Balicudiong-Asican v. Kane

Filing 3

ORDER. The Clerk must modify the docket to reflect that Katrina S Kane, District Director of Immigration and Customs Enforcement is the Respondent in this action; the Clerk must serve a copy of the Summons, Petition 1 and this Order upon the US At torney for the District of Arizona by certified mail and also must send by certified mail a copy of the Summons, Petition 1 and this Order to the US Attorney General and to Respondent; this matter is referred to Magistrate Judge Michelle H Burns for further proceedings and a report and recommendation. Signed by Judge David G Campbell on 2/4/09. (REW, )

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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 TERMPSREF JKM WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Joselito Balicudiong Asican, Petitioner, vs. Katrina Kane,* District Director, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-0018-PHX-DGC (MHB) ORDER Petitioner Joselito Balicudiong Asican (A42-053-881), who is confined in the Eloy Detention Center in Eloy, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. The filing fee has been paid. The Court will require Respondent to answer the Petition. I. Petition Petitioner alleges that on February 22, 2008, an Immigration Judge (IJ) entered an order for his removal from the United States. On May 16, 2008, the Board of Immigration (BIA) Appeals affirmed the IJ's decision. Petitioner's petition for review from the BIA's decision is currently pending before the United States Court of Appeals for the Ninth Circuit. * Petitioner has named "District Director Bureau of Immigration and Customs Enforcement" as the only Respondent. Because Katrina S. Kane is the Arizona Field Office Director of Immigration and Customs Enforcement, the Clerk of Court will be directed to list her as the Respondent in this action. 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 TERMPSREF See Asican v. Mukasey, No. 08-72390 (9th Cir. pet. for review filed Jun. 5, 2008). On October 1, 2008, the Ninth Circuit granted Petitioner's motion to stay his removal. Id. Petitioner argues that his continued detention while his appeal is pending is unconstitutional. See Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 944 (9th Cir. 2008) ("prolonged detention must be accompanied by appropriate procedural safeguards, including a hearing to establish whether releasing the alien would pose a danger to the community or a flight risk"). An answer to the Petition will be required. II. Warnings A. Address Changes Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. Copies Petitioner must serve Respondent, or counsel if an appearance has been entered, a copy of every document that he files. FED. R. CIV. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. FED. R. CIV. P. 5(d). Petitioner also must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Petitioner. C. Possible dismissal If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court). IT IS ORDERED: (1) The Clerk of Court must modify the docket to reflect that Katrina S. Kane, District Director of Immigration and Customs Enforcement is the Respondent in this action. -2- 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 TERMPSREF (2) The Clerk of Court must serve a copy of the Summons, Petition and this Order upon the United States Attorney for the District of Arizona by certified mail addressed to the civil process clerk at the office of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court also must send by certified mail a copy of the Summons, Petition and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondent pursuant to Rule 4(i)(2). (3) Respondent must answer the Petition within 20 days of the date of service. Respondent must not file a dispositive motion in place of an answer without first showing cause as to why an answer is inadequate. Petitioner may file a reply within 20 days from the date of service of the answer. (4) The matter is referred to Magistrate Judge Michelle H. Burns pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. DATED this 4th day of February, 2009. -3-

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