United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
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").
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.
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.
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").
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
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.
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
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.
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.
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).
1252(b)(5) states as follows:
Court determination ...