The opinion of the court was delivered by: Chief Judge Kane
(Magistrate Judge Carlson)
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Martin Carlson (Doc. No. 9), which recommends that Petitioner Aris Ramirez-Alvarez's petition filed pursuant to 28 U.S.C. § 2241 be denied. Petitioner has filed objections to the R&R. (Doc. No. 10.) The Court has reviewed Petitioner's objections and has found them to be without merit. Accordingly, the Court will adopt the R&R in full.
Petitioner is a native of El Salvador who has illegally entered the United States twice. (Doc. No. 1 at 5-7.) In 1999, Petitioner was arrested and subsequently convicted in California for robbery and possession of ammunition. (Id. at 5.) While on bail following the conviction, Petitioner returned to El Salvador where he was detained on homicide charges until October 2000. (Id.) This detention caused Petitioner to fail to appear at an immigration hearing scheduled in July 2000, at which an immigration judge ordered Petitioner's removal from the United States. (Doc. No. 7 at 2.) Following release, Petitioner returned to California. In 2003, after completing his state robbery sentence in California, Petitioner was removed from the United States. (Doc. No. 1 at 5.)
In 2004, following his removal, Petitioner was arrested in Texas and charged with illegal re-entry. (Id.) Pursuant to 8 U.S.C. § 1231(a)(5), a warrant for Petitioner's removal was issued in 2005 based on his prior removal order. (Doc. No. 7-1 at 7.) Petitioner sought to avoid removal by seeking asylum under the Nations Convention Against Torture ("CAT"), alleging that he would be the target of a gang-related "honor killing" if he returned to El Salvador. (Id. at 6.) An immigration judge denied Petitioner's requests for asylum, Petitioner waived his right to appeal the decision, and Petitioner was thereafter removed from the United States a second time in 2005. (Id. at 23.)
In 2007, Petitioner was arrested in Texas and subsequently convicted of illegal re-entry into the United States. (Doc. No. 1 at 7.) Petitioner was sentenced to 63 months incarceration as a result of that immigration offense conviction. (Id.) During this incarceration, Petitioner was interviewed by immigration officials and recommended for expedited removal. (Doc. No. 7-1 at 21.) An order of removal pursuant to 8 U.S.C. § 1225(b)(1) was issued and served upon Petitioner in October 2011. (Doc. No. 7-1 at 24.) Petitioner has been in the custody of ICE officials since September 30, 2011. (Doc. No. 1 at 8.)
On November 9, 2011, Petitioner filed a petition for relief pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) In this petition for relief, Petitioner challenges the duration of his detention pending removal from the United States. (Id. at 12.) Petitioner further argues that the 2005 removal order and the denial of his CAT asylum request violated his constitutional rights. (Id. at 1, 6-7.) Petitioner asks the Court to conduct a de novo review of the immigration judge's decision and invalidate the decision leading to his initial removal order and denial of asylum.
C. Report and Recommendation
On December 14, 2011, Magistrate Judge Carlson issued an R&R, recommending that Petitioner's petition for habeas corpus relief be denied. (Doc. No. 9.) First, Magistrate Judge Carlson found that Petitioner's challenge to his detention pending removal must fail because the length of that detention has not exceeded the presumptive reasonableness threshold as interpreted by the Supreme Court. (Id. at 12.) Next, Magistrate Judge Carlson recommended that the Court deny Petitioner's request to review and invalidate the immigration judge's decision to order Petitioner's removal from the United States and deny him asylum under CAT, because 8 U.S.C. § 1252(a)(5) expressly bars district courts from reviewing decisions made by immigration judges related to CAT. (Id. at 9-10.)
The Magistrate Act, 28 U.S.C. § 636, and Rule 72(b) of the Federal Rules of Civil Procedure, provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify the R&R, the Court is to make a de novo determination of ...