Villajin v. Mukasey
Filing
24
ORDER that Petitioner's Motion 23 to Strike is denied and her Objection 21 is overruled. FURTHER ORDERED that the Stay of Removal 14 entered on July 8, 2008 is vacated. Signed by Judge David G Campbell on 5/22/09.(KMG)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Maria L. Villajin, Petitioner, vs. Michael Mukasey, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) No. CV 08-0839-PHX-DGC (ECV) ORDER WO
JKM
On July 8, 2008, the Court granted Petitioner's request for a preliminary stay of removal pending resolution of her underlying Petition for Writ of Habeas Corpus. (Doc. #14.) The Court expressed concern, however, about issues that were not addressed by the parties, and so required additional briefing. The underlying Petition has been referred to Magistrate Judge Edward C. Voss for a report and recommendation, but the reference was withdrawn with respect to the additional briefing. When it granted a preliminary stay of removal in this case, the Court relied on the standard for stays set forth in Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc). That standard was recently partially repudiated by the Supreme Court in Nken v. Holder, No. 08-681, 2009 WL 1065976 (U.S. Apr. 22, 2009). In light of the parties' additional briefing and the newly announced standard for stays of removal, the Court will vacate the preliminary stay of removal. I. Background. Petitioner is a native and citizen of the Philippines who was admitted to the United States as a visitor for pleasure on April 21, 1981. On October 3, 1985, Petitioner adjusted
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her status to that of a lawful permanent resident. On July 27, 2006, Petitioner pleaded guilty to three California offenses: (1) commercial burglary in violation of California Penal Code (CPC) § 460(b); (2) grand theft in violation of CPC § 487(a); and (3) forgery in violation of CPC § 470(d). Petitioner was sentenced to consecutive terms of sixteen months in prison on each count. Petitioner represented herself in her immigration proceedings and on August 1, 2007, an Immigration Judge (IJ) entered an order for her removal from the United States. The IJ found that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because her CPC § 460(b) commercial burglary conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) ("a theft offense . . . or burglary offense for which the term of imprisonment [is] at least one year") and because her CPC § 470(d) forgery conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(R) ("an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year"). The IJ also found that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) because her California convictions qualified as convictions for two separate crimes involving moral turpitude. The IJ found that Petitioner's aggravated felony convictions made her ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). Petitioner reserved the right to appeal, but she did not file a timely appeal to the Board of Immigration Appeals (BIA). Petitioner subsequently retained counsel and filed a motion to reopen with the IJ on September 12, 2007. Petitioner argued that her CPC § 460(b) commercial burglary conviction did not qualify as an aggravated felony and that she was, therefore, eligible for cancellation of removal. On September 28, 2007, the IJ denied Petitioner's motion to reopen. On October 18, 2007, Petitioner's counsel filed a timely appeal to the BIA on her behalf. On January 8, 2008, the BIA dismissed Petitioner's appeal. The BIA held that it was
unnecessary to decide whether Petitioner's commercial burglary conviction qualified as an
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aggravated felony because her forgery conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(R), making her removable and ineligible for cancellation of removal. On February 25, 2008, Petitioner filed a pro se petition for review with the United States Court of Appeals for the Ninth Circuit. On April 18, 2008, the Ninth Circuit dismissed the petition for lack of jurisdiction because it was not filed within thirty days of the issuance of the BIA's order. Villajin v. Mukasey, No. 08-70764 (9th Cir. April 18, 2008). The Ninth Circuit noted, however, that the petition was dismissed "without prejudice to the filing of a motion to reissue with the BIA, see Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007), or a petition for writ of habeas corpus with respect to ineffective assistance of counsel in the district court, see Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007)." Id. The Ninth Circuit issued its mandate on May 12, 2008. Id. On May 1, 2008, Petitioner filed this Petition for Writ of Habeas Corpus and presented two claims in support of the Petition. First, she claimed that the BIA should have granted her appeal from the denial of her motion to reopen because none of her California convictions qualify as aggravated felonies. Second, Petitioner claimed that her retained counsel provided her with ineffective assistance by failing to timely notify her of the BIA's decision. Petitioner asserted that her attorney faxed the January 8, 2008 BIA decision to her friend on February 20, 2008, after the deadline for her appeal had run. On July 7, 2008, the Court found that it was without jurisdiction to consider Petitioner's first claim for relief, but that it retained jurisdiction over Petitioner's second claim. (Doc. #14.) The Court also granted Petitioner's application for a preliminary stay of removal. (Id.) The Court's ruling on the stay of removal, however, was tentative. The Court required Petitioner to comply with the second and third elements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), by informing her former counsel of her allegations and giving him an opportunity to respond, and by reporting whether she has filed a complaint against her former counsel with the state bar association. The Court also required the parties to brief two questions regarding whether Petitioner's CPC § 470(d) conviction is a categorical match for a forgery conviction under 8 U.S.C. § 1101(a)(43)(R): (1) whether passing a forged -3-
