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Olmos v. Holder

United States District Court, Tenth Circuit

January 17, 2014

MANUEL OLMOS, Plaintiff,
v.
ERIC HOLDER, JR., Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on the Application of Petitioner Manuel Olmos for a Writ of Habeas Corpus filed November 20, 2013 (the "Application"). A hearing was held on Mr. Olmos's Application on January 9, 2014, at which this Court orally granted the Application and ordered that Mr. Olmos receive an individualized bond hearing within 10 days of that date. Below, the Court sets forth its reasoning for granting this relief.

I. Background

Mr. Olmos is a citizen and national of Mexico. Mr. Olmos last entered the United States near Laredo, Texas in approximately 1995. Overall, he has been in the United States for about 20 years. He first came to the attention of the immigration authorities due to his 2011 arrest on a charge of driving under restraint. A detainer was lodged against Mr. Olmos, and he was eventually taken into Immigration and Customs Enforcement ("ICE") custody. ICE determined that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Nonetheless, he was released on a $10, 000 bond and enrolled in the "ATD" program. As explained at the hearing, ATD is an "alternative to detention" program which required Mr. Olmos to wear an ankle monitor and to periodically report in person to the local immigration office. By Mr. Olmos' account, and the government does not dispute this, he complied in full with the program, and checked in as required. It appears as if he physically checked in with immigration either two times per week or every other week. The government said at the hearing that the purpose of the program was to "monitor [Mr. Olmos] more closely, " particularly any "sort of new offenses that he may have committed."

At the time of his 2011 admission into the ATD program, there was pending against Mr. Olmos a felony charge relating to check forgery. This matter was known to ICE at the time Mr. Olmos received bond. Also known were 2009 convictions for domestic violence and violation of court orders.

In early December 2012, Mr. Olmos pled guilty to a charge of forgery of government issued documents in state court, thereby resolving the felony charge that had been pending at the time Mr. Olmos was bonded by ICE in 2011. Sentencing was set for April 2013. ICE was aware of this event or should have been. Thereafter, around December 22, 2012, Mr. Olmos was arrested for two additional felony offenses, identification theft and providing false information to a pawnbroker. As to these matters, Mr. Olmos was released on bond by the state courts. He also remained on ICE bond and continued to report as directed.

On April 19, 2013, Mr. Olmos returned to court for sentencing on the charge which he resolved by plea in December 2012. On that same occasion, he pled guilty to the additional offenses for which he was arrested on December 22, 2012. Mr. Olmos received a sentence of probation on all three charges of conviction. That same day, he left the courthouse and returned home.

On April 25, 2013, Mr. Olmos reported to his local immigration office as part of his regular-and by now routine-check-ins as required under his previously imposed ATD program. ICE ran a routine criminal records check and concluded that Mr. Olmos had now been convicted of two crimes of moral turpitude. ICE determined that he should be detained under 8 U.S.C. § 1226(c) and revoked his bond. Mr. Olmos sought review by an immigration judge who, on June 13, 2013, found that he had no jurisdiction to conduct a bond hearing.

Mr. Olmos has been in custody since April 2013. He challenges the Attorney General's authority to detain him under 8 U.S.C. § 1226(c) without a bond hearing by application for writ of habeas corpus. Mr. Olmos has been and continues to be confined in ICE custody at the Aurora Detention Facility in Aurora, Colorado. This facility is privately run by the GEO Group, Inc., which has a contract with ICE.

This Court has subject matter jurisdiction under § 2241 because Mr. Olmos is detained within its jurisdiction in ICE custody. "[F]or core habeas petitions challenging present physical confinement, jurisdiction lies only in one district: the district of confinement." Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); see also United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986) ("A § 2241 petition for a writ of habeas corpus must be addressed to the federal district court in the district where the prisoner is confined."). Mr. Olmos asserts both that his mandatory detention is not statutorily authorized and that it violates the Due Process Clause of the Fifth Amendment of the Constitution. There is no challenge as to the Court's jurisdiction.

II. Analysis

A. Proper Respondent

Mr. Olmos' pro se petition was served on multiple individuals beyond Attorney General Eric Holder, Jr. In its response to Mr. Olmos' petition, the government included a footnote arguing that all respondents other than Johnny Choate, the warden of the Aurora Detention Facility, should be dismissed as improper respondents as only Mr. Choate is Mr. Olmos' physical custodian. At the hearing on this matter, the government made clear that this was not a point of emphasis for the government. The Court agrees that it should not be a point of emphasis and will, accordingly, address the matter only briefly.

The Court disagrees that Mr. Choate is the only proper respondent. Indeed, he lacks any ability to afford Mr. Olmos the only relief which the Court could order in this matter-that Mr. Olmos be given an individualized bond hearing. To dismiss all other respondents other than Mr. Choate would thus be to cripple the Court's ability to provide relief and require it to embark upon a series of successive orders where, like the judicial equivalent of the classic three shells and a pea game, the Court would be trying to determine where the "correct respondent" was at a given moment in time. Rather than engage in such ritualistic futility, the Court instead adopts the well-reasoned and thorough analysis of Judge Christine Arguello in Sanchez-Penunuri v. Longshore and Castillo-Hernandez v. ...


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