The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Petitioner's Motion for an order 1) that the government dismiss its appeal before the BIA; 2) that the Court modify its May 22, 2007 order pursuant to Tijani; and 3) for injunctive relief preventing the government from re-detaining petitioner without the benefit of a hearing. (Doc. # 24.)
Petitioner Paul Guevarra Macalma is a native and citizen of the Philippines. Macalma was born in Manila on April 24, 1981. Macalma's father Benjamin Macalma left the Philippines and was admitted to the United States as a lawful permanent resident on December 31, 1981. Benjamin Macalma became a United States citizen by naturalization on June 18, 1993.
On November 16, 1996, Macalma entered the United States as a lawful permanent resident.
On November 20, 2003, the Department of Homeland Security took custody of Macalma and placed him in removal proceedings. Macalma was charged with deportability under Section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed. In the hearing before the Immigration Judge, Macalma claimed United States citizenship by acquisition through his naturalized father.
On March 10, 2004, the Immigration Judge found that Macalma was not a citizen and ordered him removed to the Philippines. Macalma filed an appeal to the Board of Immigration Appeals.
On October 22, 2004, the Board of Immigration Appeals upheld the decision of the Immigration Judge that Macalma had not derived citizenship through his father under former section 321 of the Immigration and Naturalization Act, 8 U.S.C. § 1432(a).
On November 16, 2004, Macalma filed a Petition for Review in the Court of Appeals for the Ninth Circuit along with a motion to stay deportation pending resolution of the appeal. Macalma v. Gonzales, No. 04-75821.
On June 14, 2005, Respondents filed a statement of non-opposition to the motion for stay of removal.
On August 5, 2005, the Court of Appeals filed an order which appears in the docket in part as follows: "respondent has filed a statement of non-opp to mtn for stay of removal; temporary stay of removal continues in effect until the issuance of the mdt or further order of the ct." (Docket # 6, Exhibit 12 at 5.)
On June 5, 2006, Respondents filed a motion to remand to the Board of Immigration Appeals for reconsideration of the determination that Macalma had not derived citizenship through his father under former section 321 of the Immigration and Naturalization Act, 8 U.S.C. § 1432(a). Respondents requested that the Court of Appeals remand the case to the Board "so that it can review this case in light of the Court's decision in Minaysan [v. Gonzales, 401 F.3d 1069 (9th Cir. 2005)]." (Doc. #6, Exhibit 16 at 2.)
On August 23, 2006, the Court of Appeals entered an order which appears on the docket in part as follows: "unless an opp to the mtn [to remand] is filed within 14 days of this order, the mtn will be granted." (Doc. # 6, Exhibit 14 at 7.)
On September 22, 2006, the Court of Appeals granted Respondents' "unopposed" motion to remand and stated "the parties are deemed to have agreed that the court's remand order shall stay ...