United States District Court, D. Arizona
HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Michelle H. Bums United States Magistrate Judge
BACKGROUND
On
March 14, 2018, Petitioner Jose Alfredo Garcia-Felician filed
a Petition for Writ of Habeas Corpus and Complaint for
Declaratory and Injunctive Relief. (Doc. 1.) Respondents
filed a Response on May 29, 2018. (Doc. 10.) Petitioner has
not filed a Reply.
I.
Administrative and Prior Judicial Proceedings.
Petitioner
is a native and citizen of Mexico, who entered the United
States illegally on or about January 20, 2007. (Exhs. A,
B[1].)
Petitioner asserts that he also entered the United States
without inspection “sometime in June of 1995.”
(Doc. 1 at 5.) Petitioner was arrested on January 21, 2007 by
agents with the United States Border Patrol, after having
been found with six other illegal aliens near Lukeville,
Arizona, and served with a Notice to Appear, Form I-862, and
placed in removal proceedings. (Exhs. B, P at ¶ 7.)
During removal proceedings, on March 7, 2007, Petitioner was
released from custody on a $3, 500.00 bond. (Exhs. C, P at
¶¶ 9, 10.) On December 2, 2008, an immigration
judge denied Petitioner's Application for Cancellation of
Removal. (Exh. D.) Petitioner filed an appeal with the Board
of Immigration Appeals, which was dismissed on July 23, 2009.
(Exh. F.) Petitioner filed a petition for review in the
United States Court of Appeals, which was dismissed and
denied in part on January 16, 2013. (Exh. H.) Petitioner was
given the option pursuant to 8 C.F.R. § 1240.26(I) to
voluntarily depart within thirty days to avoid being deemed
to have departed under order of removal. (Id. at 3.)
The Ninth Circuit issued its mandate on March 12, 2013. (Exh.
I.)
On
February 28, 2013, Petitioner filed a motion to reopen with
the Board of Immigration Appeals, which was denied on April
29, 2013. (Exh. J.) On October 27, 2017, ICE issued a Notice
to Obligor to Deliver Alien, directing Petitioner to report
to its Phoenix Field Office on November 27, 2017. (Exh. K.)
Petitioner reported as directed, and filed a Form I-246,
requesting a six-month stay of removal so that he could
“either sell or set up the rental of [his] home.”
(Exh. L.) On December 14, 2017, Petitioner's application
was denied. (Id.) Petitioner was issued another
notice to appear, directing that he report on March 14, 2018,
to the Phoenix ICE field office for removal. (Exh. M.) On
February 16, 2018, however, Petitioner filed a Form I-918,
Application for U-Nonimmigrant Status (“U” visa),
and Form I-192, Application for Advance Permission to Enter
as a Nonimmigrant. (Exhs. N, P at ¶ 23.)
On
March 14, 2018, Petitioner filed a second Application for
Stay of Deportation or Removal, based upon his filing of an
application for a “U Visa, ” which was granted
for a period of six months on April 27, 2018. (Exh. O.) That
period of time has expired and no application to extend has
been filed. (Doc. 13.) Petitioner's Application for
U-Nonimmigrant status is still pending, and the current
processing time for such petitions is 50 months.
(Id.)
II.
Habeas Proceedings.
On
March 14, 2018, Petitioner filed a Petition for Writ of
Habeas Corpus and Complaint for Declaratory and Injunctive
Relief. (Doc. 1.) Petitioner alleges that he is the
“victim of a serious crime and has applied for U
Nonimmigrant Status, ” and that the Court should order
declaratory and injunctive relief “prevent[ing]
Respondents from taking Petitioner into custody and removing
him from the United States, ” as “removal is in
violation of the letter and spirit of the law passed by
Congress to ensure that victims of crimes are available to
assist law enforcement in the prosecution of the offenders
and to protect crime victims.” (Id.)
Petitioner alleges that ten years ago, on January 29, 2008,
he “was a victim of a felonious assault in which an
armed suspect forced him to give up his taxi.”
(Id.) Petitioner does elaborate any further on the
facts of that incident, or indicate if any prosecution
proceedings commenced as a result.
Petitioner
states three grounds for relief: (1) that his substantive due
process rights are violated because the “automatic stay
violates his substantive due process right to liberty because
the regulation permits unilateral government detention
without justification that would outweigh his
constitutionally protected interest in freedom from
government restraint;” (2) that his procedural due
process rights were are violated “because the automatic
stay allows the Government to infringe upon his fundamental
liberty interest in freedom from physical custody with a
process that is not narrowly tailored to serve a state
interest that is neither compelling nor substantially
justified;” (3) that “the Government's
pattern and practice of violating the rights of individuals
similarly situated [] creates the probability of irreparable
injury to those aliens who have prevailed on the merits in
their removal proceedings and yet remain detained
indefinitely.” (Doc. 1.) As relief, Petitioner requests
that the Court order his immediate release, declare that
Petitioner's detention violates the Due Process Clause,
enjoin Respondents from invoking the automatic stay provision
of 8 C.F.R. § 1003.19(i)(2), and award reasonable costs
and attorney's fees. (Id.)
Respondents
assert in their Response that Petitioner's habeas
petition should be denied as (1) there is no present case or
controversy; (2) the Court lacks jurisdiction over the
Petition; and (3) Petitioner's application for a
“U” visa does not prevent his removal. (Doc. 10.)
ANALYSIS
I. Case
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