Marcos Lomeli v. Katrina Kane

FILED
NOT FOR PUBLICATION MAR 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS ANTONIO LOMELI, No. 09-17153
Petitioner - Appellant, D.C. No. 2:08-cv-00955-PGR
v.
MEMORANDUM*
KATRINA S. KANE, Field Office
Director for the Phoenix Field Office of
ICE; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted March 3, 2014
Pasadena, California
Before: BYBEE, BEA, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lomeli appeals the district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2241(c). We have jurisdiction pursuant to 28 U.S.C.
§ 2253, and we affirm.1
We decline to entertain Lomeli’s challenge to the procedures used at his
bond hearing pursuant to Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008),
and Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). Following our decision in
Singh, the government in this case moved the immigration judge (IJ) to conduct a
new bond hearing with a contemporaneous audio record. The IJ denied the motion
because Lomeli opposed the new bond hearing, stating that he wanted the original
bond hearing to stand. In light of these circumstances, we conclude that Lomeli
failed to exhaust his argument that the IJ did not provide sufficiently specific
reasons on the record to justify the denial of bond. See Leonardo v. Crawford, 646
F.3d 1157, 1160–61 (9th Cir. 2011); cf. Singh, 638 F.3d at 1203 n.3.
Lomeli’s continued detention does not violate due process because “the
government can repatriate [Lomeli] to Mexico if his pending bid for judicial relief
from his administratively final removal order proves unsuccessful.” Prieto-
1
The motion for leave to file brief as amicus curiae by the Florence
Immigrant and Refugee Rights Project is GRANTED and the brief that was lodged
is ordered filed. Petitioner Marcos Lomeli’s pro se motion to amend the amicus
brief is DENIED.
2
Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008). Lomeli has presented no
evidence, “such as a lack of a repatriation agreement with his home country or a
finding that he merits mandatory relief from removal, that prevents [Lomeli’s]
removal to [Mexico] if he ultimately fails in fighting the government’s charge of
removability.” Casas-Castrillon, 535 F.3d at 949. His detention is therefore not
indefinite.
Finally, we reject Lomeli’s claim that Immigration and Customs
Enforcement lacks the authority to detain him during the pendency of his
citizenship litigation. Lomeli’s claim of citizenship has been rejected three times
by the United States Customs and Immigration Services, and once by a federal
district court. These decisions are binding determinations that Lomeli is an alien,
and therefore the Attorney General is empowered under 8 U.S.C. § 1226(a) to
detain him pending review. Cf. Ng Fung Ho v. White, 259 U.S. 276, 285 (1922);
Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 2008).
AFFIRMED.
3