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Guo v. Nielsen

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

June 18, 2019

YONG GUO, Petitioner,
v.
KRISTEN NIELSON, et al., Respondents.

          ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AND GRANTING RESPONDENTS' MOTION TO DISMISS

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Yong Guo's Petition for habeas relief, the Government's Motion to Dismiss, and a Report and Recommendation prepared in response to those materials. Dkts. #1, #8, and #13. Yong Guo, who is currently detained at the Northwest Detention Center in Tacoma, Washington, brings this 28 U.S.C. § 2241 immigration habeas action pro se to obtain release from detention or a bond hearing. The Government has moved to dismiss, and Mr. Guo opposes dismissal. For the reasons stated below, the Court declines to adopt the Report and Recommendation in full, DENIES the Petition and GRANTS the Motion to Dismiss.

         II. BACKGROUND

         The Court adopts and incorporates the facts as stated by the Honorable Brian A. Tsuchida in the Report and Recommendation at Dkt. #13.

         III. DISCUSSION

         A. Legal Standard

         A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         Mr. Guo challenges the lawfulness of his detention and also complains about his removal proceedings. See Dkt. 5. Federal district courts have habeas jurisdiction to review bond hearing determinations for constitutional claims and legal error. Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). They do not, however, have jurisdiction over claims that directly or indirectly challenge an order of removal. Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (exclusive jurisdiction over claims that directly or indirectly challenge a removal order is vested in the courts of appeals); 8 U.S.C. § 1252(a)(5) (petition for review to the appropriate court of appeals is the “sole and exclusive means for judicial review” of a final order of removal). Accordingly, the Court has jurisdiction to consider Mr. Guo's challenges to his detention but not his removal proceedings.

         B. Release

         The Court agrees with and adopts the Report and Recommendation as to the issue of Mr. Guo's request for release from detention. See Dkt. #13 at 7-8.

         C. New Bond Hearing

         An Immigration Judge's (“IJ”) discretionary decision to deny bond is not subject to judicial review. 8 U.S.C. § 1226(e); see also Romero-Torres v. Ashcroft, 327 F.3d 887, 891-92 (9th Cir. 2003). But federal district courts do have habeas jurisdiction to review bond hearing determinations for constitutional claims and legal error. Singh, 638 F.3d at 1200. Habeas jurisdiction over such legal and constitutional claims is proper only if they are “colorable, ” i.e., “the claim must have some possible validity.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001) (quotation marks omitted).

         Under previous Ninth Circuit authority, the government was required to provide automatic bond hearings every six months to noncitizens who were detained pursuant to § 236(a) as a matter of statutory interpretation. Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), rev'd sub nom Jennings v. Rodriguez, 138 S.Ct 830 (2018). At such bond hearings the Government bore the burden of establishing by clear and convincing evidence that a noncitizen was either a danger to the community or a flight risk. Id. at 1074, 1087. The Supreme Court reversed Rodriguez in Jennings, holding that “[f]ederal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention” and that “[n]othing in § 1226(a)'s text . . . supports the ...


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