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Ventura-Pineda v. Secretary, Department of Homeland Security

United States District Court, S.D. Ohio, Western Division

July 17, 2019

MANUEL DEJESUS VENTURA-PINEDA, Petitioner,
v.
SECRETARY, DEPARTMENT OF HOMELAND SECURITY, et al. Respondents.

          Barrett, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Petitioner, through counsel, has filed a petition for a writ of habeas corpus in this Court. (Doc. 1). This matter is currently before the Court on the petition and respondent's return of writ (Doc. 9), to which petitioner has not responded. For the reasons stated below, it is recommended that the petition be denied.

         I. BACKGROUND

         Petitioner, a native and citizen of El Salvador, was arrested by the City of Cincinnati Police Department on July 23, 2017. (Doc. 9-1, Rippe Decl. at PageID 58). Immigration and Customs Enforcement (ICE) became aware of petitioner because of the charges.

         A warrant of arrest was issued on or about July 25, 2017 by an immigration officer. The warrant stated it was based on probable cause that petitioner is removable from the United States. A Notice to Appear was issued charging petitioner as removable pursuant to INA § 212(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. (Id. at PageID 59). Petitioner was detained at the Butler County Jail from July 25, 2017 until August 22, 2017, when he was released on bond during the pendency of his removal proceedings.

         On July 27, 2018, petitioner was arrested by the City of Cincinnati Police Department and charged with assault. On the same date, ICE lodged a detainer with the Hamilton County Jail, requesting notification of petitioner's release. The detainer form indicated that probable cause exists that petitioner was a removable alien based on “[b]iometric confirmation of the alien's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” (See id., Ex. 5 at PageID 69). A Warrant for Arrest of Alien form was also issued by an immigration officer. (Doc. 1-1 at PageID 24).

         Later that day, petitioner entered a plea of not guilty to the charges and was granted $1, 500.00 bond at his arraignment hearing. (Doc. 1 at PageID 7). Petitioner states that the Hamilton County Sheriff informed him that upon posting bond that petitioner would be transferred to ICE custody at the Butler County Jail. Petitioner elected to remain in the custody of Hamilton County rather than post bond.

         On October 5, 2018, petitioner was convicted of disorderly conduct-a lesser included offense-and sentenced to time served. Petitioner was immediately re-arrested by ICE and taken to Butler County Jail.[1]

         II. PETITION AND RETURN OF WRIT

         In the “Petition for a Writ of Habeas Corpus, Declaratory Judgment, Injunctive Relief & a Judicial Order for Release from Unconstitutional Detention by the United States, ” petitioner claims that he was unconstitutionally detained pending removal proceedings. (Doc. 1). Specifically, petitioner claims that the immigration detainer and warrant for arrest amounted to a new arrest and were carried out without probable cause. He further contends his equal protection and due process rights were violated. Finally, petitioner seeks damages pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

         After the Hamilton County Sheriff filed a motion to dismiss on the ground that petitioner was no longer at the Hamilton County Jail, petitioner filed a notice of voluntary dismissal, dismissing the sheriff as a respondent to this action. (Doc. 7, 10).

         The remaining respondents filed a return of writ in opposition to the petition. (Doc. 9). According to respondents, petitioner's detention is authorized by statute and constitutionally permissible.[2] With respect to petitioner's Bivens claims, respondents contend that petitioner failed to perfect service of process as required by Fed.R.Civ.P. 4. (See Id. at PageID 53, n.3).

         III. ...


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