Ma v. Holder et al

Filing 4

ORDER GRANTING REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE. Respondent's shall file answer or motion within 20 days of the date this order is filed. Signed by Judge Edward J. Davila on 2/21/2012. (ejdlc1, COURT STAFF) (Filed on 2/21/2012) (Additional attachment(s) added on 2/21/2012: # 1 Certificate of Service) (ecg, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION CASE NO. 5:12-cv-00536 EJD XIAOYUAN MA, 11 ORDER GRANTING PETITIONER’S REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE Plaintiff(s), For the Northern District of California United States District Court 10 12 13 v. ERIC HOLDER, et. al., 14 [Docket Item No. 1] Defendant(s). 15 16 / In this immigration proceeding, Petitioner Xiaoyuan Ma (“Petitioner”) seeks a writ of habeas 17 corpus under 28 U.S.C. § 2241 restraining officials at Immigration and Customs Enforcement 18 (“ICE”) from deporting her pending a ruling on her motion to reopen deportation proceedings. See 19 Petition, Docket Item No. 1. According to the instant pleading, Petitioner claims execution of the 20 deportation order would violate (1) INA § 240(b)(4)(B), 8 U.S.C. § 1229 a(b)(4)(B) (requiring that 21 an alien in removal proceedings be given a reasonable opportunity to present her case); (2) 8 C.F.R. 22 § 1240.1(c); and (3) procedural due process under the Fifth Amendment of the United States. 23 24 Federal jurisdiction arises under 28 U.S.C. § 1331. For the reasons explained below, the court finds it appropriate to issue an Order to Show Cause pursuant to 28 U.S.C. § 2243. 25 26 27 28 1 CASE NO. 5:12-cv-00536 EJD ORDER GRANTING PETITIONER’S REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE 1 2 I. BACKGROUND Petitioner is a native and citizen of the People’s Republic of China. See id., at ¶ 1.1 Since 3 November, 2003, Petitioner has resided with her current husband and five children in Daly City, 4 California. See id. 5 Petitioner was originally admitted to the United States on February 10, 1995, as a conditional divorce and Petitioner’s conditional residency was terminated. See id. She remarried in September, 8 1997, and again obtained conditional residency status. See id., at ¶ 15. However, Citizenship and 9 Immigration Services (“CIS”) terminated her status for a second time after Petitioner failed to 10 appear for an immigration interview. See id., at ¶ 17. She and her second husband thereafter 11 For the Northern District of California permanent resident based on a prior marriage. See id., at ¶ 14. That marriage eventually ended in 7 United States District Court 6 divorced on September 23, 2003. See id. 12 Petitioner married her current husband on November 14, 2003. See id., at ¶ 18. She applied 13 for a adjustment of her immigration status based on her marriage on December 23, 2003, but her 14 application was denied by CIS on November 7, 2005, due to a finding of marriage fraud. See id. 15 Petitioner was then summoned to appear by the Department of Homeland Security on December 29, 16 2005, and appeared before the San Francisco Immigration Court with counsel, Justin Wang. See id., 17 at ¶ 19. During those proceedings, Petitioner conceded removability but requested asylum and relief 18 under the Convention Against Torture. See id. Her requests were denied after an evidentiary 19 hearing on August 30, 2006, and the Board of Immigration Appeals (“BIA”) dismissed her 20 administrative appeal on January 9, 2008. See id., at ¶¶ 21, 22. A petition for review was denied by 21 the Ninth Circuit Court of Appeals on November 29, 2011. See id., at ¶ 23. 22 On August 26, 2011, Petitioner consulted with her present counsel who filed a motion to 23 reopen removal proceedings with the BIA due to ineffective assistance of counsel. See id., at ¶¶ 24, 24 25. Petitioner argues that Wang prevented her from applying for cancellation of removal based on 25 “exceptional and extremely unusual hardship” to her children. See id., at ¶ 25. That motion is 26 27 28 1 The court provides a selection of the allegations contained in the Petition solely for context without determination as to the truth or validity of any of Petitioner’s allegations. 2 CASE NO. 5:12-cv-00536 EJD ORDER GRANTING PETITIONER’S REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE 1 currently pending before the BIA and deportation proceedings have not been stayed pending its 2 decision. See id., at ¶ 26. 3 II. DISCUSSION 4 The district court may consider a petition for writ of habeas corpus if the petitioner “is in 5 custody under or by color of the authority of the United States.” 28 U.S.C. § 2241. In addition, 6 district courts may review administrative denials of stay requests during the pendency of motions of 7 reopen immigration proceedings. Blancada v. Turnage, 891 F.2d 688, 689 (9th Cir. 1989). When 8 presented with a petition under § 2241, the district court shall “award the writ or issue an order 9 directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 11 For the Northern District of California United States District Court 10 Here, Petitioner claims she is in actual “custody” of the United States because she subject to 12 a final order of removal, and further claims she is in constructive custody because she is required to 13 report to the ICE field office in San Francisco every month. In addition, Petitioner’s currently- 14 pending motion to stay is based on ineffective assistance of counsel, an issue which has not yet been 15 considered by the BIA. Liberally construed, Petitioner’s claim appears colorable on its face under § 16 2241, and therefore merits an answer from Respondent. 17 III. ORDER 18 Based on the foregoing, the court orders as follows: 19 1. Petitioner’s request for a stay of deportation proceedings is GRANTED. This stay 20 shall remain in effect until such time as the court dismisses or rules on the merits of the Petition and 21 issues judgment. 22 2. The Clerk shall serve by mail a copy of this Order, the Petition and all attachments 23 thereto, upon the Respondents and the Respondents’ attorney, the United States Attorney for the 24 Northern District of California. 25 3. The court also directs Respondents to show cause why the requested writ should not 26 be granted. Considering what is potentially an extensive administrative record, the court finds good 27 cause to extend the time for Respondents to respond to this show-cause order. Therefore, 28 3 CASE NO. 5:12-cv-00536 EJD ORDER GRANTING PETITIONER’S REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE 1 Respondents shall file with the court and serve upon Petitioner, within twenty (20) days of the date 2 this order is filed, an answer conforming to Rule 5 of the Rules Governing Section 2254 cases, 3 showing cause why a writ of habeas corpus should not be granted. Respondent shall also file and 4 serve upon Petitioner a copy of all portions of the record of deportations proceedings that have been 5 transcribed previously and that are relevant to a determination of the issues presented by the 6 Petition. The court likewise finds good cause to extent the time for decision on this matter in order 7 to allow Petitioner time to respond to the answer. If Petitioner wishes to respond, she shall do so by 8 filing and serving a traverse within fifteen (15) days of the date the answer is filed. The court will 9 determine whether an evidentiary hearing is necessary based on its review of the pleadings. 4. In lieu of an answer, Respondent may file a motion to dismiss on procedural grounds 11 For the Northern District of California United States District Court 10 as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases 12 within twenty (20) days of the date this Order is filed. If Respondent files such a motion, Petitioner 13 shall file and serve an opposition or statement of non-opposition within fifteen (15) days of the date 14 the motion is filed, and Respondent may file and serve a reply within ten (10) days of the date the 15 opposition is filed. The court will decide the motion on the papers; no hearing will be set. 16 IT IS SO ORDERED. 17 18 Dated: February 21, 2012 EDWARD J. DAVILA United States District Judge 19 20 21 22 23 24 25 26 27 28 4 CASE NO. 5:12-cv-00536 EJD ORDER GRANTING PETITIONER’S REQUEST FOR STAY OF DEPORTATION PROCEEDINGS; ORDER TO SHOW CAUSE

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