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Vasquez-Acevedo v. Beers

United States District Court, W.D. Washington, Seattle

January 14, 2014

VICENTE DE JESUS VASQUEZ-ACEVEDO, Petitioner,
v.
RAND BEERS, Acting Secretary of the U.S. Department of Homeland Security, et al., Respondents.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Petitioner Vincente Vasquez-Acevedo has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2241, challenging his pre-removal-period detention and seeking supervised release or a bond hearing before an Immigration Judge ("IJ"). See Dkt. 3. Respondents argue that the petition should be dismissed because his detention is lawful. See Dkts. 9, 12. For the reasons discussed below, the Court recommends DENYING petitioner's habeas petition, Dkt. 3, GRANTING respondents' motion to dismiss, Dkt. 9, and DISMISSING the matter without prejudice.

BACKGROUND

Petitioner, a native and citizen of Mexico, entered the United States in 2002 at an unknown location without inspection or parole by an immigration officer. Dkt. 10-1 at 2-3. On October 7, 2013, petitioner was convicted of driving under the influence and possessing a forged drivers license and sentenced to probation. Id. at 8-15. On October 9, 2013, he was released from the state jail where he was being held into U.S. Immigration and Customs Enforcement ("ICE") custody and served with a Notice to Appear, charging him as removable from the United States under 8 U.S.C. § 1182(a)(6)(A)(i) ("An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.").[1] Dkt. 10-1 at 17-19 (Notice to Appear); see also id. at 26 (Warrant for Arrest of Alien). Also on October 9, 2013, ICE served petitioner with a Notice of Custody Determination, notifying him that he would be detained pending the outcome of his removal proceedings and did not have the right to request review of the detention decision. Id. at 25.

On October 28, 2013, petitioner initiated the instant habeas action. See Dkt. 1. On December 16, 2013, ICE served petitioner with a second Notice of Custody Determination, which reiterated that he would be detained during his removal proceedings but notified him that he could request review of the detention decision by an Immigration Judge. Dkt. 10-1 at 24. Petitioner requested review the same day. Id. A bond hearing is currently scheduled for January 28, 2014. Dkt. 12-2 at 2.

DISCUSSION

Petitioner brings this action pursuant to 28 U.S.C. § 2241, which authorizes the district court to grant a writ a 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). The record shows the statutory authority for petitioner's detention is 8 U.S.C. § 1226(a). See Dkt. 10-1 at 24. Section 1226(a) provides the framework for the arrest, detention, and release of aliens in removal proceedings. That provision gives the Attorney General with discretionary authority to release an alien on bond or conditional parole pending the completion of removal proceedings. See id. Section 1226(a) states in relevant part:

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General -
(1) may continue to detain the arrested alien; and
(2) may release the alien on -
(A) bond of at least $1, 500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole...

8 U.S.C. § 1226(a).

When an alien is arrested and taken into immigration custody, ICE makes an initial custody determination, including the setting of bond. See 8 C.F.R. § 236.1. After the initial custody determination, the alien may request a bond redetermination by an IJ. Id. At the bond hearing, the burden is on the detainee to show to the satisfaction of the IJ that he warrants release on bond. See Matter of Guerra, 2 ...


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