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Carbajal v. Holder

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

August 21, 2014

MARTA L. GUEVARA CARBAJAL, et al., Petitioners,
v.
ERIC H. HOLDER, JR., et al., Respondents.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

INTRODUCTION

Attorney Bruno J. Bembi initiated this habeas action pursuant to 28 U.S.C. § 2241 on behalf of Jose Jonal Guevara Carbajal, who is currently detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest Detention Center, and his sister Marta L. Guevara Carbajal, who resides in New York and is seeking to become his guardian. See Dkt. 1. Through the petition, Mr. Guevara Carbajal sought release from immigration detention and a stay of removal. Id. The Court entered a temporary stay of removal pending resolution of the habeas petition and motion for stay. Dkt. 3.

Mr. Bembi did not file for pro hac vice status and was subsequently terminated as petitioners' counsel. See Dkts. 11, 16. Proceeding pro se, Mr. Guevara Carbajal filed an amended habeas petition.[1] Dkt. 13. He seeks the same relief as in the original petition. See id. Respondents filed their answer, arguing that the habeas petition should be dismissed and the temporary stay of removal should be lifted. Dkt. 14. Mr. Guevara Carbajal did not file a response.

As discussed below, the Court recommends that respondents' motion to dismiss, Dkt. 14, be GRANTED; petitioners' amended habeas petition, Dkt. 13, be DENIED; the temporary stay of removal, Dkt. 3, be VACATED; and this action be DISMISSED with prejudice.

BACKGROUND

Mr. Guevara Carbajal is a 20-year-old native and citizen of El Salvador. Dkt. 13 at 20. He entered the United States on or about March 15, 2014, with the intention to reside with Ms. Guevara Carbajal and seek employment in New York. Dkt. 14, Ex. A. On March 17, 2014, the Department of Homeland Security ("DHS") determined that he was inadmissible and ordered him removed pursuant to 8 U.S.C. § 1225(b)(1) because he did not have a valid entry document. Id. (citing 8 U.S.C. § 1182(a)(7)(A)(i)(1)). Mr. Guevara Carbajal claimed a fear of persecution if he was returned to El Salvador, and an Immigration Judge ("IJ") denied his claim on May 21, 2014. Dkt. 14, Ex. B.

On April 25, 2014, Ms. Guevara Carbajal filed a guardianship petition on her brother's behalf in New York so that he can seek special immigrant juvenile status under 8 U.S.C. § 1101(a)(27)(J). Dkt. 13 at 10-25. She also submitted a "Request for Specific Consent to Juvenile Court Jurisdiction, " which was denied because Mr. Guevara Carbajal was not within the jurisdiction of the Department of Health and Human Services ("DHHS"). Dkt. 13 at 5.

On May 23, 2014, petitioners initiated the instant habeas action. Dkt. 1.

DISCUSSION

A. Mr. Guevara Carbajal's current detention is authorized by 8 U.S.C. § 1231(a)

Mr. Guevara Carbajal is entitled to habeas relief pursuant to 28 U.S.C. § 2241 if he is "in custody in violation of the Constitution or laws or treaties of the United States. Pursuant to 8 U.S.C. § 1231(a), the Attorney General is required to detain an alien during the "removal period." 8 U.S.C. § 1231(a)(2). The removal period is the 90-day period that begins on the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; or (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). The Attorney General may also detain certain aliens beyond the removal period, including those who are deemed inadmissible under § 1182. 8 U.S.C. § 1231(a)(6).

Respondents contend that Mr. Guevara Carbajal's current detention is authorized by § 1231(a)(2) because the removal period began on May 21, 2014, when the IJ denied his asylum claim, and will continue 90 days until August 19, 2014. But because August 19, 2014, has already passed, Mr. Guevara Carbajal is no longer detained pursuant to § 1231(a)(2). Nevertheless, his continued detention by DHS is authorized by § 1231(a)(6) because he was found to be inadmissible under § 1182(a)(7)(A)(i)(I). See 8 U.S.C. § 1231(a)(6) (authorizing the continued detention of aliens ordered removed who are inadmissible under § 1182).

Mr. Guevara Carbajal asserts he should be in the custody of DHHS, rather than ICE. When Congress created DHS, it transferred certain functions under the immigration laws to DHHS, including those "with respect to the care of unaccompanied alien children...." 6 U.S.C. § 279(a). The term "unaccompanied alien child" means a child who "(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom-(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody." 6 U.S.C. § 279(g)(2). Mr. Guevara Carbajal does not satisfy the definition of "unaccompanied alien child" because he was born on June 24, 1994, and therefore ...


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