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Gomez-Hermosillo v. Holder

United States District Court, Tenth Circuit

December 19, 2013

ADOLPHO GOMEZ-HERMOSILLO, Applicant,
v.
ERICK HOLDER, JR., Respondent.

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. # 4), filed by Applicant Adolpho Gomez-Hermosillo. The Government filed a Response (Doc. # 13) and Applicant filed a Reply (Doc. # 17). Having considered the same, the Court FINDS as follows:

I. BACKGROUND

Mr. Gomez-Hermosillo was born in Mexico. (Doc. # 4 at 2). At some point, he entered the United States and was removed in 1999. (Doc. # 13-1 at 2). In October 12, 2012, Applicant was arrested by local police officials for driving under the influence. ( Id. ) He was convicted of that offense in the County Court of Adams County, Colorado, on October 22, 2012. ( Id. at 4). On November 7, 2012, Mr. Gomez-Hermosillo was turned over to the custody of the United States Marshals Service for prosecution of criminal re-entry charges. ( Id. ). On February 21, 2013, Applicant was convicted in the United States District Court for the District of Colorado of illegal re-entry after deportation, and was sentenced to six months in prison. ( Id. at 4-5; see also Doc. # 13-2.)

On April 19, 2013, Applicant was released from federal custody, returned to ICE custody, and placed in removal proceedings.[1] (Doc. # 13-1 at 5.) A final order of removal was entered pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (present without being admitted or paroled) and § 1182(a)(9)(C)(i)(II) (unlawful reentry after removal). (Doc. # 13-4, ¶ 3; # 13-3.) The Board of Immigration Appeals (BIA) dismissed Applicant's appeal on October 21, 2013. ( Id. )

Mr. Gomez-Hermosillo filed a motion for stay of removal, which was denied by ICE on October 25, 2013. (Doc. # 17 at 13). On November 26, 2013, the BIA denied Applicant's motion to stay or re-open the removal proceeding. (Doc. # 19-1.)

Respondents represent that ICE is prepared to remove Applicant once this Court vacates the order requiring Applicant to remain in custody. (Doc. # 13-4.)

Mr. Gomez-Hermosillo initiated this action on October 21, 2013. He contends in the Amended § 2241 Application that he is not subject to mandatory detention under Immigration and Nationality Act (INA) § 236, 8 U.S.C. § 1226(c). He further claims that his detention without an individualized bond hearing violated his due process rights under the Fifth Amendment of the United States Constitution.

I. LEGAL ANALYSIS

A. STANDARD OF REVIEW

An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be granted if the Applicant "is in custody in violation of the Constitution, or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for an immigration detention unrelated to a final order of removal. Demore v. Kim, 538 U.S. 510, 517-18 (2003).

Mr. Gomez-Hermosillo is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). The Applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

B. DETENTION UNDER 8 U.S.C. § 1226

Mr. Gomez-Hermosillo challenges the Attorney General's authority to detain him under 8 U.S.C. § 1226(c) and the constitutionality of his detention under that statute. For the reasons ...


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