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Portes Del Rio v. Green

United States District Court, D. New Jersey

April 4, 2017

LUIS DAVID PORTES DEL RIO, Petitioner,
v.
CHARLES GREEN, Respondent.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The petitioner, Luis David Portes Del Rio, is an immigration detainee currently lodged at the Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking release from detention. The government filed a motion to dismiss the original habeas petition. Thereafter, petitioner filed an amended habeas petition. I agree with the government that the original habeas petition merited dismissal. The amended habeas petition, however, entitles the petitioner to relief, and this Court will order that a bond hearing take place before an Immigration Judge ("IJ").

         II. BACKGROUND

         Petitioner is a native of the Dominican Republic. He entered the United States in 1997. Petitioner claims he came to the United States to live with his paternal grandmother. Petitioner states that he is a naturalized United States citizen.

         In 2015, petitioner was convicted in New Jersey of theft by unlawful taking, burglary, attempted burglary, and resisting arrest. On or about May 25, 2016, petitioner was placed into immigration detention based upon his conviction of two crimes involving moral turpitude.

         Petitioner's immigration proceedings appear to be ongoing. The government states that a hearing before the IJ was scheduled for March 13, 2017, so that petitioner could present evidence that he was legally adopted by his grandmother and present any additional arguments regarding eligibility for cancellation of removal. (See Dkt. No. 7 at p.4) Thus, petitioner's citizenship is clearly at issue in his immigration proceedings. To date, neither party has updated this Court with an update on petitioner's immigration proceedings. On the record before me, I must find that petitioner is in pre-removal status. See 8 C.F.R. § 1241.1(c) (stating that an order of removal from an IJ becomes final "upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time"); see also 8 C.F.R. § 1241.1(a) (stating that an order of removal from an Immigration Judge becomes final "[u]pon dismissal of an appeal by the Board of Immigration Appeals").

         As petitioner's immigration proceedings proceeded, he filed this federal habeas petition in November, 2016. In his original habeas petition, petitioner argues that he is entitled to be released from immigration detention because he is a United States citizen. Petitioner claims that this citizenship is derived from his paternal grandmother, who impliedly adopted him. The government filed motion to dismiss that original habeas petition in January, 2017. (See Dkt. No. 7) That response contains three main arguments. First, the government contends that this Court lacks jurisdiction to consider petitioner's claims of citizenship. Second, the government claims that even if this Court has jurisdiction to consider such claims, petitioner failed to exhaust administrative remedies. Finally, the government contends that petitioner's citizenship claim lacks merit.

         On the same day that this Court received the government's motion to dismiss the original habeas petition, petitioner filed an amended habeas petition. That petition also challenges his immigration detention, but not because of petitioner's claim of citizenship. Instead, the amended petition argues that the petitioner is entitled to a bond hearing because he has been detatined for over ten months. On February 9, 2017, the government filed a response to the amended habeas petition. (See Dkt. No. 9) The government does not oppose the entry of an order that a bond hearing take place before an IJ.

         On February 21, 2017, this Court received a reply brief from petitioner in support of his habeas petitions. In that brief, petitioner continues to allege that he is entitled to habeas relief in light of his purported United States citizenship. This brief makes it clear that the amended petition does not supersede the original petition: i.e., petitioner has not abandoned his the claim based on U.S. citizenship he raised in his original habeas petition. I therefore discuss both petitions.

         III. DISCUSSION

         Petitioner's original and amended habeas petitions raise two separate arguments related to his continued immigration detention. In the original habeas petition, petitioner argues that he is entitled to be released from immigration detention because he is a United States citizen. In the amended habeas petition, petitioner argues that he is entitled to a bond hearing based upon the length of time he has already been in immigration detention, now over ten months.

         A. U.S. Citizenship

         Petitioner argues in his original habeas petition that he should be released from immigration detention because he is a United States citizen. He states that he is a United States citizen based upon the implied adoption of him by his grandmother, who is a U.S. citizen. (See Dkt. No. 1 at p. 4) The government contends that this Court lacks jurisdiction to consider this claim as it is inextricably tied to the question of petitioner's removability. Nevertheless, relying on Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008), petitioner contends that this Court has jurisdiction to consider his claim.

         In Flores-Torres, a petitioner filed a habeas corpus petition in the district court seeking his release from immigration detention, arguing (inter alia) that he was a United States citizen. See id at 710. The district court determined that it lacked jurisdiction to consider petitioner's citizenship claim. See Id. The issue before the Ninth Circuit was whether 8 U.S.C. § 1252 precluded the district court from exercising jurisdiction. Three subsections of section 1252 are relevant.

Section 1252(a)(5) states as follows:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).

8 U.S.C. § 1252(a)(5).

         Section 1252(b)(5) states as follows:

         (A) Court determination ...


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