Judulang v. Chertoff et al

Filing 4

ORDER. Court grants Petitioner's 2 Motion for Leave to Proceed In Forma Pauperis and grants 3 Motion to Appoint Counsel. Attorney Federal Defenders appointed to represent Joel Judulang. Clerk shall file petition for writ of habeas corpus w/ o prepayment of filing fee. Court orders respondents to show cause why the petition should not be granted. Respondents Michael Chertoff, Alberto Gonzales, Robin F Baker, and Gabriela Pacheco shall file an answer by 9/17/2007. Petitioner may file aTraverse by 10/9/2007. Signed by Judge Irma E. Gonzalez on 8/14/2007. (jah)

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Judulang v. Chertoff et al Doc. 4 Case 3:07-cv-01414-IEG-CAB Document 4 Filed 08/14/2007 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL CHERTOFF, Secretary of the Department of Homeland Security; ALBERTO GONZALES, Attorney General; ROBIN F. BAKER, Director of San Diego Field Office, U.S. Immigration and Customs Enforcement; GABRIELA PACHECO, Office in Charge Respondents. On August 2, 2007, Joel Judulang ("petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241 challenging his detention by Michael Chertoff, Alberto Gonzales, Robin F. Baker, and Gabriela Pacheco (collectively "respondents" or "the government"). (Doc. No. 1.) Simultaneously, petitioner also filed an application to proceed in forma pauperis ("IFP") and a motion for appointment of counsel. (Doc. Nos. 2-3.) According to petitioner, he is a native of the Philippines and lawful permanent resident who entered the respondent's custody on July 7, 2005 at the ICE El Centro Detention Center and has -107cv1414 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JOEL JUDULANG, Petitioner, vs. CASE NO. 07-CV-1414 IEG (CAB) ORDER: 1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; 2) GRANTING MOTION FOR APPOINTMENT OF COUNSEL; and 3) ORDERING RESPONDENTS TO SHOW CAUSE WHY PETITIONER'S REQUEST FOR HABEAS CORPUS RELIEF PURSUANT TO 28 U.S.C. 2241 SHOULD NOT BE GRANTED [Doc. Nos. 1-3] Dockets.Justia.com Case 3:07-cv-01414-IEG-CAB Document 4 Filed 08/14/2007 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 remained in custody since that time. (Petition at 2.) An immigration judge ordered petitioner removed from the United States on September 28, 2005. (Janet Tung Declaration In Support of Motion ("Tung Decla. ISO Motion") at 10.) Petitioner filed a petition for review of the immigration judge's removal order, which is currently pending before the Ninth Circuit Court of Appeals. (Id.) According to plaintiff, his prolonged detention while his immigration petition is being processed is a constitutional violation. (Petition at 2-8.) Plaintiff requests an order releasing him from custody under the supervision conditions set forth 8 U.S.C. 1231(a)(3). (Petition at 9.) A court may authorize the commencement of a suit without prepayment of fees if the petitioner submits an affidavit, including a statement of all his or her assets, showing that he or she is unable to pay the fees. See 28 U.S.C. 1915(a). Petitioner submitted such an affidavit in support of his IFP application. Petitioner submitted such an affidavit in support of his IFP application. In his affidavit, petitioner states that he does not have a source of income, any significant savings or assets, and no funds in his prison account. (Doc. No. 3 at 4.) In light of the fact that petitioner has no real assets or significant monthly income, the Court finds that he meets the indigency requirements of section 1915(a). Accordingly, the Court GRANTS petitioner's request for IFP status. The Clerk of Court shall file the petition for writ of habeas corpus without prepayment of the filing fee. In addition, petitioner moves for appointment of counsel pursuant to 18 U.S.C. 3006A. (Doc. No. 3.) The Federal Defenders of San Diego, Inc., is ready and able to assist petitioner in this matter. (Tung Decla. ISO Motion 2, 3.) Section 3006A(a)(2)(b) provides that when the court determines that "the interests of justice so require," the court may appoint counsel for financially eligible individuals who are seeking relief under 28 U.S.C. 2241. Having carefully considered the arguments raised in petitioner's motion, the court finds that the appointment of counsel is appropriate in this case. The court therefore GRANTS petitioner's motion for appointment of counsel and APPOINTS Federal Defendants of San Diego, Inc. to represent him. Upon receipt of the petition, and finding that the matter is not appropriate for summary disposition, the Court furthermore ORDERS respondents to show cause why the petition should not be granted. Respondents shall have until Monday, September 17, 2007 to file and personally serve an answer to the petition. Petitioner may file a traverse by no later than Tuesday, October 9, 2007. -2- 07cv1414 Case 3:07-cv-01414-IEG-CAB Document 4 Filed 08/14/2007 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Unless the Court orders otherwise, the matter will be taken under submission and decided without oral argument. Local Rule 7.1(d)(1). IT IS SO ORDERED. DATED: August 14, 2007 HON. IRMA E. GONZALEZ, Chief Judge United States District Court Southern District of California -3- 07cv1414

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