United States District Court, D. Arizona
HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's Amended
Petition for Writ of Habeas Corpus (the "Amended
Petition") pursuant to 28 U.S.C. § 2241 (Doc. 21)
and the Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Bridget S. Bade
(Doc. 23). Respondent filed an Answer to Amended Petition
(Doc. 22) and argues that Petitioner's claims for relief
should be denied.
is a native and citizen of Mexico who, sometime after March
2007, entered the United States without permission. (Doc. 23
at 1). Upon completion of proceedings in the Immigration
Court, Petitioner was removed from the United States on
November 23, 2011. (Doc. 23 at 2). Petitioner subsequently
re-entered the United States in January 2015 and was
apprehended by United States Border Patrol agents.
(Id.). After demonstrating a reasonable fear of
persecution or torture if returned to Mexico, Petitioner was
referred to an Immigration Judge to seek withholding of
removal and relief under the Convention Against Torture.
(Id.). Petitioner has been in custody during the
pendency of the withholding of removal proceedings.
(Id.). On September 7, 2016, the Immigration Judge
held a hearing but denied relief on the merits of
Petitioner's claims for withholding of removal and relief
under the Convention Against Torture. (Id. at 3).
Petitioner appealed the decision to the Board of Immigration
Appeals (“BIA”) and that appeal is pending.
raises four grounds for relief in her Amended Petition. (Doc.
23 at 3). In Ground One, Petitioner challenges the underlying
order of removal, claiming that she should not have been
subject to removal based on a prior criminal conviction.
(Id.). In Grounds Two, Three, and Four, Petitioner
challenges the decision to keep her in custody while her
appeal to the BIA is pending. (Id.). She claims that
her continued detention violates her right to due process,
and that she is not a flight risk or danger to the community.
(Id.). Petitioner therefore seeks release from
custody and dismissal of her removal proceedings.
(Id. at 3-4).
Bade recommends that Ground One be dismissed because the
district court is without jurisdiction to review a final
order of removal. (Doc. 23 at 4). As Judge Bade explains, the
exclusive means for judicial review of an order of removal is
through the court of appeals. See 8 U.S.C. §
1252(a)(5). This Court therefore lacks habeas jurisdiction to
review Petitioner's removal order. See Iasu v.
Smith, 511 F.3d 881, 888 (9th Cir. 2007). The
Court agrees with Judge Bade's analysis and
recommendation. Ground One will therefore be dismissed for
lack of jurisdiction.
Grounds Two through Four, Judge Bade determined that
Petitioner is detained pursuant to 8 U.S.C. § 1231(a).
Applying the decision in Diouf v. Napolitano, 634
F.3d 1081 (9th Cir. 2011) in which the Ninth
Circuit addressed prolonged detention under that statute, and
several other decisions in this circuit that followed
Diouf, Judge Bade concluded that Petitioner is
entitled to a bond hearing. After reviewing Judge Bade's
analysis, this Court agrees with Judge Bade's
Bade advised the parties that they had fourteen days to file
objections and that the failure to file timely objections
"may result in the District Court's acceptance of
the Report and Recommendation without further review.”
(Doc. 23 at 7) (citing United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc)). Petitioner filed an Objection
(Doc. 24) on May 22, 2017. Her only objection, however, is to
certain information in the factual background provided in the
R&R. Specifically, Petitioner claims she was not arrested
by the Border Patrol in 2007, among other factual disputes.
does not object to Judge Bade's analysis and
recommendation to dismiss Ground One but grant relief under
the remaining counts. Absent any objections with respect to
those recommendations, the Court is not required to review
them. See Thomas v. Arn, 474 U.S. 140, 149 (1989)
(The relevant provision of the Federal Magistrates Act, 28
U.S.C. § 636(b)(1)(C), “does not on its face
require any review at all . . . of any issue that is not the
subject of an objection.”); Reyna-Tapia, 328
F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.”). Nonetheless, as noted above, the Court
has reviewed Judge Bade's analysis and agrees with her
recommendations. The Court will, therefore, accept the
R&R and grant the Amended Petition in part. See
28 U.S.C. § 636(b)(1)(C) (“A judge of the court
may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.”); Fed.RCiv.P. 72(b)(3) (same).
IT IS ORDERED that Magistrate Judge Bade's R&R (Doc.
23) is accepted and adopted as the order of this Court.
FURTHER ORDERED that the Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (Doc. 21) is GRANTED
to the extent that Petitioner is entitled to a bond hearing
pursuant to Diouf v. Napolitano,634 F.3d 1081
(9th Cir. 2011). A bond hearing before an