Beltran Prado v. Nielsen

379 F.Supp.3d 1161

Armando BELTRAN PRADO, Petitioner,

v.Kirstjen M. NIELSEN, et al., Respondents.

CASE NO. C18-1307JLR

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

Signed May 6, 2019

ORDER ADOPTING REPORT AND RECOMMENDATION

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court is the Report and Recommendation of United States Magistrate Judge James P. Donohue (R & R (Dkt. # 15)), and Respondents' and Petitioner's objections thereto (Resp't Obj. (Dkt. # 20); Pet'r Obj. (Dkt. # 21)). Having carefully reviewed the foregoing, along with all other relevant documents and the governing law, the court ADOPTS the Report and Recommendation (Dkt. # 15) and DISMISSES Petitioner's action with prejudice.

II. STANDARD OF REVIEW

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). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id. When no objections are filed, the court need not review de novo the report and recommendation.

Wang v. Masaitis , 416 F.3d 992, 1000 n.13 (9th Cir. 2005).

III. DISCUSSION

Respondents object to the Report and Recommendation's finding that the court has subject matter jurisdiction to consider a stay of Petitioner's removal pending a resolution of Petitioner's motion to reopen his removal proceedings. (See generally Resp't Obj.) Petitioner objects to the Report and Recommendation's finding that Petitioner's procedural due process rights were not violated. (Pet'r Obj. at 3-14.)

Neither Respondents' nor Petitioner's objections raise any novel issues that were not addressed by Magistrate Judge Donohue's Report and Recommendation. (See generally R & R.) Moreover, the court has thoroughly examined the record before it and finds Magistrate Judge Donohue's reasoning persuasive in light of that record. Respondents and Petitioners essentially reargue the arguments they made to Magistrate Judge Donohue, as well as arguments that Magistrate Judge Donohue thoroughly addressed in the Report and Recommendation that the parties did not initially raise, and the court independently rejects them for the same reasons as Magistrate Judge Donohue.

IV. CONCLUSION

For the foregoing reasons, the court hereby ORDERS as follows:

(1) The court ADOPTS the Report and Recommendation (Dkt. # 15) in its entirety;

(2) The court GRANTS Respondents' motion to dismiss (Dkt. # 4);

(3) The court DENIES Petitioner's habeas petition (Dkt. # 1);

(4) The court DENIES Petitioner's motion to stay, (Dkt. # 1-13);

(5) The court VACATES the temporary stay of removal (Dkt. # 2);

(6) The court DISMISSES this action with prejudice; and

(7) The court DIRECTS the Clerk to send copies of this order to counsel for Petitioner, counsel for Respondents, and Magistrate Judge Donohue.

REPORT AND RECOMMENDATION

JAMES P. DONOHUE United States Magistrate Judge

I. INTRODUCTION

Petitioner, a native and citizen of Mexico who is subject to a final order of removal, brings this 28 U.S.C. § 2241 habeas action to obtain a judicial stay of removal pending the Board of Immigration Appeals' ("BIA") adjudication of his motion to reopen his removal proceedings.¹ The Court temporarily stayed his removal. Dkt. 2.

The Government now moves to dismiss. Dkt. 4. Petitioner did not timely respond, and on the noting date for the motion to dismiss, moved to allow the late filing of his opposition brief. Dkt. 9. Later that day, the Government filed its reply brief opposing the request for an extension of time and asking the Court to dismiss the action. Dkt. 10. Four days later, petitioner filed his response brief. Dkt. 11.

Having considered the parties' submissions, the balance of the record, and the governing law, the Court GRANTS petitioner's motion to accept his late-filed brief and recommends that the Government's motion to dismiss be GRANTED, petitioner's habeas petition and motion to stay be DENIED, and the temporary stay of removal be VACATED.

II. BACKGROUND

Petitioner is a native and citizen of Mexico who entered the United States without inspection in September 2002. Dkt. 5-1 at 2. His wife is a lawful permanent resident and they have three children, one of whom is a lawful permanent resident and two of whom are U.S. citizens. Dkt. 1 at ¶ 15. He works in construction and is the primary breadwinner for their family. Id. at ¶¶ 16, 25.

ICE first encountered petitioner on December 2, 2009, while he was serving a two-day sentence for a domestic violence conviction at the Pierce County Jail. Dkt. 5-1 at 3; see also Dkt. 5-2. The same day, the Department of Homeland Security ("DHS") issued a Notice to Appear, charging petitioner with removability because he had not been lawfully admitted or paroled into the United States, and released him on his own recognizance pending resolution of his removal proceedings. Dkts. 5-4, 5-5.

