Andres Luiz Costa Soares v. Kevin McAleenan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANDRE LUIZ COSTA SOARES, ) Case No. 5:19-cv-01418-ODW-JC ) 12 Petitioner, ) ) 13 v. ) ORDER ACCEPTING FINDINGS, ) CONCLUSIONS, AND 14 KEVIN McALEENAN, Acting ) RECOMMENDATIONS OF UNITED Secretary of the Department of ) STATES MAGISTRATE JUDGE 15 Homeland Security, et al., ) ) 16 ) Respondents. ) 17 _____________________________ ) 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the “Application for 19 Issuance of Order to Show Cause Pursuant to 28 U.S.C. § 2243” (including the 20 attachment thereto) and the subsequent submissions made by petitioner, all of 21 which the Court collectively construes to be a Petition for Writ of Habeas Corpus 22 under 28 U.S.C. section 2241 (“Petition”), all of respondent’s submissions, and all 23 of the records herein, including the September 9, 2019 Report and 24 Recommendation of United States Magistrate Judge (“Report and 25 Recommendation”), petitioner’s reply to respondent’s update re status of removal 26 filed on September 12, 2019 (Docket No. 19), petitioner’s objections to the Report 27 and Recommendation filed on September 30, 2019 and October 4, 2019 (which 28 1 are identical in substance) (Docket Nos. 23, 25, the “Objections”), and 2 respondent’s response to the Objections filed on October 29, 2019 (Docket No. 3 30). 4 The Court has made a de novo determination of those portions of the Report 5 and Recommendation to which objection is made. The Court concurs with and 6 accepts the findings, conclusions, and recommendations of the United States 7 Magistrate Judge, and overrules the Objections. 8 Petitioner suggests that the Report and Recommendation’s reference to 9 petitioner’s claim of citizenship as for “derivative citizenship” – where he asserts 10 that his claim is for “acquired citizenship” under 8 U.S.C. § 1409(a)) – is evidence 11 that the Magistrate Judge did not pay attention to detail. (Objections at 2, 8). 12 Derivative citizenship applies where, as here, one alleges “acquisition of U.S. 13 citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a 14 citizen of another nation.” See Sessions v. Morales-Santana, 137 S. Ct. 1678, 15 1686 (2017) (citing, inter alia, 8 U.S.C. § 1409(a)); see also Tiznado-Reyna v. 16 Barr, 753 Fed. Appx. 431 (9th Cir. 2019) (observing that if petitioner proved that 17 his father was born in the United States, it would have entitled to petitioner to 18 “derivative citizenship” under 8 U.S.C. §§ 1401(g), 1409(a)). There is nothing in 19 the Report and Recommendation suggesting that the Magistrate Judge did not 20 carefully consider petitioner’s claims in making the recommendations therein. 21 Additionally, as noted above, the undersigned has reviewed all of the submissions 22 in this case in reaching this decision. 23 For the reasons detailed in the Report and Recommendation, the Court 24 agrees that requiring prudential exhaustion of petitioner’s challenge to the legality 25 of his detention is appropriate in this case. Hernandez v. Sessions, 872 F.3d 976, 26 988 (9th Cir. 2017). 27 28 2 1 IT IS THEREFORE ORDERED that the Petition is denied and this action is 2 || dismissed without prejudice. The Clerk shall enter judgment accordingly. 3 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 4 || the Judgment herein on petitioner and counsel for respondent. 5 IT IS SO ORDERED. oy 6 DATED: October 31, 2019 Ye Ys Bo 7 8 9 HONORABLE OTIS D. WRIGHT, II 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28