Perales v. Napolitano et al

Filing 17

ORDER staying case for 6 months. Signed by Judge Illston on 1/20/10. (tf, COURT STAFF) (Filed on 1/21/2010)

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1 J OSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney 2 J OANN M. SWANSON, CSBN 88143 Chief, Civil Division 3 EDWARD A. OLSEN, CSBN 214150 Assistant United States Attorney 4 1301 Clay Street, Suite 340S Oakland, California 94612 5 Telephone: [phone] FAX: [phone] Attorneys for Respondents 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) No. C 09-6028 SI ) ) ) STIPULATION TO HOLD CASE IN ) ABEYANCE; AND [PROPOSED] ORDER ) ) ) ) ) ) ) ) )

11 AMALIA HERNANDEZ PERALES, 12 13 v. Petitioner,

14 J ANET NAPOLITANO, Secretary, Department of Homeland Security; 15 TIMOTHY AIKEN, Field Office Director, Immigration and Customs Enforcement; 16 and ERIC HOLDER, JR., Attorney General of the United States, 17 R es po n d en t s. 18 19

Petitioner, by and through her attorney of record, and Respondents, by and through their

20 attorneys of record, hereby stipulate, subject to approval of the Court, to hold this case in abeyance 21 for six months in light of the following: 22 (1) The petitioner filed a habeas petition on December 24, 2009, alleging that she received

23 ineffective assistance of counsel from two of her former attorneys following the issuance of two 24 orders of the Board of Immigration Appeals (BIA). 25 (2) A primary issue in this case is whether this Court should require the petitioner to exhaust

26 her administrative remedies by presenting her ineffective assistance of counsel claims to the BIA 27 via the filing a motion to reopen. 28 (3) In Rajinder Singh v. Napolitano, Appeal No. 07-16988, the parties expect the United STIPULATION TO HOLD CASE IN ABEYANCE C09-6028 SI

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1 States Court of Appeals for the Ninth Circuit to resolve the issue of whether a district court may 2 properly require exhaustion of administrative remedies in cases where, as here, the alleged 3 ineffective assistance of counsel occurred after the entry of the alien's final removal order and 4 where, as here, the petitioner seeks only re-issuance of the BIA's order or orders. 5 (4) The Ninth Circuit held oral argument in Rajinder Singh on January 13, 2009, but has not

6 yet issued an opinion. On August 11, 2009, the Ninth Circuit issued the following order on 7 August 11, 2009: 8 9 10 The case is remanded to the Board of Immigration Appeals for the limited purpose of ruling upon whether the Board had jurisdiction to hear Singh's ineffective assistance of counsel claims and what effect, if any, the Attorney General's recent opinion in In re Compean, 25 I & N Dec. 1, 3 (A.G. 2009), has on this case. The Board shall advise the court of any action or decision.

11 Singh v. Napolitano, 577 F.3d 988 (9th Cir. 2009) (Order). 12 (5) The BIA has asked the parties in the Rajinder Singh case to file briefs on the issue that has

13 been remanded to it by the Ninth Circuit and those briefs are due on January 27, 2010. 14 (6) The parties believe it would be prudent to await the BIA's response to the Ninth Circuit's

15 Order and the Ninth Circuit's decision in Rajinder Singh before filing any further briefing in the 16 above-entitled matter and, accordingly, ask this Court to hold this case in abeyance for a period of 17 six months. 18 19 Date: January 19, 2010 20 21 22 23 24 25 Date: January 19, 2010 26 27 28 STIPULATION TO HOLD CASE IN ABEYANCE C09-6028 SI 2 Respectfully submitted, J OSEPH P. RUSSONIELLO United States Attorney /s/ EDWARD A. OLSEN Assistant United States Attorney Attorneys for Respondents /s/ J AMES TODD BENNETT Attorney for Petitioner

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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 Dated: ______________, 2010

[PROPOSED] ORDER Pursuant to stipulation, IT IS SO ORDERED that: (1) This case will be held in abeyance of period of six months. (2) If and when the United States Court of Appeals for the Ninth Circuit issues a decision in Rajinder Singh v. Napolitano, Appeal No. 07-16988, the parties shall promptly notify the C o ur t; (3) The parties shall submit a status report on June 18, 2010.

_____________________________ SUSAN ILLSTON United States District Judge

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