Mendez et al v. Napolitano et al

Filing 14

ORDER holding this case in abeyance until 09/09/10. Signed by Judge Thelton E. Henderson on 07/12/10. (rbe, COURT STAFF) (Filed on 7/13/2010)

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division ILA C. DEISS (NYSBN 3052909228971) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: [phone] FAX: [phone] [e-mail] Attorneys for Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 13 14 15 16 17 18 Respondents. 19 20 21 22 23 24 25 26 27 28 Petitioners, by and through their attorney of record, and Respondents, by and through their attorneys of record, hereby submit this joint status report. (1) Petitioners filed a motion for a temporary restraining order, a motion for a stay of removal and this habeas petition on June 4, 2010, alleging that they had received ineffective assistance of counsel from three of their former attorneys after the issuance of final administrative orders by the Board of Immigration Appeals (BIA). (2) One issue in this case is whether or not this Court can and should require the petitioners to exhaust alleged administrative remedies in habeas proceedings, if any, by presenting their ineffective assistance of counsel claims to the BIA by way of an administrative motion to reopen.
J O I N T STATUS REPORT N o . C 10-2471 TEH

FERNANDO MORENO MENDEZ and MARIA DEL CARMEN MORENO GOMEZ,

) ) ) ) Petitioners, ) ) v. ) ) JANET NAPOLITANO, Secretary of ) Homeland Security; TIMOTHY AIKEN, ) Field Office Director, Immigration and ) Customs Enforcement; and ERIC HOLDER, ) JR., Attorney General of the United States, )

No. C 10-2471 TEH

JOINT STATUS REPORT

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(3) In Rajinder Pal Singh v. Napolitano, Appeal No. 07-16988, the parties expect the United States Court of Appeals for the Ninth Circuit (hereinafter Court of Appeals) to resolve the issues of whether the BIA has jurisdiction over and whether a district court may require exhaustion of administrative remedies, if any, in cases where, as here, the alleged ineffective assistance of counsel occurred after the entry of the alien's final removal order and where, as here, the petitioners seek only re-issuance of the BIA's order or orders under Amarjeet Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007). (4) The Court of Appeals held oral argument in Rajinder Pal Singh on January 13, 2009, but has not yet issued an opinion. (5) On August 11, 2009, the Court of Appeals issued the following order: 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. Rajinder Singh v. Napolitano, 577 F.3d 988 (9th Cir. 2009) (Order).

15 (6) When the case was remanded to the BIA, the BIA asked the parties to file briefs on the 16 issues that had been remanded to it by the Court of Appeals and the parties submitted briefs as 17 directed by the BIA. 18 (7) On April 30, 2010, the BIA issued a decision in Matter of Rajinder Pal Singh, Case No. 19 A071 789 054, which responded to the questions that were posed to it by the Court of Appeals. A 20 copy of the BIA's decision is attached to this joint status report. 21 (8) The BIA and the parties have provided the Court of Appeals with a copy of the BIA's 22 decision for its consideration. 23 (9) Rajinder Pal Singh filed a motion with the BIA on June 1, 2010, asking for 24 reconsideration of its April 30, 2010 decision and has given notice to the Court of Appeals of the 25 pending motion to reopen. 26 (10) The parties continue to believe it would be prudent to await the Court of Appeals' 27 decision in Rajinder Pal Singh before filing any further briefing in the above-entitled matter and, 28
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accordingly, ask this Court to hold this case in abeyance for an additional sixty days, until September 9, 2010. In the event the Court of Appeals issues a decision in the interim, the parties will promptly notify the District Court and submit a proposed briefing schedule on the habeas petition. (11) Respondents agree not to remove Petitioners until after the conclusion of these habeas proceedings in compliance with the District Court's order of June 9, 2010.

Date: July 9, 2010

Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Respondents

Date: July 9, 2010

/s/ JAMES TODD BENNETT Attorney for Petitioner

The parties shall file a joint status statement on or before September 9, 2010.

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