1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NECTALI ROMERO-ROMERO, No. 1:24-cv-00944 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. 11)
14 MINGA WOFFORD, Facility ORDER GRANTING RESPONDENT’S Administrator, MOTION TO DISMISS, DISMISSING 15 PETITION FOR WRIT OF HABEAS Respondent. CORPUS AND DIRECTING CLERK OF 16 COURT TO ENTER JUDGMENT AND CLOSE CASE 17 [NO CERTIFICATE OF APPEALABILITY IS 18 REQUIRED] 19 Nectali Romero-Romero is detained by the Bureau of Immigration and Customs 20 Enforcement and proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 21 2241. He is represented by the San Francisco Public Defender’s Office. 22 On October 29, 2024, Respondent filed a motion to dismiss the petition. Petitioner filed an 23 opposition on November 19, 2024. This matter was referred to a United States Magistrate Judge 24 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 25 On February 4, 2025, the assigned Magistrate Judge issued Findings and 26 Recommendations to grant Respondent’s motion to dismiss the petition. (Doc. 11). The Court 27 served the Findings and Recommendations on the parties and notified them that any objections 28 were due within 21 days. (Id.). The Court advised the parties that “failure to file objections within 1 the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 2 772 F.3d 834, 838-39 (9th Cir. 2014)). On February 25, 2025, Petitioner filed objections.1 (Doc. 3 12). Respondent did not file objections, and the time to do so has passed. 4 As noted by the Magistrate Judge, Petitioner’s claim that his mandatory, prolonged 5 detention as a criminal alien pursuant to 8 U.S.C. § 1226(c) has become excessive, punitive and a 6 denial of substantive due process, fails. For example, the case presents compelling regulatory 7 goals in relation to detention including protection of the public and successful removal if ordered. 8 (See e.g., Doc. 11 at 8-14 citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208 (9th Cir. 2022)). 9 These are governmental interests that “only increase with the passage of time.” Rodriguez Diaz at 10 1208; see also United States v. Torres, 995 F.3d 695, 708 (citing United States v. Salerno, 481 11 U.S. 739, 747 (1987)) (“A due process violation occurs when detention becomes punitive rather 12 than regulatory, meaning there is no regulatory purpose that can rationally be assigned to the 13 detention or the detention appears excessive in relation to its regulatory purpose.”). Moreover, 14 Petitioner has not provided authority that the presumption of punitive conditions raised by 15 comparative carceral conditions extends to the immigration context. See Fraihat v. U.S. Immigr. 16 & Customs Enf't, 16 F.4th 613, 649 (9th Cir. 2021) (“The record lacks evidence from which to 17 draw any relevant comparisons between the overall conditions of confinement of ICE detainees as 18 compared to those in criminal custody.”). 19 Additionally, “[d]ue process does not require immigration courts consider conditional 20 release when determining whether to continue to detain an alien under § 1226(c) as a danger to 21 the community.” Martinez v. Clark, 124 F.4th 775, 786 (9th Cir. 2024); see also Espinoza v. 22 Wofford, 2025 WL 1556590, at *9 (E.D. Cal. June 2, 2025) (citing Demore v. Kim, 538 U.S. 510, 23 523, 528) (“[W]hen the Government deals with deportable aliens, the Due Process Clause does 24 not require it to employ the least burdensome means to accomplish its goal.”). In any event and 25 for purposes of substantive due process, alternatives to detention do not obviate the regulatory 26 purposes and goals served by detention and mitigate dangerousness given the facts and 27 1 The Court has considered Petitioner’s overlength objections and attached exhibit, and his 28 supplemental authorities. (Docs. 12m 12-1, 12-2, 13 & 14). 1 circumstances of the case. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (quoting 2 Jackson v. Indiana, 406 U.S. 715, 738 (1972)) (requiring that “the nature and duration of 3 commitment bear some reasonable relation to the purpose for which the individual is 4 committed”). As this Court has observed “the Ninth Circuit has upheld detention that lasted forty- 5 one months and would continue while the petitioner's petition for review was pending in the 6 Ninth Circuit. Espinoza, 2025 WL 1556590, at *10 (citing Prieto-Romero v. Clark, 534 F.3d 7 1053 (9th Cir. 2008)). 8 Informing these conclusions are the procedural process afforded Petitioner in this case 9 where he is subject to an order of removal, as well as the time required for that process to run its 10 course. The Magistrate Judge observed Petitioner’s numerous applications and petitions for 11 agency and/or judicial relief including as related to detention, asylum, adjustment of status, and 12 removal, and the stay of removal imposed by the Ninth Circuit. For example, Petitioner has 13 received multiple individualized bond reviews and hearings in response to claims that his 14 detention at and conditions of the Golden State Annex have become unreasonable and unjustified. 