(HC) Mousa v. Immigration & Customs Enforcement ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MOHAMED SALADDIN MOUSA, Case No. 1:19-cv-01164-LJO-EPG-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 13 v. PETITIONER’S MOTIONS FOR DISMISSAL OF DETAINER, DISMISSING 14 IMMIGRATION & CUSTOMS PETITION FOR WRIT OF HABEAS ENFORCEMENT, et al., CORPUS, AND DIRECTING CLERK OF 15 COURT TO CLOSE CASE Respondents. 16 (ECF Nos. 16, 17, 22, 23, 25) 17 18 Petitioner is proceeding pro se with a petition for writ of habeas corpus challenging an 19 immigration detainer. On October 7 and 10, 2019, the Magistrate Judge issued Findings and 20 Recommendations that recommended denying Petitioner’s multiple motions for dismissal of the 21 immigration detainer and dismissing the petition. (ECF Nos. 22, 25). These Findings and 22 Recommendations were served on Petitioner and contained notice that any objections were to be 23 filed within thirty (30) days of the date of service of the findings and recommendation. To date, 24 Petitioner has filed no objections, and the time for doing so has passed. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 27 the Findings and Recommendation is supported by the record and proper analysis. /// 1 The basis of the Magistrate Judge’s recommendation of dismissal was that this Court 2 lacked jurisdiction to adjudicate a habeas claim challenging Petitioner’s immigration detainer 3 because Petitioner was not in the custody of the Department of Homeland Security or 4 Immigrations and Customs Enforcement (“ICE”). (ECF No. 22 at 3; ECF No. 25 at 1–2). The 5 Court notes that it appears Petitioner has been moved into ICE custody.1 However, “§ 2241 6 requires the petitioner to be ‘in custody’ at the time of filing for the federal courts to have 7 jurisdiction over a habeas petition.” Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1019 8 (9th Cir. 2014) (emphasis added) (citing Abdala v. INS, 488 F.3d 1061, 1063–64 (9th Cir. 9 2007)). At the time of filing, Petitioner was in the custody of the California Department of 10 Corrections and Rehabilitation, and the Ninth Circuit has held that a “bare detainer letter alone 11 does not sufficiently place an alien in INS custody to make habeas corpus available.” Garcia v. 12 Taylor, 40 F.3d 299, 303 (9th Cir. 1994), superseded by statute on other grounds as stated in 13 Campos v. Immigration & Naturalization Serv., 62 F.3d 311, 314 (9th Cir. 1995). See Zolicoffer 14 v. U.S. Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (“Most of the circuit courts that have 15 considered the question have held that [an immigration] detainer does not place a prisoner in 16 ‘custody’ for purposes of habeas proceedings.”) 17 Moreover, to the extent that Petitioner attempts to litigate any defense to his removal 18 proceedings, this Court lacks jurisdiction to address his claims. See 8 U.S.C. § 1252(b)(9) 19 (“Judicial review of all questions of law or fact . . . arising from any action taken or proceeding 20 brought to remove an alien from the United States . . . shall be available only in judicial review 21 of a final order of removal . . . .”); 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed with an 22 appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an 23 order of removal . . . .”). 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendations issued on October 7 and 10, 2019 (ECF Nos. 22, 26 25) are ADOPTED; 27 1 This is based on a notice of change of address filed in Petitioner’s other case before this Court, Mousa v. Trump 1 2. Petitioner’s motions to dismiss the immigration detainer (ECF Nos. 16, 17, 23) are 2 DENIED; 3 3. The petition for writ of habeas corpus is DISMISSED; and 4 4. The Clerk of Court is DIRECTED to CLOSE the case. 5 IT IS SO ORDERED. 6 7 Dated: January 4, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27