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document as prohibited by CPC § 470(d) meets the federal common law definition of forgery; and (2) whether the provision in § 1101(a)(43)(R) defining as an aggravated felony "offenses relating to . . . forgery" encompasses passing a forged document as prohibited in § 470(d). The parties have briefed the issues raised by the Court. II. Motion to Strike and Objection. The Court required the parties to brief the statutory issues raised by the Court on or before August 8, 2008. (Doc. #14 at 9.) Petitioner's Supplemental Memorandum (Doc. #15) was filed on August 11, 2008, but under the prisoner "`mailbox rule,' . . . a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail." Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002); see also Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) (the "prisoner mailbox rule" applies to civil detainees). Giving Petitioner the benefit of the doubt, and assuming that she delivered her Memorandum to detention officials for mailing on the same date that she signed it August 5, 2009 it will be deemed timely filed. On August 22, 2008, Respondent filed a Motion to Accept Late Filing (Doc. #17), asking for permission to file his Supplemental Brief (lodged at Doc. #18) after expiration of the deadline set by the Court. Magistrate Judge Voss granted Respondent's Motion and his Supplemental Brief was filed at Doc. #20. (Doc. #19). Petitioner has filed a Motion to Strike Respondent's Supplemental Brief (Doc. #23) because Respondent's reasons for the delay do not justify the late filing. Petitioner has also filed a Supplement to her Motion (Doc. #21), objecting to the Magistrate Judge's order granting Respondent leave to file late. In her Supplement, Petitioner argues that the Magistrate Judge was without jurisdiction to grant Respondent's Motion because the supplemental briefing was not referred to the Magistrate Judge. An objection to the determination of a pretrial, non-dispositive matter by a magistrate judge is reviewed by the district judge under a "clearly erroneous or contrary to law" standard. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). This entire case, with the exception of the supplemental briefing, was referred to the Magistrate Judge for all pretrial -4-
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proceedings pursuant to 28 U.S.C. § 636(b)(1)(A), and for a report and recommendation on the merits of the underlying petition pursuant to 28 U.S.C. § 636(b)(1)(B). The Court retained jurisdiction over the supplemental briefing because its ruling on Petitioner's application for a preliminary stay of removal was tentative and still under consideration. The Magistrate Judge's ruling on Respondent's Motion for Late Filing was, therefore, not inconsistent with the reference of authority granted by the Court the substance of Petitioner's request for a preliminary stay of removal remains pending before this Court. Additionally, the ruling by the Magistrate Judge was not clearly erroneous because Respondent demonstrated "excusable neglect" for his late filing as required by Rule 6(b)(2) of the Federal Rules of Civil Procedure. Accordingly, Petitioner's Motion to Strike will be denied and her objection will be overruled. III. Preliminary Stay of Removal. A. Standard.
The law regarding the standard for a stay of removal has changed since this Court last addressed the issue. The standard for a stay of removal now requires consideration of four factors: "`(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'" Nken, 2009 WL 1065976 at *11 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The petitioner bears the burden of persuasion. Nken, 2009 WL 1065976 at *11. "The first two factors . . . are the most critical." Id. It is not enough for a petitioner to show "a mere `possibility' of relief" to satisfy the first factor. Id. Nor is it enough for a petitioner to "simply show[] some `possibility of irreparable injury'" in order to satisfy the second factor. Id. (Quoting Abbassi v.INS, 143 F.3d 513, 514 (9th Cir. 1998)). B. Irreparable Injury.
Removal from the United States is not a categorically irreparable injury. Nken, 2009 WL 1065976 at *12. Petitioner's removal will not render her habeas corpus action moot. -5-
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See Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003) (where a habeas petitioner is deported after the petition was filed, the fact of deportation does not render the habeas petition moot where there are collateral consequences arising from the deportation; an administrative determination that an alien is an aggravated felon gives rise to sufficient collateral consequences). Accordingly, a stay applicant must show something more than the burden of removal alone. Nken, 2009 WL 1065976 at *12. In her original Motion for Stay of Removal (Doc. #3), Petitioner argued that her removal would cause her irreparable harm because she is a single mother who would be forcibly separated from her three United States citizen children. Separation from her children is unquestionably a hardship. But Petitioner has been separated from her children for years during her imprisonment in California and during her immigration detention in Arizona, so the hardship she would suffer, though made worse by distance, is not a substantial change from her current circumstances. Moreover, if Petitioner ultimately succeeds on the merits of her claims, she can be reunited with her children. Nken, 2009 WL 1065976 at *12 (aliens who eventually prevail "can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal"). The Court, therefore, finds that Petitioner has failed to demonstrate that she will suffer irreparable injury if she is removed before her Petition is resolved. C. Likelihood of Success on the Merits.