15 In January 2024, the Board of Immigration Appeals affirmed the reasoned decision of an 16 Immigration Judge that Petitioner presents a danger to the public. (See Doc. 8-28, IJ Bond 17 Decision, October 11, 2022; Doc. 8-32, BIA Decision Denying Bond, January 31, 2024). 18 To the extent the Magistrate Judge erred by concluding the exercise of agency discretion 19 was unreviewable for errors of law (see Doc. 11 at 8; Doc. 12 at 7-8; Martinez, 124 F.4th at 784), 20 the Court finds Petitioner has not shown on deferential review agency error in applying BIA 21 precedent to the unreviewable agency fact finding, including for reasons discussed by the 22 Magistrate Judge.2 (See e.g., Doc. 11 at 11-14; see also Doc. 8-28; Doc. 8-32; Martinez, 124 F.4th 23 at 783 (citing In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006)), abrogated on other grounds by 24 Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) (setting out factors an IJ may consider 25 regarding whether an alien who seeks a change in custody status is a threat to national security, a 26 2 Petitioner’s objection that the Magistrate Judge relied upon the previously vacated decision in 27 Martinez v. Clark, 36 F.4th 1219 (9th Cir. 2022), is sustained. The Findings and Recommendations are corrected to reflect the decision upon remand in that case, 124 F.4th 775 28 (9th Cir. 2024). 1 danger to the community at large, likely to abscond, or otherwise a poor bail risk, including “the 2 alien's criminal record, including the extensiveness of criminal activity, the recency of such 3 activity, and the seriousness of the offenses.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NECTALI ROMERO-ROMERO, No. 1:24-cv-00944 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. 11)
14 MINGA WOFFORD, Facility ORDER GRANTING RESPONDENT’S Administrator, MOTION TO DISMISS, DISMISSING 15 PETITION FOR WRIT OF HABEAS Respondent. CORPUS AND DIRECTING CLERK OF 16 COURT TO ENTER JUDGMENT AND CLOSE CASE 17 [NO CERTIFICATE OF APPEALABILITY IS 18 REQUIRED] 19 Nectali Romero-Romero is detained by the Bureau of Immigration and Customs 20 Enforcement and proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 21 2241. He is represented by the San Francisco Public Defender’s Office. 22 On October 29, 2024, Respondent filed a motion to dismiss the petition. Petitioner filed an 23 opposition on November 19, 2024. This matter was referred to a United States Magistrate Judge 24 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 25 On February 4, 2025, the assigned Magistrate Judge issued Findings and 26 Recommendations to grant Respondent’s motion to dismiss the petition. (Doc. 11). The Court 27 served the Findings and Recommendations on the parties and notified them that any objections 28 were due within 21 days. (Id.). The Court advised the parties that “failure to file objections within 1 the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 2 772 F.3d 834, 838-39 (9th Cir. 2014)). On February 25, 2025, Petitioner filed objections.1 (Doc. 3 12). Respondent did not file objections, and the time to do so has passed. 4 As noted by the Magistrate Judge, Petitioner’s claim that his mandatory, prolonged 5 detention as a criminal alien pursuant to 8 U.S.C. § 1226(c) has become excessive, punitive and a 6 denial of substantive due process, fails. For example, the case presents compelling regulatory 7 goals in relation to detention including protection of the public and successful removal if ordered. 8 (See e.g., Doc. 11 at 8-14 citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208 (9th Cir. 2022)). 9 These are governmental interests that “only increase with the passage of time.” Rodriguez Diaz at 10 1208; see also United States v. Torres, 995 F.3d 695, 708 (citing United States v. Salerno, 481 11 U.S. 739, 747 (1987)) (“A due process violation occurs when detention becomes punitive rather 12 than regulatory, meaning there is no regulatory purpose that can rationally be assigned to the 13 detention or the detention appears excessive in relation to its regulatory purpose.”). Moreover, 14 Petitioner has not provided authority that the presumption of punitive conditions raised by 15 comparative carceral conditions extends to the immigration context. See Fraihat v. U.S. Immigr. 16 & Customs Enf't, 16 F.4th 613, 649 (9th Cir. 2021) (“The record lacks evidence from which to 17 draw any relevant comparisons between the overall conditions of confinement of ICE detainees as 18 compared to those in criminal custody.”). 19 Additionally, “[d]ue process does not require immigration courts consider conditional 20 release when determining whether to continue to detain an alien under § 1226(c) as a danger to 21 the community.” Martinez v. Clark, 124 F.4th 775, 786 (9th Cir. 2024); see also Espinoza v. 22 Wofford, 2025 WL 1556590, at *9 (E.D. Cal. June 2, 2025) (citing Demore v. Kim, 538 U.S. 510, 23 523, 528) (“[W]hen the Government deals with deportable aliens, the Due Process Clause does 24 not require it to employ the least burdensome means to accomplish its goal.”). In any event and 25 for purposes of substantive due process, alternatives to detention do not obviate the regulatory 26 purposes and goals served by detention and mitigate dangerousness given the facts and 27 1 The Court has considered Petitioner’s overlength objections and attached exhibit, and his 28 supplemental authorities. (Docs. 12m 12-1, 12-2, 13 & 14). 