On March 31, 2010, petitioner appeared before the immigration court and conceded removability as charged.² Dkt. 5-6 at 2-3. In lieu of removal, petitioner filed applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Id. at 3. On October 18, 2011, an immigration judge ("IJ") held a merits hearing, denied petitioner's applications, and ordered him removed to Mexico. Dkt. 5-6 at 15. On April 5, 2013, the BIA dismissed petitioner's appeal. Dkt. 5-8. On May 2, 2013, petitioner filed a petition for review and motion for stay of removal with the Ninth Circuit. Beltran-Prado v. Lynch , No. 13-71548, Dkt. 1 (9th Cir. May. 2, 2013). The Ninth Circuit stayed his removal. Id. at Dkt. 7. On July 28, 2015, the Ninth Circuit denied the petition and the stay of removal expired. Id. at Dkts. 24, 25.

On December 4, 2015, petitioner filed a pro se I-246 application for a stay of removal with ICE, arguing that he is the sole support for his wife and three daughters. Dkt. 5-9; see also Dkt. 5-10 (letter from petitioner's counsel and additional documents in support of stay request). On January 23, 2018, ICE denied petitioner's I-246 application. Dkt. 5-11.

ICE originally ordered petitioner to report to its office on February 16, 2018, to receive the stay decision, but at the request of his attorney, the date was changed to March 1, 2018. Dkt. 5-13 at ¶ 3. On March 1, 2018, ICE served the I-246 application denial letter on petitioner and his attorney. Id. at ¶ 4. Petitioner's counsel informed ICE that she intended to file a motion to reopen his removal proceedings based on the ineffective assistance petitioner received from his previous attorney, as well as new information regarding a U (crime victim) visa certification. Id. ICE ordered petitioner to report back on June 6, 2018, to follow-up regarding his immigration status, which he did. Id. at ¶¶ 4-5. At that meeting, ICE informed him and his attorney that he must report on August 6, 2018, with departure plans showing a departure date on or before September 6, 2018. Id. On August 8, 2018, ICE received confirmation from petitioner's attorney that he had purchased a plane ticket departing to Mexico on September 4, 2018. Id. at ¶ 6.

Petitioner subsequently filed with the BIA a motion to reopen his removal proceedings based on the ineffective assistance of his counsel and the Supreme Court's decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018).³ Dkt. 1 at ¶ 22. Petitioner also filed an application to stay his removal pending a decision on the motion to reopen. Id. On September 4, 2018, the BIA denied petitioner's application to stay, concluding "that there is little likelihood that the motion [to reopen] will be granted." Dkt. 5-12 at 3.

Also on September 4, 2018, petitioner filed the instant habeas petition and an emergency motion for stay of removal. Dkt. 1 at 2; Dkt. 1-13. The Honorable James L. Robart granted a temporary stay of removal and ordered the Government to file a return memorandum addressing petitioner's habeas petition and motion to stay. Dkt. 2.

On October 4, 2018, the Government filed a return memorandum and motion to dismiss. Dkt. 4. On October 22, 2018, the parties filed a joint stipulation and proposed order to modify the briefing schedule because petitioner's attorney had suffered a computer problem and hundreds of her files had been deleted, including all of those related to this case. Dkt. 6. The Court granted the joint stipulation, ordered petitioner to file his response brief by October 29, 2018, and re-noted the Government's motion to dismiss for November 2, 2018. Dkt. 7.

On October 30, 2018, petitioner filed an untimely amended habeas petition. Dkt. 8. On November 2, 2018, petitioner filed a motion to allow the late filing of his response to the Government's motion to dismiss. Dkt. 9. The same day, the Government filed a reply brief, arguing that the Court should not accept petitioner's tardy amended habeas petition, should deny petitioner's request to file his response brief late, and should grant the motion to dismiss. Dkt. 10. On November 6, 2018, petitioner filed his response brief. Dkt. 11.

III. DISCUSSION

A. Preliminary matters

There are two preliminary matters the Court must resolve before turning to the merits of petitioner's habeas petition and the Government's motion to dismiss. First, the Government claims that petitioner's amended habeas petition was filed late and should not be accepted. See Dkt. 10. Petitioner...