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Em v. Whitaker

United States District Court, D. Arizona

December 19, 2018

La Em, Petitioner,
v.
Matthew Whitaker, et al., Respondents.

          ORDER

          DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE

         Petitioner La Em, who is detained in the CoreCivic Central Arizona Florence Correctional Complex in Florence, Arizona, [1] has filed, through counsel, an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 13) and an Amended Motion for Preliminary Injunction (Doc. 14). As explained below, the Amended Motion will be denied in part (to the extent it seeks removal-related relief) and Respondents will be called to answer the Amended Petition, and respond to the Amended Motion, as to Petitioner's remaining detention-related claims.

         I. Background

         Petitioner is a native and citizen of Thailand, born to Cambodian parents in a Thai refugee camp. (Doc. 9-2 at 2-3.) On August 10, 1984, Petitioner was admitted to the United States as a refugee in Seattle, Washington. (Docs. 9-2 at 2-3; 1-3; 9-2 at 5-7.) His status was adjusted to that of a lawful permanent resident on December 17, 1987. (Docs. 1-3; 9-2 at 5-7.) On June 11, 2002, Petitioner was convicted in the Pima County Superior Court, No. CR-2002-0741, of three counts of child abuse in violation of Ariz. Rev. Stat. § 13-3623(A)(2) and sentenced to five years' imprisonment. (Docs. 1-2 at 15-19; 1-3; 9-2 at 9-12.)

         On December 15, 2005, Petitioner was detained in the custody of the United States Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and was issued a Notice to Appear (NTA) the following day. (Docs. 1-3; 9-2 at 5-7, 16-17.) The NTA charged Petitioner as removable from the United States as an admitted alien who had been convicted of an aggravated felony. (Doc. 1-3.) Petitioner conceded the charge of removability and, on January 3, 2006, an immigration judge ordered him removed to Cambodia, or in the alternative, to Thailand. Petitioner waived appeal. (Doc. 9-2 at 19-20.) On April 4, 2006, the Office of Detention and Removal Operations (DRO) Phoenix Field Office Director issued a Release Notification and Decision of Post Order Custody Review (Doc. 9-2 at 22-23) advising Petitioner that he would be released from custody under an Order of Supervision “pending [his] removal from the United States.” (Docs. 1-2 at 3; 9-2 at 22-23.)

         On October 6, 2017, DHS sent Petitioner a Call-In Letter requesting that he appear at the United States Citizenship and Immigration Services (USCIS) Field Office in Tucson, Arizona for an interview on October 16, 2017. (Doc. 9-2 at 25.)

         On September 12, 2018, Petitioner was apprehended at work and taken into custody by the Tucson Enforcement and Removal Office (ERO) Fugitive Operations Team. (Docs. 13 ¶ 40; 1-2 at 13; 9-2 at 27-28.) The same day, ERO issued a Notice of Revocation of Release (Doc. 9-2 at 30-31) advising Petitioner, pursuant to 8 C.F.R. § 241.13(i)(3), that “on account of changed circumstances, ” ICE had “determined that there is a significant likelihood of removal in the reasonably foreseeable future in [his] case, ” and that he would “remain in ICE custody at this time.”

         On October 12, 2018, Petitioner was served with a Notice to Alien of File Custody Review (Doc. 1-2 at 11) notifying him that ICE would conduct a review of his custody status on December 11, 2018. A temporary travel document was issued by the Cambodian government on October 25, 2018 (Doc. 9-2 at 33), and Petitioner was advised by detention officials that he would be deported by Christmas 2018 (Doc. 13 ¶ 5).

         On November 21, 2018, Petitioner, through counsel, filed a motion with the Florence Immigration Court to stay his removal and reopen his removal proceedings, arguing that under intervening case law, his conviction did not qualify as a crime of violence and he is no longer removable as a matter of law. (Doc. 1-2 at 2-8.)

         On November 30, 2018, Petitioner filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 2) with this Court. The Motion asked the Court to “enjoin Respondents from detaining or removing him unless and until the immigration court has adjudicated his motion to reopen removal proceedings.” (Doc. 2 at 3.)

         On December 4, 2018, the Court granted a temporary stay of removal pending a hearing on the Motion, called Respondents to respond to the Motion and answer the Petition, and authorized Petitioner to file a reply. (Doc. 6.) The Court also scheduled a hearing on the Motion for December 18, 2018. (Id.)

         On December 11, 2018, Respondents filed their response. (Doc. 9.) In this pleading, Respondents advised the Court that on December 3, 2018, the immigration court had granted Petitioner's request for a stay of removal “while the court considers [his] motion to reopen.” (Doc. 9-2 at 35.) Respondents further argued that (1) under the REAL ID Act of 2005, “[t]his Court lacks jurisdiction to enjoin Petitioner's removal, ” and (2) the immigration court's issuance of a stay meant that “Petitioner's request to stay his removal is moot.” (Doc. 9 at 3-5.)

         On December 12, 2018, Petitioner requested a one-day continuance of the hearing on the Motion. (Doc. 10.) The Court granted this request and specifically encouraged Petitioner, in his reply, to address the mootness issue. (Doc. 11.)

         Petitioner did not file a reply. Instead, on December 14, 2018, Petitioner filed an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 13) and an Amended Motion for Preliminary Injunction (Doc. 14). As a result, the Court vacated the hearing on the Motion. (Doc. 16.)

         II. Amended Petition

         In his Amended Petition, Petitioner names United States Acting Attorney General Matthew Whitaker, DHS Secretary Kirstjen Nielsen, ICE Deputy Director and Acting Director Ronald Vitiello, and ICE Phoenix Field Office Director Enrique Lucero ...


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