1 circumstances of the case. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (quoting 2 Jackson v. Indiana, 406 U.S. 715, 738 (1972)) (requiring that “the nature and duration of 3 commitment bear some reasonable relation to the purpose for which the individual is 4 committed”). As this Court has observed “the Ninth Circuit has upheld detention that lasted forty- 5 one months and would continue while the petitioner's petition for review was pending in the 6 Ninth Circuit. Espinoza, 2025 WL 1556590, at *10 (citing Prieto-Romero v. Clark, 534 F.3d 7 1053 (9th Cir. 2008)). 8 Informing these conclusions are the procedural process afforded Petitioner in this case 9 where he is subject to an order of removal, as well as the time required for that process to run its 10 course. The Magistrate Judge observed Petitioner’s numerous applications and petitions for 11 agency and/or judicial relief including as related to detention, asylum, adjustment of status, and 12 removal, and the stay of removal imposed by the Ninth Circuit. For example, Petitioner has 13 received multiple individualized bond reviews and hearings in response to claims that his 14 detention at and conditions of the Golden State Annex have become unreasonable and unjustified. 15 In January 2024, the Board of Immigration Appeals affirmed the reasoned decision of an 16 Immigration Judge that Petitioner presents a danger to the public. (See Doc. 8-28, IJ Bond 17 Decision, October 11, 2022; Doc. 8-32, BIA Decision Denying Bond, January 31, 2024). 18 To the extent the Magistrate Judge erred by concluding the exercise of agency discretion 19 was unreviewable for errors of law (see Doc. 11 at 8; Doc. 12 at 7-8; Martinez, 124 F.4th at 784), 20 the Court finds Petitioner has not shown on deferential review agency error in applying BIA 21 precedent to the unreviewable agency fact finding, including for reasons discussed by the 22 Magistrate Judge.2 (See e.g., Doc. 11 at 11-14; see also Doc. 8-28; Doc. 8-32; Martinez, 124 F.4th 23 at 783 (citing In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006)), abrogated on other grounds by 24 Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) (setting out factors an IJ may consider 25 regarding whether an alien who seeks a change in custody status is a threat to national security, a 26 2 Petitioner’s objection that the Magistrate Judge relied upon the previously vacated decision in 27 Martinez v. Clark, 36 F.4th 1219 (9th Cir. 2022), is sustained. The Findings and Recommendations are corrected to reflect the decision upon remand in that case, 124 F.4th 775 28 (9th Cir. 2024). 1 danger to the community at large, likely to abscond, or otherwise a poor bail risk, including “the 2 alien's criminal record, including the extensiveness of criminal activity, the recency of such 3 activity, and the seriousness of the offenses.”). Petitioner’s re-argument of his opposition to the 4 motion to dismiss, considered by the Magistrate Judge, is not persuasive. (See Doc. 11; Docs. 9 & 5 12 citing Doe v. Becerra, 723 F.Supp.3d 688 (N.D. Cal. 2024); Torres; Salerno; Jones; Wong 6 Wing v. United States, 163 U.S. 228 (1896)). 7 Finally, the Magistrate Judge concluded correctly that while Petitioner’s mandatory 8 detention might become excessive and punitive, that point has not been reached. (See Doc. 11 at 9 15 n.5). The Court observes the matter is back before the Ninth Circuit on petition for review 10 following the BIA’s January 14, 2025 denial of Petitioner’s motion to reopen, with oral hearing 11 set for November 17, 2025. Romero-Romero v. Bondi, Case No. 25-284, Doc. 37. Petitioner’s 12 mandatory detention will terminate upon conclusion of removal proceedings. 13 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 14 case. Having carefully reviewed the matter, the Court concludes the Findings and 15 Recommendations, as corrected herein, are supported by the record and proper analysis. 16 In the event a notice of appeal is filed, a certificate of appealability will not be required 17 because this is an order denying a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, 18 not a final order in a habeas proceeding in which the detention complained of arises out of 19 process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997). 20 Based upon the foregoing, the Court ORDERS: 21 1. The Findings and Recommendations issued on February 4, 2025, (Doc. 11), as 22 corrected herein, are ADOPTED in full. 23 2. Respondent’s motion to dismiss (Doc. 8), is GRANTED. 24 3. The petition for writ of habeas corpus is DISMISSED. 25 4. The Clerk of Court is directed to enter judgment and close the case. 26 /// 27 /// 28 /// 1 5. In the event a notice of appeal is filed, no certificate of appealability is required. 2 3 IT IS SO ORDERED. | Dated: _ November 12, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28