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KHAN v. FASANO

December 20, 2001

KAMAL KHAN, INS NO. A20-258-532, PETITIONER,
V.
ADELE J. FASANO, SAN DIEGO DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Judith N. Keep, United States District Judge

ORDER GRANTING RESPONDENT'S MOTION TO ALTER OR AMEND JUDGEMENT [15]
ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS [1]
ORDER DENYING PETITIONER'S MOTION TO COMPEL [17]

I. Background

A. Facts as of the Court's October 26, 2001 Order

Petitioner, a native of Pakistan, is a former lawful permanent resident who is subject to deportation as a result of a criminal conviction for possession of methamphetamine. He entered INS custody on April 14, 1999. On February 24, 2000, an immigration judge ordered him removed to Belgium, or in the alternative to Pakistan. Petitioner appealed the deportation order, but withdrew the appeal on January 29, 2001, making the order administratively final that same day. The Consulate General of Belgium formally denied Respondent's request for issuance of a travel document to effect the removal of Petitioner on March 14, 2001. On March 2, 2001, the INS requested travel documents from the Consulate General of Pakistan. On May 30, 2001, the Pakistan Consulate indicated to the INS that Petitioner's travel document application had been forwarded to the appropriate ministry in Pakistan and is currently pending approval.

On August 1, 2001, Respondents issued a final administrative decision to continue Petitioner's detention. As of October 25, 2001, Petitioner had been in custody over two and one-half years, and over 260 days since the removal order became final. On October 26, 2001, the Court granted Mr. Khan's petition and ordered him released, subject to reasonable conditions of supervision.*fn1

B. Facts Newly Before the Court

In its motion to alter or amend the Court's order granting Petitioner's habeas corpus petition, the government brings forward new facts which materially alter the Court's analysis. In light of the Supreme Court's decision in Zadvydas v. Davis, 121 S.Ct. 2491 (2001), the INS has established new procedures for evaluating the likelihood of repatriation for those individuals detained past the presumptively reasonable six-month detention period. Pursuant to these new administrative procedures, the INS determined that Petitioner cannot show that repatriation is unlikely in a November 1, 2001 letter to Petitioner. In making its determination, the TINS relied upon a scheduled future meeting (date not provided) between INS officials and the Pakistani Consulate to discuss Petitioner's case, as well as others. Furthermore, in fiscal year 2000 and the first half of fiscal year 2001, the INS successfully repatriated 476 Pakistani nationals. The INS concluded that there were no institutional barriers to the repatriation of Pakistani nationals in genera!, and no known barriers to the repatriation of Mr. Khan in particular.

II. Discussion

A. Legal Standard

Under Federal Rule of Civil Procedure 59(e), 60(b) and Local Rule 7.1(i)(1), the Court may reconsider and relieve a party from a final order. Reconsideration is appropriate "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in the controlling law." School Dist. No. 1, Multnomah County, Oregon v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). A party cannot have relief under this rule merely because he or she is unhappy with the judgment. Wright and Miller, Federal Practice and Procedure, section 2858 at 170. In fact, ...


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