United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Application") [#4] filed November 6, 2013, by Applicant Alejandro Garcia Carbajal. On December 2, 2013, Respondent was ordered to show cause why the Application should not be granted. On December 23, 2013, Respondent filed a Response to Petition ("Response") [#13]. On January 14, 2014, Respondent file a Notice of Immigration Court Action and Supplemental Response to Order to Show Cause ("Supplemental Response") [#15]. Applicant has not filed a reply to either the Response or the Supplemental Response.
I reviewed carefully the pertinent portions of the record in this case, including the Application, Response, and Supplemental Response. I conclude that the Application should be denied.
Applicant was born in Mexico and has resided in the United States since 1985. ( See [#4] at 6.) Applicant's immigration status was adjusted to lawful permanent resident on October 9, 2001. ( See [#13-1] at 6.) Since becoming a lawful permanent resident Applicant has been convicted of four criminal offenses in Colorado state courts. On August 10, 2007, Applicant was convicted in Jefferson County Court of possession of marijuana under one ounce; on September 13, 2012, he was convicted in Kit Carson County Court of possession of a dangerous weapon (sawed-off shotgun); on May 24, 2013, he was convicted in Lincoln County Court of vehicle eluding and possession of a weapon (nine millimeter semi-automatic handgun) by a previous offender; and on August 12, 2013, he was convicted in Kit Carson County Court of criminal mischief $1, 000-$20, 000. ( See id. at 7.)
Applicant has been detained by immigration officials since August 14, 2013, when he was released from the Kit Carson County Jail. ( See [#4] at 6; [#13-1] at 6-7.) Applicant was held initially without bond pending removal proceedings. ( See [#13-1] at 13.) On September 9, 2013, the immigration court determined Applicant's conviction for an aggravated felony disqualified him for cancellation of removal and ordered him removed from the United States. ( See id. at 15-18.) On December 27, 2013, the Board of Immigration Appeals dismissed Applicant's administrative appeal, thereby affirming the order of removal. ( See [#15-1].)
Applicant initiated this action on October 22, 2013, while his administrative appeal was pending. He asserts three claims in the Application contending that (1) his mandatory detention pursuant to 8 U.S.C. § 1226(c) is unlawful; (2) his detention without an individualized bond hearing violates his constitutional right to due process; and (3) he is not subject to removal because he is a national of the United States and not an alien. As relief, Applicant requests an individualized bond hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a), and he asks the Court to "grant and clarify" his status as a national of the United States pursuant to 8 U.S.C. § 1101(a)(22)(B). ( See [#4] at 5.)
II. Standards of Review
An application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 may be granted only if 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. See Demore v. Kim, 538 U.S. 510, 517-18 (2003).
I must construe the papers filed by Applicant liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
III. Legal Analysis
A. Proper Respondent
Respondent first argues, based on Rumsfeld v. Padilla, 542 U.S. 426 (2004), that Applicant has failed to name a proper respondent because the United States Attorney General, the only respondent listed in the caption of the Application, is merely a remote supervisory official and is not Applicant's immediate custodian. According to Respondent, the proper respondent in this habeas corpus action is Johnny Choate, the warden of the Denver Contract Detention Facility in which Applicant is detained.
I will not dismiss the Application for failure to name a proper Respondent or require Applicant to file an amended pleading that lists only Warden Choate as a respondent. Applicant named Warden Choate as one of several respondents in his original pleading, ( see [#1]), and Warden Choate has not been terminated as a party to this action. Furthermore, the Court is not persuaded that the immediate custodian rule in Padilla necessarily applies in a habeas corpus case, like the instant action, in which a non-citizen challenges the legality of his ...