Asaad v. Holder et al

Filing 4

ORDER TO SHOW CAUSE. Show Cause Response due by 6/20/2011. Signed by Judge Lucy H. Koh on 5/31/2011. (lhklc2, COURT STAFF) (Filed on 5/31/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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ALI QASEM SALEH ASAAD,

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Plaintiffs,
v.

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ERIC HOLDER, JANET NAPOLITANO,
TIMOTHY AITKEN,

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Defendants.

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Case No.: 10-CV-05537-LHK

ORDER TO SHOW CAUSE

Petitioner Asaad, a citizen of Yemen, seeks a writ of habeas corpus under 28 U.S.C. § 2241

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restraining Immigration and Customs Enforcement (ICE) from deporting him pending a ruling on

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his motion to reopen deportation proceedings that is currently before the Board of Immigration

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Appeals (BIA). Petitioner moves on the ground that deporting him while his appeal is pending

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would violate (1) INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (requiring that an alien in

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removal proceedings be given a reasonable opportunity to prove his case); (2) 8 C.F.R. § 1240.1(c)

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(same); (3) Procedural Due Process under the Fifth Amendment to the United States Constitution;

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and (4) the Convention Against Torture.

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I.

BACKGROUND
Petitioner alleges as follows. A final order of removal has been issued against Petitioner.

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Pet’n ¶ 4. As a result, Petitioner alleges that he is in constructive custody because he must report to

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the ICE Field Office in Bakersfield, California every month. Id. Petitioner filed an administrative
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Case No.: 10-CV-05537-LHK
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appeal of the initial removal order with the BIA. Pet’n ¶ 21. On March 25, 2005, the BIA

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dismissed the administrative appeal and affirmed the Immigration Judge’s removal order. Id.

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Petitioner then appealed the BIA’s decision to the Ninth Circuit Court of Appeals. Pet’n ¶ 22. On

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April 24, 2007, the Ninth Circuit denied the petition on the ground that substantial evidence

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supported the BIA’s decision. Id. Throughout these proceedings, Petitioner was represented by

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Mr. Singh, an attorney. In June, 2006, Petitioner met with new counsel, Mr. Leichty, who advised

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him that he had a claim for ineffective assistance of counsel based on Mr. Singh’s representation in

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Petitioner’s initial removal proceedings and on appeal at the BIA. On August 30, 2007, Mr.

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Leichty filed a motion to reopen removal proceedings with the BIA on Petitioner’s behalf. Pet’n ¶

United States District Court
For the Northern District of California

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24. On April 8, 2008, the BIA denied Petitioner’s motion to reopen on the basis that it was

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untimely. Pet’n ¶ 28. Petitioner sought review of this decision by the Ninth Circuit, but the Ninth

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Circuit denied the petition for review on the ground that Petitioner failed to establish that he acted

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with due diligence. Pet’n ¶ 30.

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In October, 2010, Petitioner consulted with his current counsel, who filed a second motion

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to reopen with the BIA based on ineffective assistance of counsel. Pet’n ¶ 31. Petitioner’s second

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motion was based on both Mr. Singh and Mr. Leichty’s representation. Id. Petitioner asked the

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BIA to stay his deportation until the BIA acts on the motion to reopen. Pet’n ¶ 33. The BIA has

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not ruled on Petitioner’s request for a stay of deportation. Id. Petitioner argues that even though

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the BIA has not yet acted on his motion for a stay, this Court should issue a stay because “waiting

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for the BIA’s decision as to the stay would prejudice Petitioner because the indefinite timeframe

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for administrative action would cause unreasonable delay.” Pet’n ¶12. Petitioner argues that if he

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is deported before the BIA rules on his motion to reopen, his motion to reopen would be

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automatically withdrawn pursuant to 8 C.F.R. § 1003.2(f).

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II.

DISCUSSION

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A. Standard of Review

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This Court may entertain a petition for a writ of habeas corpus if the petitioner “is in

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custody under or by color of the authority of the United States.” 28 U.S.C. § 2241. The district

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courts have jurisdiction to review denials of stay requests pending motions to reopen immigration

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proceedings. Blancada v. Turnage, 891 F.2d 688, 689 (9th Cir. 1989).
A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B. Petitioner’s Claims

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Petitioner claims that his deportation should be stayed until the BIA has considered his

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motion to reopen the immigration proceedings. As set forth above, Petitioner’s motion to reopen is

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based on additional allegations of ineffective assistance of counsel which have not yet been

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For the Northern District of California

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considered by the BIA. Liberally construed, Petitioner’s claim appears colorable under § 2241 and

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merits an answer from Respondent.

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III.

CONCLUSION
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The Clerk shall serve by mail a copy of this Order, the petition and all attachments

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thereto, upon the Respondents and the Respondent’s attorney, the United States Attorney for the

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Northern District of California.

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2.

The Court finds that in light of the fact that Petitioner has already unsuccessfully

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appealed the deportation order against him twice, there is good cause to extend the time for

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Respondent to respond to the Petition under 28 U.S.C. § 2243. Therefore, Respondent shall file

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with the Court and serve on Petitioner, within twenty (20) days of the date this Order is filed, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer

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and serve on Petitioner a copy of all portions of the record of deportation proceedings that have

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been transcribed previously and that are relevant to a determination of the issues presented by the

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petition. The Court likewise finds that there is good cause to extend the time for a decision on this

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matter in order to allow the Petitioner to respond to the answer. If Petitioner wishes to respond to

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the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within

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fifteen (15) days of the date the answer is filed.

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3.

In lieu of an answer, Respondent may file a motion to dismiss on procedural

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grounds as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within twenty (20) days of the date this Order is filed. If Respondent files such a

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motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of

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non-opposition within fifteen (15) days of the date the motion is filed, and Respondent shall file

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with the Court and serve on Petitioner a reply within ten (10) days of the date the opposition is

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filed. The Court will decide the motion on the papers, and no hearing date will be set.

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IT IS SO ORDERED.

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Dated: May 31, 2011

_________________________________
LUCY H. KOH
United States District Judge

United States District Court
For the Northern District of California

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Case No.: 10-CV-05537-LHK
ORDER TO SHOW CAUSE