To obtain a stay of removal, Petitioner must demonstrate a strong showing that she is likely to succeed on the merits. A "mere possibility of relief" is not enough. Nken, 2009 WL 1065976 at *11. In light of the parties' supplemental briefs, the Court finds that Petitioner has failed to demonstrate a strong showing that she is likely to succeed on the merits. Petitioner claims that her former counsel prevented her from filing a timely petition for review in the Ninth Circuit by failing to give her timely notice of the BIA's dismissal of her appeal from the denial of her motion to reopen. Petitioner originally claimed that her former attorney faxed a copy of the BIA's decision to her friend on February 20, 2008 -6-
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more than a week after expiration of the deadline for the filing of a petition for review with the court of appeals. But in his response to Petitioner's complaint to the Sate Bar of Arizona (attached as Exhibit 1 to Petitioner's Supplemental Brief, Doc. #16), Petitioner's former counsel disputes Petitioner's account. According to Petitioner's former counsel, John M. Pope, he was contacted by Petitioner's fiancé, Felix Robertson, Jr., after the time to appeal from the IJ's removal order had run. Mr. Pope was subsequently retained by Petitioner and filed a motion to reopen and an application for cancellation of removal with the IJ on her behalf. After the IJ denied the motion to reopen, Mr. Pope filed a timely appeal to the BIA. According to Mr. Pope, when the BIA dismissed Petitioner's appeal, he immediately contacted Mr. Robertson and also visited Petitioner in the Pinal County jail. Mr. Pope claims that Petitioner asked him to deal with Mr. Robertson because she would rely on him to finalize arrangements with Mr. Pope's firm. Mr. Pope also asserts that he prepared a petition for review and a motion for stay of removal on Petitioner's behalf and was prepared to file the papers with the Ninth Circuit as soon as Petitioner tendered the $450.00 filing fee. According to Mr. Pope, Mr. Robertson repeatedly promised to deliver the filing fee, but failed to do so. On the day before the petition for review was due, Mr. Robertson again promised to bring the filing fee, but later called to say that he did not have the money. In response, Mr. Pope told Mr. Robertson to come and pick up a copy of the petition for review, which could then be filed pro se by Petitioner. According to Mr. Pope, Mr. Robertson never came to get the papers. More than a week later, Petitioner sent a letter to Mr. Pope requesting her file. Mr. Pope claims that Petitioner still owes more than half of the amount due for the original motion to reopen, and that Petitioner was charged only the $110.00 filing fee for the appeal to the BIA and would have been charged only the $450.00 filing fee for the petition for review to the Ninth Circuit. After Mr. Pope submitted his explanation to the State Bar of Arizona, Petitioner's bar complaint was closed. (Doc. #16, Ex. 2.) Petitioner does not dispute Mr. Pope's explanation of the events surrounding her untimely petition for review to the Ninth Circuit. Instead, she -7-
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argues that Mr. Pope was obliged to not only visit her in jail, but also to deliver a copy of the BIA's decision. But she does not explain how delivery of the BIA's decision would have made any difference in her case. In light of Petitioner's supplemental briefs and exhibits, the Court finds that Petitioner has failed to demonstrate that she is likely to succeed on the merits of her claim that her attorney provided ineffective assistance by failing to give her timely notice of the BIA's decision. IV. Conclusion. Because Petitioner has failed to demonstrate that she will suffer an irreparable injury if she is deported and that she is likely to succeed on the merits, she is not entitled to a stay of removal and the Court need not assess the harm to the opposing party or weigh the public interest. Cf. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987) (if the applicant shows no chance of success on the merits, the injunction should not issue). Accordingly, the preliminary stay of removal previously entered in this case will be vacated. IT IS ORDERED that Petitioner's Motion to Strike (Doc. #23) is denied and her Objection (Doc. #21) is overruled. IT IS FURTHER ORDERED that the Stay of Removal (Doc. #14) entered on July 8, 2008 is vacated. DATED this 22nd day of May, 2009.
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