“Ordinarily, an alien is required to 22 exhaust his administrative remedies by first appealing to the BIA before petitioning to this 23 court. This is a jurisdictional requirement.”
How later courts described this case
- “Ordinarily, an alien is required to 22 exhaust his administrative remedies by first appealing to the BIA before petitioning to this 23 court. This is a jurisdictional requirement.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JACQUELINE LOUISA GENTLE, Case No.: 19cv2213-GPC(JLB)
12 Petitioner,
ORDER DENYING PETITIONER’S
13 v. MOTION FOR TEMPORARY
RESTRAINING ORDER AND
14 WILLIAM BARR, Attorney General, et
DISMISSING PETITION FOR WRIT
als.
15 OF HABEAS CORPUS UNDER 28
Respondents. U.S.C. § 2241 AS PREMATURE
16
17 [Dkt. No. 4.]
18
On November 11, 2019, Petitioner Jacqueline Louisa Gentle (“Petitioner”), a
19
detainee at the Otay Mesa Detention Facility in the custody of the U.S. Department of
20
Homeland Security, Bureau of Immigration and Customs Enforcement, proceeding pro se
21
and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
22
§ 2241. (Dkt. No. 1.) On December 10, 2019, Petitioner filed a motion for temporary
23
restraining order enjoining ICE from removing her from the United States until the Court
24
decided the merits of her petition. (Dkt. No. 4.) Respondent filed an opposition on
25
December 18, 2019. (Dkt. No. 7.) Based on the reasoning below, the Court DENIES
26
Petitioner’s motion for temporary restraining order and DISMISSES the petition as
27
premature.
28
1 Background
2 Petitioner is a native and citizen of Belize. (Dkt. No. 7-2, Prime Decl., Ex. A at 31.)
3 On or about December 19, 2012, the Department of Homeland Security (“DHS”) initiated
4 removal proceedings against Petitioner when it filed a Notice to Appear (“NTA”) with the
5 immigration court in Las Vegas, Nevada, charging her with removability pursuant to 8
6 U.S.C. § 1227(a)(1)(A) as an alien who was not in possession of a valid document at the
7 time of entry. (Id., Exs. B, D.) ICE alleged that she was not a citizen or national of the
8 United States and was admitted to the United States on or about May 19, 2007, with a
9 fraudulently obtained U.S. passport. (Id., Ex. B.)
10 On December 11, 2012, Petitioner was indicted for making a false statement on an
11 application for a U.S. passport in violation of 18 U.S.C. § 1542, among other crimes. See
12 U.S. v. Williams, et al., Case No. 2:12-cr-00463-JCM-VCF (D. Nev.), Dkt. No. 1
13 (Indictment). On January 8, 2013, the U.S. Department of State issued a letter to Petitioner
14 informing her it had revoked the U.S. passport issued to her on February 11, 2010. (Dkt.
15 No. 7-2, Prime Decl., Ex. C.)
16
On June 3, 2013, Petitioner’s removal proceedings were administratively closed
17
because she was in U.S. Marshal custody for her criminal case. (Id., Ex. D at 15.) On
18
January 15, 2016, after a jury trial, Petitioner was found guilty of counts 4, 5, 7, 9, 10, 24,
19
25, 26 and 27 of the third superseding indictment. See U.S. v. Williams et als., Case No.
20
2:12-cr-00463-JCM-VCF (D. Nev.), Dkt. No. 725 (Jury Verdict). Specifically, count five
21
charged Petitioner with having, on or about February 11, 2010, knowingly made a false
22
statement on an application for a U.S. passport, with the intent to secure for her own use
23
the issuance of a U.S. passport, in that she stated that her father was “A. Gentle,” a U.S.
24
Citizen, born in Alabama, which she knew to be false in violation of 18 U.S.C. § 1542.
25
(Dkt. No. 7-2, Prime Decl., Ex. E at 34.) Petitioner was initially sentenced to an aggregate
26
27
28
1 term of 65 months in prison, U.S. v. Williams et als., Case No. 2:12-cr-00463-JCM-VCF
2 (D. Nev.), Dkt. No. 815 at 3, but appealed her conviction and, on March 22, 2018, the
3 Ninth Circuit affirmed her conviction, vacated her sentence and remanded the matter for
4 re-sentencing because the district court did not make the required findings to support a
5 “two-level enhancement for obstruction of justice.” (Dkt. No. 7-2, Prime Decl., Ex. G at
6 68.) On January 15, 2019, Petitioner was resentenced to time served. (Id., Ex. F.)
7 Petitioner’s motion for post-conviction relief under 28 U.S.C. 2255 is currently pending in
8 the District of Nevada. U.S. v. Williams, et al., Case No. 2:12-cr-00463-JCM-VCF (D.
9 Nev.), Dkt. Nos. 951, 978.
10 Once Petitioner was released from prison, Petitioner’s removal proceedings were re-
11 calendared and she appeared, pro se, before an Immigration Judge (“IJ”) at the Las Vegas
12 Immigration Court on January 30, 2019. (Dkt. No. 7-2, Prime Decl., Ex. D at 15-16.)
13 Continuances were granted for DHS to obtain conviction records and for Petitioner to retain
14 counsel. (Id. at 16.) On April 4, 2019, DHS transferred Petitioner to the Otay Mesa
15 Detention Facility and requested a change of venue to the Otay Mesa Immigration Court,
16 which was granted. (Id. at 16.) Petitioner appeared, pro se, before the IJ at the Otay Mesa
17 Immigration Court on April 30, 2019. Id. Petitioner informed the IJ that her father was a
18 U.S. citizen, and the IJ explained that it was her burden to demonstrate that she acquired
19 U.S. citizenship. (Id.) Petitioner sought time to locate evidence of her father’s presence in
20 the United States, and the IJ granted several continuances for Petitioner to locate records
21 pertaining to her father. (Id. at 17-19.) After numerous hearings, the Court set a final filing
22 deadline of October 23, 2019 to file any documents in support of her claim to U.S.
