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Valerga v. Holder

United States District Court, Tenth Circuit

January 9, 2014

DEMETRIO A. VALERGA, Applicant,
v.
ERIC HOLDER, JR., Respondent.

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS

PHILIP A. BRIMMER, District Judge.

The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1], filed on November 4, 2013 by Applicant Demetrio Valerga. On November 6, 2013, this Court ordered Respondent to show cause within twenty-one days why the Application should not be granted [Docket No. 5]. Respondent filed a Response to Order to Show Cause on November 27, 2013 [Docket No. 14]. Applicant filed a Motion to Submit Evidence on December 9, 2013 [Docket No. 17].

The Court has determined that it can resolve the Application without a hearing. 28 U.S.C. § 2243; see also Jeter v. Keohane, 739 F.2d 257 n.1 (7th Cir. 1984) ("An evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court.").

I. BACKGROUND

Mr. Valerga is detained by the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") at the GEO/ICE processing center in Aurora, Colorado. Docket No. 1 at 6, ¶¶ 1, 2. Mr. Valerga is a native and citizen of Argentina, but has lived in the United States since he was fifteen months old. Docket No. 1 at 9, ¶ 13. He has been a lawful permanent resident ("LPR") of the United States for more than twenty years. Docket No. 14-2 at 2; Docket No. 14-4 at 35.

On February 19, 2008, Mr. Valerga was convicted in the Colorado state courts of the felony offense of theft over $15, 000 and was sentenced to six years' imprisonment. Docket No. 1 at 11, ¶ 23; Docket No. 14-3 at 9. On March 31, 2008, Mr. Valerga was convicted in the Colorado state courts of the felony offense of unauthorized use of a financial transaction device and was sentenced to one year imprisonment. Docket No. 1 at 11, ¶ 24; Docket No. 14-3 at 12. On May 20, 2008, Mr. Valerga was convicted in the Colorado state courts of the felony offense of criminal possession of financial transaction devices and was sentenced to fifteen months' imprisonment. Docket No. 1 at 11, ¶ 25; Docket No. 14-3 at 15.

On February 11, 2011, Mr. Valerga alleges he was released from incarceration in the Colorado Department of Corrections and placed under the supervision and treatment of "Time to Change, " a community corrections program that operates a correctional halfway house in Commerce City, Colorado. Docket No. 1 at 12, ¶ 28; Docket No. 14-2 at 5. Mr. Valerga alleges that "he was not on parole from the Colorado Department of Corrections" and that "his status was halfway house.'" Docket No. 1 at 12, ¶ 31.

On May 19, 2011, Mr. Valerga was arrested and detained by immigration authorities because of his 2008 felony convictions. Docket No. 1 at 12, ¶ 29; Docket No. 14-2 at 5. He was charged as being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his convictions for a crime defined as an aggravated felony and two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). Docket No. 14-2 at 2, 6. On May 24, 2011, Immigration Judge James P. Vandello ruled that the immigration court lacked jurisdiction to adjudicate bond. Docket No. 14-2 at 9; Docket No. 14-4 at 10-12. Mr. Valerga remained in ICE custody until June 8, 2011, when his immigration case was administratively closed and he was transferred back to state authorities. Docket No. 1 at 13, ¶ 32; Docket No. 14-2 at 8. Mr. Valerga alleges that he "was transported back to the care of the Colorado Department of Corrections [d]ue to him not being on parole or done with his time." Docket No. 1 at 13, ¶ 32.

On August 28, 2013, Mr. Valerga was released into the custody of ICE for removal proceedings. Id. at 13, ¶ 33; Docket No. 14-3 at 1, 3. Immigration officials placed Mr. Valerga in mandatory detention and determined that he would remain in custody pending a final determination in his removal proceedings. Docket No. 14-3 at 7. On September 18, 2013 and September 25, 2013, Immigration Judge Vandello allegedly denied Mr. Valerga's requests for bond. Docket No. 1 at 13, ¶¶ 34-35; Docket No. 14-4 at 38. On October 10, 2013, Immigration Judge Vandello ordered Mr. Valerga removed from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) as having been convicted of an aggravated felony and sentenced to a term of imprisonment of at least one year. Docket No. 14-4 at 5-7. Mr. Valerga continues to be detained without bond while his administrative appeal to the Board of Immigration Appeals ("BIA") is pending. [Docket No. 14-4 at 42-45].

II. HABEAS APPLICATION

Mr. Valerga asserts four claims in the § 2241 Application. First, he claims he is a "national" of the United States and cannot be deported or removed pursuant to 8 U.S.C. § 237(a)(2)(A)(ii). Docket No. 1, at 13-19. Second, Mr. Valerga asserts that the mandatory detention provision under 8 U.S.C. § 1226(c) does not apply to him. Id. at 19-20. Third, Mr. Valerga contends that his detention violates the Fifth Amendment Double Jeopardy Clause. Id. at 20. Finally, he claims that his continued detention violates his Fifth Amendment right to due process. Id. at 21-23.

Mr. Valerga seeks the following relief:

• an individualized hearing and bond determination pursuant to 8 U.S.C. § 1226(a);
• a finding that he is a "national" pursuant to 8 U.S.C. § 101(A)(22)(B);
• a finding that he is not a deportable criminal alien under 8 U.S.C. § 237(a)(2)(A)(ii), § 237(a)(2)(A)(iii), or § 212(a)(2)(A)(i)(I); and
• an order that prevents Respondent from transferring Applicant out of the jurisdiction of this Court during the pendency of this proceeding.

Docket No. 1 at 23.

Respondent answers that this Court lacks jurisdiction to consider Mr. Valerga's claim that he is a "national" of the United States and that this claim is without merit. Docket No. 14 at 7-9. Respondent also asserts that 8 U.S.C. § 1226(c) applies to Mr. Valerga and that ICE has complied with the mandatory detention provision. Id. at 9-11. Respondent next argues that Mr. Valerga has not been subjected to double jeopardy because removal proceedings are civil in nature and the constitutional protection against double jeopardy in criminal proceedings does not apply to Mr. Valerga. Id. at 11-12. Finally, Respondent asserts that Mr. Valerga's detention without a bond hearing does ...


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