Garcia-Felician v. Whitaker

          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 ...