23 citizenship. (Id. at 19.) On November 6, 2019, the IJ issued a decision that Petitioner be
24 removed from the United States to Belize as outlined in the NTA. (Id.) In her decision,
25 the IJ considered whether Respondent had any avenue to remain in the United States. (Id.)
26 The IJ concluded that “Respondent failed to meet her burden to demonstrate she acquired
27 United States citizenship and birth through her purported United States citizen father.” (Id.
28 at 29.) The IJ also found Respondent did not harbor fear of returning to Belize and thus,
1 was not eligible for fear-based humanitarian relief and her criminal history made her
2 ineligible for other forms of relief from removal. (Id.) On or about November 21, 2019,
3 Petitioner filed a Notice of Appeal to the Board of Immigration Appeals (“BIA”), and the
4 appeal remains pending. (Id., Ex. J; 8 C.F.R. § 1003.38(c) (“The date of filing of the Notice
5 of Appeal (Form EOIR-26) shall be the date the Notice is received by the Board.”). When
6 an appeal of an IJ’s decision is filed, an automatic stay of removal is imposed. See 8 C.F.R.
7 § 1003.6.
8 Subsequently, on October 2 and 7, 2019, Petitioner appeared before the IJ for
9 custody redetermination hearings pursuant to Franco-Gonzalez v. Holder, 2013 WL
10 3674492 (C.D. Cal. Apr. 23, 2013). (Id., Ex. H.) On November 5, 2019, the IJ found that
11 DHS met its burden to demonstrate, by clear and convincing evidence, that Petitioner is an
12 extreme flight risk. (Id. at 72.) Petitioner appealed the bond decision to the BIA, and the
13 appeal remains pending. (Id., Ex. I.)
14 On November 11, 2019, Petitioner filed the petition in this case challenging the IJ’s
15 bond determination and seeking immediate release from custody. (Dkt. No. 1.) On
16 December 10, 2019, Petitioner filed a temporary restraining order enjoining ICE from
17 deporting her until the Court rules on the merits of her petition. (Dkt. No. 4.) Respondent
18 filed a response seeking dismissal of the petition and denial of the temporary restraining
19 order motion as premature. (Dkt. No. 7.)
20
Discussion
21
Petitioner seeks a temporary restraining order barring ICE from removing her to
22
Belize until the Court rules on her petition. (Dkt. No. 4.) Respondent argues that because
23
she has appealed the IJ’s decision denying her citizenship claim to the BIA, an automatic
24
stay is imposed by 8 C.F.R. § 1003.62 and she is not subject to removal; therefore, the Court
25
26
27 2 “a) Except as provided under § 236.1 of this chapter, § 1003.19(i), and paragraph (b) of this section,
the decision in any proceeding under this chapter from which an appeal to the Board may be taken shall
28
1 should deny her motion for temporary restraining order. Next, Respondent argues that the
2 bond proceeding being challenged in the instant petition is currently pending before the
3 BIA; therefore, her habeas challenge should be dismissed as premature.
4 The Court agrees with Respondent. First, the temporary restraining order Petitioner
5 seeks is premature. She recently appealed the IJ’s decision of removal around November
6 21, 2019. (Dkt. No. 7-2, Prime Decl. Ex. J at 78.) Filing the appeal triggers the automatic
7 stay of her removal. 8 C.F.R. § 1003.6(a); see Hernandez Culajay v. McAleenan, 396 F.
8 Supp. 3d 477, 481 (E.D. Pa. 2019). The case is still pending with the BIA and Petitioner is
9 not subject to immediate removal. Accordingly, the Court DENIES her motion for
10 temporary restraining order.
11 Next, in the petition, Petitioner challenges the IJ’s decision denying her release by
12 bond because she is a flight risk. (Dkt. No. 1, Pet.) On October 28, 2019, Petitioner filed
13 an appeal of the IJ’s bond decision to the BIA. (Dkt. No. 7-2, Prime Decl., Ex. I.)
14 According to Respondent, no decision has yet been rendered by the BIA. Because
15 Petitioner has failed to exhaust the bond issue with the BIA, her petition is premature. See
16 Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001) (“we require, as a prudential
17 matter, that habeas petitioners exhaust available judicial and administrative remedies
18 before seeking relief under § 2241”). “The exhaustion requirement avoids premature
19 interference with the agency's processes and helps to compile a full judicial record.” Rojas-
20 Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (citation and quotation omitted);
21 Dhangu v. I.N.S., 812 F.2d 455, 460 (9th Cir. 1987) (“Ordinarily, an alien is required to
22 exhaust his administrative remedies by first appealing to the BIA before petitioning to this
23 court. This is a jurisdictional requirement.”). Accordingly, the Court DENIES the petition
24 as premature.
25
/ / /
26
27
is filed, nor shall such decision be executed while an appeal is pending or while a case is before the
28
1 Conclusion
2 The Court DENIES Petitioner’s motion for temporary restraining order and
3 || DISMISSES the petition for writ of habeas corpus as premature. Petitioner may refile her
4 || petition in this Court once the BIA issues its decision.
5 IT IS SO ORDERED.
6 Dated: December 20, 2019 <
8 United States District Judge
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28