Mendez et al v. Napolitano et al

Filing 21

ORDER by Judge Thelton E. Henderson denying 16 Motion to Dismiss. The parties shall file a stipulated briefing schedule within 14 days of issuance of the mandate in Singh v. Napolitano. (tehlc3, COURT STAFF) (Filed on 12/1/2010)

Mendez et al v. Napolitano et al

Doc. 21

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

FERNANDO MORENO MENDEZ and MARIA DEL CARMEN MORENO GOMEZ, Petitioners,

NO. C10-2471 TEH ORDER DENYING MOTION TO DISMISS

JANET NAPOLITANO, et al., Respondents.

United States District Court

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For the Northern District of California

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This matter comes before the Court on Respondents' motion to dismiss, currently

13 scheduled for hearing on December 6, 2010. After carefully reviewing the parties' written 14 arguments, the Court finds oral argument to be unnecessary, and the December 6, 2010 15 hearing is hereby VACATED. Respondents' motion is DENIED for the reasons discussed 16 below. 17 The Court need not examine the long procedural history presented by this case to

18 resolve the pending motion. It is undisputed that Petitioners are under a final order of 19 removal, and that their habeas petition raises claims of ineffective assistance by counsel after 20 the final removal order was issued. 21 Respondents acknowledge that "a district court has jurisdiction to consider a petition

22 for a writ of habeas corpus brought by a person in custody pursuant to an order of removal, 23 where the petition is not a direct challenge to an order of removal," Mot. at 4 (citing Singh v. 24 Gonzales, 499 F.3d 969 (9th Cir. 2007)), but argue that the Court must dismiss this petition 25 because Petitioners "ultimately do seek to challenge the removal order that has already been 26 reviewed by the Ninth Circuit Court of Appeals." Reply at 4. Petitioners' ultimate goal, 27 however, is not the dispositive issue. In Singh, as in this case, the petitioner claimed 28 ineffective assistance by counsel after issuance of a final removal order. The Ninth Circuit

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1 held that Singh's claim "cannot be construed as seeking judicial review of his final order of 2 removal, notwithstanding his ultimate goal or desire to overturn that final order of removal." 3 Singh, 499 F.3d at 979. As in Singh, the petition in this case does not seek review of the final 4 removal order; instead, "[a]s an adequate remedy, petitioners request an order of remand 5 directing the [Board of Immigration Appeals] to reissue its original March 6, 2006 decision 6 and order, thereby permitting petitioners to file a timely petition for judicial review as to the 7 underlying removal proceeding order, or exercising voluntary departure." Pet'n ¶ 39. This 8 was the same remedy at issue in Singh: "Singh's only remedy would be the restarting of the 9 thirty-day period for the filing of a petition for review with [the Ninth Circuit]." Singh, 499 10 F.3d at 979. Thus, under Singh, this Court has jurisdiction over this case.

United States District Court

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For the Northern District of California

Respondents also urge the Court to dismiss the petition for failure to exhaust

12 administrative remedies, citing the recently decided Singh v. Napolitano, 619 F.3d 1101 13 (9th Cir. 2010), for support. In that case, Singh, like Petitioners here, "alleged ineffective 14 assistance [that] occurred after a final order of removal has been entered." Id. at 1103. The 15 Ninth Circuit held "that Singh did not exhaust his available administrative remedies because 16 he did not first file a motion to reopen with the Board before bringing his habeas petition in 17 district court." Id. at 1105. However, Respondents do not dispute that the mandate has yet to 18 issue, thus making the decision non-final. United States v. Foumai, 910 F.2d 617, 620 (9th 19 Cir. 1990) ("A court of appeals may modify or revoke its judgment at any time prior to 20 issuance of the mandate, sua sponte or by motion of the parties. Thus, finality of an appellate 21 order hinges on the mandate. . . ."). The Court finds it would be premature to dismiss this 22 petition based on a non-final decision by the Ninth Circuit. 23 Perhaps in recognition of the non-final nature of Singh, Respondents' reply abandoned

24 reliance on that case and instead argued that the Court lacks jurisdiction under Puga v. 25 Chertoff, 488 F.3d 812 (9th Cir. 2007). Puga, however, is distinguishable because the 26 alleged ineffective assistance of counsel in that case "occurred prior to and during the 27 removal proceeding," id. at 815, and not, as in this case, after the final order of removal had 28 issued. 2

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Accordingly, with good cause appearing, Respondents' motion to dismiss is DENIED.

2 Within fourteen days of the issuance of the mandate in Singh v. Napolitano, the parties shall 3 file a stipulated briefing schedule on this petition unless they are able to resolve this case 4 prior to that date without further litigation. 5 6 IT IS SO ORDERED. 7 8 Dated: 12/01/10 9 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

United States District Court

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For the Northern District of California

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