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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 ALI QASEM SALEH ASAAD, 12 Plaintiffs, v. 13 14 ERIC HOLDER, JANET NAPOLITANO, TIMOTHY AITKEN, 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) 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 18 restraining Immigration and Customs Enforcement (ICE) from deporting him pending a ruling on 19 his motion to reopen deportation proceedings that is currently before the Board of Immigration 20 Appeals (BIA). Petitioner moves on the ground that deporting him while his appeal is pending 21 would violate (1) INA § 240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B) (requiring that an alien in 22 removal proceedings be given a reasonable opportunity to prove his case); (2) 8 C.F.R. § 1240.1(c) 23 (same); (3) Procedural Due Process under the Fifth Amendment to the United States Constitution; 24 and (4) the Convention Against Torture. 25 26 I. BACKGROUND Petitioner alleges as follows. A final order of removal has been issued against Petitioner. 27 Pet’n ¶ 4. As a result, Petitioner alleges that he is in constructive custody because he must report to 28 the ICE Field Office in Bakersfield, California every month. Id. Petitioner filed an administrative 1 Case No.: 10-CV-05537-LHK ORDER TO SHOW CAUSE 1 appeal of the initial removal order with the BIA. Pet’n ¶ 21. On March 25, 2005, the BIA 2 dismissed the administrative appeal and affirmed the Immigration Judge’s removal order. Id. 3 Petitioner then appealed the BIA’s decision to the Ninth Circuit Court of Appeals. Pet’n ¶ 22. On 4 April 24, 2007, the Ninth Circuit denied the petition on the ground that substantial evidence 5 supported the BIA’s decision. Id. Throughout these proceedings, Petitioner was represented by 6 Mr. Singh, an attorney. In June, 2006, Petitioner met with new counsel, Mr. Leichty, who advised 7 him that he had a claim for ineffective assistance of counsel based on Mr. Singh’s representation in 8 Petitioner’s initial removal proceedings and on appeal at the BIA. On August 30, 2007, Mr. 9 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 10 24. On April 8, 2008, the BIA denied Petitioner’s motion to reopen on the basis that it was 11 untimely. Pet’n ¶ 28. Petitioner sought review of this decision by the Ninth Circuit, but the Ninth 12 Circuit denied the petition for review on the ground that Petitioner failed to establish that he acted 13 with due diligence. Pet’n ¶ 30. 14 In October, 2010, Petitioner consulted with his current counsel, who filed a second motion 15 to reopen with the BIA based on ineffective assistance of counsel. Pet’n ¶ 31. Petitioner’s second 16 motion was based on both Mr. Singh and Mr. Leichty’s representation. Id. Petitioner asked the 17 BIA to stay his deportation until the BIA acts on the motion to reopen. Pet’n ¶ 33. The BIA has 18 not ruled on Petitioner’s request for a stay of deportation. Id. Petitioner argues that even though 19 the BIA has not yet acted on his motion for a stay, this Court should issue a stay because “waiting 20 for the BIA’s decision as to the stay would prejudice Petitioner because the indefinite timeframe 21 for administrative action would cause unreasonable delay.” Pet’n ¶12. Petitioner argues that if he 22 is deported before the BIA rules on his motion to reopen, his motion to reopen would be 23 automatically withdrawn pursuant to 8 C.F.R. § 1003.2(f). 24 II. DISCUSSION 25 A. Standard of Review 26 This Court may entertain a petition for a writ of habeas corpus if the petitioner “is in 27 custody under or by color of the authority of the United States.” 28 U.S.C. § 2241. The district 28 2 Case No.: 10-CV-05537-LHK ORDER TO SHOW CAUSE 1 courts have jurisdiction to review denials of stay requests pending motions to reopen immigration 2 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 3 4 cause why the writ should not be granted, unless it appears from the application that the applicant 5 or person detained is not entitled thereto.” 28 U.S.C. § 2243. 6 B. Petitioner’s Claims 7 Petitioner claims that his deportation should be stayed until the BIA has considered his 8 motion to reopen the immigration proceedings. As set forth above, Petitioner’s motion to reopen is 9 based on additional allegations of ineffective assistance of counsel which have not yet been United States District Court For the Northern District of California 10 considered by the BIA. Liberally construed, Petitioner’s claim appears colorable under § 2241 and 11 merits an answer from Respondent. 12 13 III. CONCLUSION 1. The Clerk shall serve by mail a copy of this Order, the petition and all attachments 14 thereto, upon the Respondents and the Respondent’s attorney, the United States Attorney for the 15 Northern District of California. 16 2. The Court finds that in light of the fact that Petitioner has already unsuccessfully 17 appealed the deportation order against him twice, there is good cause to extend the time for 18 Respondent to respond to the Petition under 28 U.S.C. § 2243. Therefore, Respondent shall file 19 with the Court and serve on Petitioner, within twenty (20) days of the date this Order is filed, an 20 answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing 21 cause why a writ of habeas corpus should not be granted. Respondent shall file with the answer 22 and serve on Petitioner a copy of all portions of the record of deportation proceedings that have 23 been transcribed previously and that are relevant to a determination of the issues presented by the 24 petition. The Court likewise finds that there is good cause to extend the time for a decision on this 25 matter in order to allow the Petitioner to respond to the answer. If Petitioner wishes to respond to 26 the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within 27 fifteen (15) days of the date the answer is filed. 28 3 Case No.: 10-CV-05537-LHK ORDER TO SHOW CAUSE 1 3. In lieu of an answer, Respondent may file a motion to dismiss on procedural 2 grounds as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 3 2254 Cases within twenty (20) days of the date this Order is filed. If Respondent files such a 4 motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of 5 non-opposition within fifteen (15) days of the date the motion is filed, and Respondent shall file 6 with the Court and serve on Petitioner a reply within ten (10) days of the date the opposition is 7 filed. The Court will decide the motion on the papers, and no hearing date will be set. 8 IT IS SO ORDERED. 9 Dated: May 31, 2011 _________________________________ LUCY H. KOH United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No.: 10-CV-05537-LHK ORDER TO SHOW CAUSE

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