(HC) Mudung v. DHO-ICE, No. 1:2018cv00901 - Document 5 (E.D. Cal. 2018)

Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that the Habeas Corpus Petition (Doc. 1 ) be DISMISSED Without Prejudice signed by Magistrate Judge Jennifer L. Thurston on 7/9/2018. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PENAPU MENA MUDUNG, 12 13 14 Petitioner, No. 1:18-cv-00901-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. FINDINGS AND RECOMMENDATION TO DISMISS PETITION DHO - ICE, 15 Respondents. (FOURTEEN-DAY DEADLINE) 16 17 Petitioner, currently in the custody of the Bureau of Immigration and Customs 18 Enforcement (“ICE”) and proceeding pro se, has filed a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2241. Petitioner is challenging his continued detention. FACTUAL SUMMARY 20 21 Petitioner is a native and citizen of Sudan. (Doc. 1 at 8.) Petitioner is currently being 22 detained at the Mesa Verde Detention Center in Bakersfield, California. (Doc. 1 at 1.) On 23 December 2, 2008, an order of removal from the United States became final. (Doc. 1 at 1.) He 24 was taken into ICE custody on February 28, 2018, and has been detained continuously by ICE 25 since that date. 26 27 28 DISCUSSION A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that “he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2241(c)(3). A 1 1 habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration” 2 of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991) (quoting Preiser v. 3 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules 4 Governing Section 2254 Cases. However, the petition must “allege facts concerning the 5 applicant’s commitment or detention,” 28 U.S.C. § 2242, and the petitioner must make specific 6 factual allegations that would entitle him to habeas corpus relief if they are true. O’Bremski v. 7 Maass, 915 F.2d 418, 420 (9th Cir.1990); United States v. Poopola, 881 F.2d 811, 812 (9th 8 Cir.1989). 9 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to 10 make a preliminary review of each petition for writ of habeas corpus. “If it plainly appears from 11 the petition and any attached exhibits that the petitioner is not entitled to relief,” the Court must 12 dismiss the petition. Rule 4 of the Rules Governing § 2254 Cases; see also Hendricks v. 13 Vasquez, 908 F.2d 490 (9th Cir.1990). 14 In the instant case, it appears Petitioner is claiming that he is being indefinitely detained 15 by ICE in violation of his Constitutional rights. This issue was addressed by the Supreme Court 16 in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the U.S. Supreme Court found that the 17 habeas corpus statute grants federal courts the authority to determine whether post-removal- 18 period detention is pursuant to statutory authority. Id. at 678. In addition, the Court held that the 19 Immigration and Nationality Act’s (INA) post-removal-period detention statute does not permit 20 indefinite detention but “implicitly limits an alien’s detention to a period reasonably necessary to 21 bring about that alien’s removal from the United States.” Id at 689. When faced with making 22 such a determination, the Court must consider “the basic purpose of the statute, namely assuring 23 the alien’s presence at the moment of removal.” Id. at 699. In addition, the Court must take 24 appropriate account of the Executive Branch’s “greater immigration related expertise,” the 25 Bureau’s “administrative needs and concerns,” and the “Nation’s need to speak with one voice on 26 immigration.” Id. at 700. The Supreme Court attempted to limit those occasions when the federal 27 court would need to make such “difficult judgments” by setting a “presumptively reasonable 28 period of detention” of six months. Id. at 701. The burden is on the alien to show that there is no 2 1 reasonable likelihood of repatriation. Id. ("This 6-month presumption, of course, does not mean 2 that every alien not removed must be released after six months. To the contrary, an alien may be 3 held in confinement until it has been determined that there is no significant likelihood of removal 4 in the reasonably foreseeable future."). After six months and once an alien makes a showing that 5 there is no “significant likelihood of removal in the reasonably foreseeable future, the 6 Government must respond with evidence sufficient to rebut that showing.” Id. However, where 7 an alien seeks release prior to the expiration of the presumptive six-month period, his claims are 8 unripe for federal review. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148- 49 9 (1967) ("[The ripeness doctrine's] basic rationale is to prevent the courts, through avoidance of 10 premature adjudication, from entangling themselves in abstract disagreements over administrative 11 policies, and also to protect the agencies from judicial interference until an administrative 12 decision has been formalized and its effects felt in a concrete way by the challenging parties."). 13 In this case, Petitioner has remained in the custody of ICE since February 28, 2018. 14 Petitioner’s current detention is still within the six-month “presumptively reasonable period of 15 detention.” Id. Moreover, the court notes that with respect to Sudanese nationals, efforts at 16 repatriation are generally successful. Petitioner's allegation alone is, therefore, insufficient to 17 overcome the presumption of reasonableness of the six-month period and his claims of 18 constitutional violations are not ripe for review. Should Petitioner’s detention continue past the 19 six-month presumptive period, he may re-file the instant federal action and obtain review. At that 20 time, however, Petitioner must provide "good reason to believe that there is no significant 21 likelihood of removal in the reasonably foreseeable future." Zadvydas, 533 U.S. at 701. 22 23 ORDER The Court DIRECTS the Clerk of Court to assign a District Judge to this case. 24 25 26 27 28 RECOMMENDATION For the foregoing reasons, the Court RECOMMENDS that the habeas corpus petition be DISMISSED without prejudice. This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 3 1 of the Local Rules of Practice for the United States District Court, Eastern District of California. 2 Within fourteen days after being served with a copy, Petitioner may file written objections with 3 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 5 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 IT IS SO ORDERED. Dated: July 9, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4