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Jumapili v. Ice Field Office Director

United States District Court, Ninth Circuit

September 16, 2013

OMARI JUMAPILI, Petitioner,
v.
ICE FIELD OFFICE DIRECTOR, Respondent.

REPORT AND RECOMMENDATION

MARY ALICE THEILER, Chief Magistrate Judge.

I. INTRODUCTION AND SUMMARY CONCLUSION

On June 13, 2013, petitioner Omari Jumapili, an alien in the custody of the United States Immigration and Customs Enforcement ("ICE"), filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging his detention and seeking supervised release or a bond hearing. (Dkt. 1.) Respondent has filed a motion to dismiss, arguing, inter alia, that petitioner is not entitled to habeas relief because he was already provided a bond hearing before an Immigration Judge and was granted release on bond. (Dkt. 6.)

For the reasons set forth below, the Court recommends that respondent's motion to dismiss be GRANTED, and this matter be DISMISSED with prejudice.

II. BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a native and citizen of Tanzania who was admitted to the United States on March 23, 2008, as an immigrant. (Dkt. 6, Exh. A at 31-38.) On November 2, 2012, petitioner was taken into immigration custody and detained without bond. (Dkt. 6, Exh. A at 27, 57.) Petitioner was served with a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. (Dkt. 6, Exh. A at 55-56.)

On January 28, 2013, petitioner received a bond redetermination hearing before an Immigration Judge. (Dkt. 6, Exh. A at 26, 54.) The Immigration Judge refused to set a bond amount, indicating that she lacked jurisdiction to redetermine petitioner's custody under 8 C.F.R. § 1003.19(h)(2)(i)(D) because petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c)(1). (Dkt. 6, Exh. A at 52-54.) Petitioner appealed the Immigration Judge's bond decision to the Board of Immigration Appeals ("BIA"), which affirmed the decision on April 30, 2013. (Dkt. 6, Exh. A at 24.)

On May 9, 2013, petitioner renewed his motion to redetermine his custody status pursuant to Rodriguez-Robbins v. Holder, 715 F.3d 1127 (9th Cir. 2013) (requiring a bond hearing for aliens in the Central District of California who have been in custody for 180 days pursuant to 8 U.S.C. § 1226(c) or 8 U.S.C. § 1225(b)). (Dkt. 6, Exh. A at 15, 22.) ICE also filed a motion on May 14, 2013, requesting that petitioner receive another bond hearing based on the injunction in Franco-Gonzalez v. Holder, Case No. CV 10-02211 DMG (DTBx) (C.D. Cal. April 23, 2013) (holding that aliens are entitled to a bond hearing after 180 days in detention).

On May 30, 2013, the Immigration Judge conducted a new bond hearing based on the injunction in Franco-Gonzalez. (Dkt. 6, Exh. A at 14-17, 41-44.) The Immigration Judge found that the Department of Homeland Security ("DHS") had failed to meet its burden of proving that continued detention was justified, and ordered petitioner released under bond of $6, 000. Id. Petitioner appealed the Immigration Judge's bond decision to the BIA. (Dkt. 6, Exh. A at 2-12.) His appeal is currently pending. (Dkt. 6 at 4, Exh. A at 44.)

On June 13, 2013, petitioner filed the instant habeas petition, seeking supervised release or another bond hearing. (Dkt. 1.) On June 16, 2013, petitioner filed another motion for bond redetermination. The Immigration Judge denied the motion on June 20, 2013, finding petitioner had failed to demonstrate a material change in circumstances since the prior bond hearing in accordance with 8 C.F.R. § 1003.19(e). (Dkt. 6, Exh. A at 44.) On July 25, 2013, respondent filed a motion to dismiss. (Dkt. 6.) Petitioner did not file a reply.

III. DISCUSSION

A. Jurisdiction

Petitioner brings this action pursuant to 28 U.S.C. § 2241, which authorizes the district court to grant a writ of habeas corpus whenever a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody, " and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). The Court has habeas jurisdiction under § 2241 because petitioner was detained within its jurisdiction at the time he filed his petition, and he asserts that his detention is unlawful.

In addition, review is not precluded by petitioner's failure to exhaust his administrative remedies by appealing the Immigration Judge's bond decision to the BIA and awaiting the BIA's decision. "[Section 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus." Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Nevertheless, the Ninth Circuit requires, "as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." Id.; see also Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011). Courts may require prudential exhaustion if "(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate ...


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