respondents, the Court will require these Respondents to
answer the Petition and will not dismiss the Petition for
failure to name a proper respondent at this stage of the
proceedings. See Rivera v. Holder, 307 F.R.D. 539,
544 n.1 (W.D. Wash. 2015) (declining to apply immediate
custodian rule in immigration context and noting that the
Attorney General, Secretary of Homeland Security, and ICE
Field Office Director had been appellants/defendants in a
recent Ninth Circuit case where a habeas petitioner
challenged his bond hearing); Bogarin-Flores v.
Napolitano, 2012 WL 3283287, at *2 (S.D. Cal. Aug. 10,
2012) (finding Attorney General and Secretary of Homeland
Security were proper respondents in § 2241 petition
seeking immediate release from ICE detention). The Court
will, however, dismiss Respondents Osuna and Phelps because
the rationale articulated in Armentero I would not
extend to these Respondents.