Rodriguez-Vega v. Holder et al

Filing 14

CORRECTED ORDER re 13 Order on Motion for Leave to Proceed in forma pauperis, Order on Motion to Appoint Counsel, Order on Motion for Order to Show Cause. Signed by Judge Edward M. Chen on 2/4/13. (emclc2, COURT STAFF) (Filed on 2/4/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ELIZABETH RODRIGUEZ-VEGA, 9 Petitioner, For the Northern District of California United States District Court 10 11 12 13 14 15 16 No. C-13-0097 EMC v. ERIC HOLDER, in his official capacity as Attorney General; JANET NAPOLITANO, in her official capacity as Secretary of the Department of Homeland Security; JOHN MORTON, in his official capacity as the Director of Immigration and Customs Enforcement; TIMOTHY S. AITKEN, in his official capacity as Regional Director of removals for Immigration and Customs Enforcement; LT VANDERLIN, in his official capacity as Director of Contra Costa West County Detention Center, CORRECTED ORDER GRANTING IN FORMA PAUPERIS STATUS, GRANTING MOTION FOR ORDER TO SHOW CAUSE, AND DENYING MOTION TO APPOINT COUNSEL (Docket Nos. 4, 5, 7) Correction in green highlight 17 18 Respondents. ___________________________________/ 19 20 Petitioner Elizabeth Rodriguez-Vega is currently being held in Immigrations and Customs 21 Enforcement (“ICE”) detention in the Contra Costa West County Detention Center. She has been 22 held in custody continuously since June of 2012. She brings a petition for writ of habeas corpus 23 alleging violations of her due process rights. She has filed a motion for leave to proceed in forma 24 pauperis, Docket No. 4, a motion to appoint counsel, Docket No. 5, and a motion for order to show 25 cause, Docket No. 7. 26 // 27 // 28 1 I. 2 BACKGROUND The petition provides the following information: Ms. Rodriguez-Vega has been a legal 3 permanent resident of the United States since 2003. She moved to the country as a child with her 4 parents; her father later became a naturalized citizen. In April 2012, she was arrested and charged 5 with violating 8 U.S.C. § 1324 for attempted transportation of illegal aliens. She eventually pled 6 guilty to one misdemeanor count of attempted transport of an illegal alien. Prior to this incident, she 7 had no criminal history. 8 On June 27, 2012, the government initiated removal proceedings against Ms. Rodriguez- within the meaning of 8 U.S.C. § 1101(a)(43)(N). On August 3, 2012, the Immigration Judge 11 For the Northern District of California Vega, alleging that she was removable because she had been convicted of an aggravated felony 10 United States District Court 9 denied her request for a bond, finding that she was subject to mandatory detention under 8 U.S.C. § 12 236(c). She subsequently denied the allegations in the government’s notice to appear, and contested 13 removability. She also filed a petition in the U.S. District Court for the Southern District of 14 California to vacate her § 1324 conviction pursuant to 28 U.S.C. § 2255. 15 Ms. Rodriguez-Vega filed a motion for a bond, and a subsequent motion to terminate 16 proceedings, both of which were denied. The Immigration Judge ordered Ms. Rodriguez-Vega 17 removed from the United States. She appealed, filing her opening brief with the Board of 18 Immigration Appeals on December 17, 2012. 19 20 21 II. A. DISCUSSION In Forma Pauperis Application 22 When presented with an application to proceed in forma pauperis, a court must first 23 determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See 24 Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984). Section 1915(a) does not require an 25 applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 26 853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 27 339(1948)). 28 2 1 In her financial affidavit, Ms. Rodriguez-Vega states that she is not presently employed and 2 that he has not been employed since February 2012. She lists no source of income, and does not 3 have a bank account or own any cash. She does not own a house or a car. She lists monthly 4 expenses of $1,100. Given these circumstances, the Court GRANTS Ms. Rodriguez-Vega’s 5 application to proceed in forma pauperis. 6 7 B. Motion to Appoint Counsel 8 Ms. Rodriguez-Vega brings a motion to appoint counsel, seeking appointment of Attorney 9 Erick L. Guzman, who has prepared all of Ms. Rodriguez-Vega’s filings in this motion to date and submitted them indicating that he is her attorney. 11 For the Northern District of California United States District Court 10 A district court may appoint counsel to represent a habeas petitioner whenever “the court 12 determines that the interests of justice so require and such person is financially unable to obtain 13 representation.” 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the 14 discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986). 15 Appointment is mandatory only when the circumstances of a particular case indicate that appointed 16 counsel is necessary to prevent due process violations. See id. 17 In this case, as Ms. Rodriguez-Vega is already represented by counsel, this Court DENIES 18 her motion to appoint counsel without prejudice. If at some point in the future she finds herself 19 without counsel, she may contact the Legal Help Center, 450 Golden Gate Avenue, 15th Floor, 20 Room 2796, Telephone No. (415) 782–9000 extension 8657, for free legal advice regarding her 21 claims. Additionally, this Court directs her attention to the Handbook for Pro Se Litigants, which is 22 available along with further information for the parties on the Court's website located at 23 24 25 26 C. Order to Show Cause While the District Court does not have jurisdiction over petitions seeking review of an order 27 of removal issued by an Immigration Judge, see 8 U.S.C. § 1252(a)(5) (providing that such 28 jurisdiction lies with the court of appeals), it appears that Petitioner here is challenging not the 3 1 Immigration Judge’s order finding her removable, but the Judge’s denial of Petitioner’s request for a 2 bond while she appeals the removal order. The Ninth Circuit has recognized that the District Courts 3 can properly hear a habeas petition under 28 U.S.C. § 2241 under such circumstances. See 4 Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (finding that the jurisdiction stripping 5 provision at § 1252 “does not apply to federal habeas corpus petitions that do not involve final 6 orders of removal”); Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008) (reviewing § 7 2241 habeas petition that challenged bond set for petitioner who was appealing final order of 8 removability). 9 Petitioner alleges that her due process rights have been violated by the Immigration Judge’s denial of bond. She cites various cases limiting the government’s ability to keep people in civil 11 For the Northern District of California United States District Court 10 immigration detention while their orders of removal are being challenged. Having reviewed the 12 petition, this Court has determined that it warrants a response. 13 14 15 16 17 18 III. CONCLUSION For the foregoing reasons, Ms. Rodriguez-Vega’s petition to proceed in forma pauperis is GRANTED, and her motion for appointment of counsel is DENIED without prejudice. Additionally, as this Court finds that the petition for a writ of habeas corpus warrants a response. Accordingly, IT IS HEREBY ORDERED as follows: 19 20 1. Respondent must file with the Court and serve upon Petitioner, on or before 21 April 1, 2013, a motion to dismiss the petition or a notice that Respondent is of the 22 opinion that a motion to dismiss is unwarranted. 23 2. 24 If Petitioner wishes to oppose the motion to dismiss, he must do so by filing an opposition with the Court and serving it upon Respondent on or before May 1, 2013. 25 3. Respondent may file and serve a reply on or before May 15, 2013. 26 4. The motion will be deemed submitted as of the date the reply brief is due. Absent 27 further order of the Court, no hearing will be held on the motion. If Respondent 28 notifies the Court that a motion to dismiss is unwarranted or the motion to dismiss is 4 1 decided against Respondent, the Court will then determine whether to require an 2 answer to the petition. 3 4 This Order disposes of Docket Nos. 4, 5 and 7. 5 IT IS SO ORDERED. 6 7 Dated: January 31, 2013 8 9 _________________________ EDWARD M. CHEN United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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