Mendez et al v. Napolitano et al

Filing 12

STIPULATION AND ORDER to hold case in abeyance. Motions terminated: 2 MOTION to Stay filed by Maria Del Carmen Gomez, Fernando Moreno Mendez. The Motion to Stay is VACATED as moot. Signed by Judge Thelton E. Henderson on 06/09/10. (rbe, COURT STAFF) (Filed on 6/9/2010)

1 J OSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney 2 J OANN M. SWANSON, CSBN 88143 Chief, Civil Division 3 ILA C. DEISS, NYSBN 3052909 Assistant United States Attorney 4 450 Golden Gate Avenue, Box 36055 San Francisco, California, 94102 5 Telephone: [phone] Fax: [phone] E-mail: [e-mail] 7 J AMES CHANG Certified Student Attorney 8 9 Attorneys for Respondents 10 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) No. C 10-2471 TEH ) ) ) STIPULATION TO HOLD CASE IN ) ABEYANCE; AND [PROPOSED] ORDER ) ) ) ) ) ) ) ) ) )

13 FERNANDO MORENO MENDEZ and MARIA DEL CARMEN MORENO GOMEZ, 14 P et it i oners , 15 v. 16 J ANET NAPOLITANO, Secretary, 17 Department of Homeland Security; TIMOTHY AIKEN, Field Office Director, 18 Immigration and Customs Enforcement; and ERIC HOLDER, JR., Attorney General 19 of the United States, 20 21 R es p o n d en t s .

Petitioners, by and through their attorney of record, and Respondents, by and through their 22 attorneys of record, hereby stipulate, subject to approval of the Court, to vacate the June 21, 2010 23 hearing on the motion for a stay of removal and to hold this case in abeyance for sixty days in light 24 25 26 Habeas petitions filed in Hernandez Perales v. Napolitano, et al., C 09-6028, before the Honorable Susan Illston and Garcia v. Chertoff, et al, C 08-5729, before the Honorable Jeremy 27 Fogel, are currently held in abeyance for the same reasons. 28 STIPULATION TO HOLD CASE IN ABEYANCE C 10-2471 TEH
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of the following:1

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(1) Petitioners filed a motion for a temporary restraining order, a motion for a stay of removal

2 and this habeas petition on June 4, 2010, alleging that they had received ineffective assistance of 3 counsel from three of their former attorneys after the issuance of final administrative orders by the 4 Board of Immigration Appeals (BIA). 5 (2) Respondents are prepared to file a motion to dismiss the habeas petition because Petitioners

6 have not exhausted their administrative remedies. 7 (3) In Pal Singh v. Napolitano, Appeal No. 07-16988, the parties expect the United States

8 Court of Appeals for the Ninth Circuit to resolve the issues of whether the BIA has jurisdiction 9 over and whether a district court may properly require exhaustion of administrative remedies, if 10 any, in cases where, as here, the alleged ineffective assistance of counsel occurred after the entry 11 of the alien's final removal order and where, as here, the petitioners seek only re-issuance of the 12 BIA's order or orders under the holding in Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007). 13 (4) The Ninth Circuit held oral argument in Pal Singh on January 13, 2009, but has not yet

14 issued an opinion. On August 11, 2009, the Ninth Circuit issued the following order: 15 16 17 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.

18 Pal Singh v. Napolitano, 577 F.3d 988 (9th Cir. 2009) (Order). 19 (5) On April 30, 2010, the BIA advised the Ninth Circuit that, inter alia, it might have had

20 jurisdiction to hear the applicant's ineffective assistance of counsel claim if it had been advanced 21 in a motion to reopen. See Pal Singh, No. 07-16988, dkt entry 43. 22 (6) The parties believe it would be prudent to await the Ninth Circuit's decision in Pal Singh

23 before filing any further briefing in the above-entitled matter and, accordingly, ask this Court to 24 vacate the June 21, 2010 hearing date of the motion for a stay and to hold this case in abeyance for 25 a period of sixty days. 26 /// 27 /// 28 STIPULATION TO HOLD CASE IN ABEYANCE C 10-2471 TEH 2

1 Date: June 8, 2010 2 3 4 5 6 7 Date: June 8, 2010 8 9 10

Respectfully submitted, J OSEPH P. RUSSONIELLO United States Attorney / s/ ILA C. DEISS Assistant United States Attorney Attorneys for Respondents /s/ J AMES TODD BENNETT Attorney for Petitioner

[PROPOSED] ORDER 11 Pursuant to stipulation, IT IS SO ORDERED that: 12 (1) The June 21, 2010 hearing on the motion to stay removal is vacated; 13 (2) This case will be held in abeyance of period of sixty days; 14 15 16 17 18 (3) Respondents agree not to remove Petitioners until after the conclusion of these habeas proceedings; (4) If and when the United States Court of Appeals for the Ninth Circuit issues a decision in Pal Singh v. Napolitano, Appeal No. 07-16988, the parties shall promptly notify the C ourt;

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(5) The parties shall submit a status report to this Court on July 9, 2010. IT IS FURTHER ORDERED that the motion to stay is vacated as moot. Pursuant to the above, 19 Respondents shall not remove Petitioners while these habeas proceedings are pending. 20 DISTRIC 06/09 Dated: ______________, 2010 _________T____________T______ _ ES _ C 21 THELTOA E. HENDERSON, JUDGE N T UNITED STATES DISTRICT COURT 22

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