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Mustanich v. Gonzales

September 26, 2007

JESS MUSTANICH, AKA JESS WILLIAM ALFARO, PETITIONER,
v.
ALBERTO GONZALES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS IN PART

Pending before the Court is Petitioner Jess Mustanich's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1).

BACKGROUND

Born in El Salvador on August 15, 1978, Petitioner Jess Mustanich was adopted by United States citizens shortly after his birth and moved to the United States. Petition for Writ of Habeas Corpus (Pet.), ¶ 15. On February 22, 1979, the United States admitted Petitioner, age six months, as a lawful permanent resident. Pet., ¶ 15.

In 1988, Petitioner's father met with and telephoned officers of the Department of Homeland Security in an attempt to secure United States citizenship for Petitioner pursuant to 8 U.S.C. § 1433.*fn1 Pet., ¶ 9; Return, Ex. C at 4-6. Petitioner's father also sought the help of a juvenile court. Return, Ex. C at 4-6. However, Petitioner's father was unsuccessful in timely completing the paperwork necessary to secure citizenship for Petitioner. Pet., ¶ 9. Petitioner alleges that the United States Government's neglect and error resulted in Petitioner's application for citizenship not being processed before Petitioner's eighteenth birthday. Pet., ¶ 9; Return, Ex. C at 4-6.

On April 15, 1997, Petitioner was convicted of two counts of residential burglary, in violation of California Penal Code §§ 459 and 460(a). Pet., ¶ 16. On December 21, 1998, Petitioner was convicted of being a prisoner in possession of a sharp instrument, in violation of California Penal Code § 4502(A). Pet., ¶ 16.

On July 10, 2003, Respondents took Petitioner into custody and initiated removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of an alien convicted of an aggravated felony. Pet., ¶ 17; Return, Ex. B. On February 10, 2004, an Immigration Judge (IJ) denied Petitioner's request for termination of removal proceedings and ordered Petitioner removed to El Salvador. Pet., ¶ 17; Return, Ex. C. Petitioner argued unsuccessfully to the IJ that the United States Government delayed and wrongfully impeded Petitioner's father's attempt to secure citizenship for Petitioner. Pet., ¶ 15; Return, Ex. C. On July 29, 2004, the Bureau of Immigration Appeals (BIA) affirmed the IJ's administrative order of removal. Pet., ¶ 17; Return, Ex. D.

On August 26, 2004, Petitioner filed a Petition for Review of the BIA decision in the Court of Appeals for the Ninth Circuit. Pet., ¶ 6; Return, Ex. H (Docket, Court of Appeals for the Ninth Circuit Case No. 04-74290). Petitioner also filed a motion to stay deportation. Return, Ex. H. On August 27, 2004, the Court of Appeals for the Ninth Circuit ordered Respondents to respond to Petitioner's motion to stay deportation and to file the administrative record on or before October 26, 2004. Return, Ex. H. Respondents did not comply with the Court of Appeals' order. On November 3, 2004, Respondents requested an additional three months to file the administrative record and a response to Petitioner's motion to stay deportation. Return, Ex. H. On November 8, 2004, the Court of Appeals for the Ninth Circuit granted Respondents' request for an extension of time, and ordered Respondents to file the administrative record and a response to Petitioner's motion to stay deportation on or before January 25, 2005. Return, Ex. H. Respondents once again did not comply with the order of the Court of Appeals. Return, Ex. H. On January 28, 2005, Respondents filed the administrative record. Return, Ex. H.

On February 7, 2005, the Court of Appeals accepted Respondents' late filing of the administrative record, but noted that Respondents had "failed to file a response to the motion for a stay." Return, Ex. H. The Court of Appeals ordered that "within 21 days from the date of this order, [respondents] shall file a response to the motion for stay. In light of this delay, if [respondents] [fail] to comply with this order, the court will construe [respondents'] failure to respond as a [statement] of non/opp to the stay motion." Return, Ex. H.

Respondents did not file a response to Petitioner's motion to stay deportation within 21 days of the Court of Appeals' February 7, 2005, order. Return, Ex. H. On March 10, 2005, the Court of Appeals ordered that, "[i]n light of this [court's] Feb. 7, 2005 order, [respondents'] failure to respond to the motion to stay removal is construed as a statement of non/opp to the stay motion." Return, Ex. H. The Court of Appeals granted Petitioner's motion for stay of deportation, and set a briefing schedule with respect to Petitioner's Petition for Review of the BIA's decision. Return, Ex. H.

On May 19, 2005, Petitioner filed the opening brief in the Court of Appeals. Return, Ex. H. Thereafter, on June 17, 2005, Respondents sought an extension of time to file an answering brief. Return, Ex. H. On July 6, 2005, the Court of Appeals granted Respondents' motion for an extension, and ordered Respondents to file an answering brief on or before July 29, 2005. Return, Ex. H. Respondents filed an answering brief on August 4, 2005. Return, Ex. H.

On June 18, 2007, Petitioner filed the pending Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1). As of the date of the Petition, Petitioner had been incarcerated for three years and eleven months. Pet., ¶ 31.

During Petitioner's detention, Respondents internally reviewed the terms of Petitioner's detention on three occasions. Return, Exs. E-G. On February 2, 2005, Respondents concluded that Petitioner could not be released on supervision because, "you have demonstrated your inability and/or lack of respect for the laws of this country as is reflected in your criminal and immigration record." Return, Ex. E. Respondents did not interview Petitioner before the February 2, 2005, custody determination, and did not identify Petitioner as a flight risk or a danger to the community at the time.

Return, Ex. E. On November 1, 2005, Respondents concluded that Petitioner could not be released on supervision because he was considered a "flight risk." Return, Ex. F. Respondents did not interview Petitioner before the November 1, 2005, custody determination, but noted that Petitioner had a place to live, close family ties, and employment prospects in the United States. Return, Ex. F. Respondents also concluded that Petitioner did not meet any of the criteria for continued detention pursuant to 8 C.F.R. § 241.14. Return, Ex. F. On November 8, 2006, Respondents concluded that Petitioner could not be released on supervision because he was considered "a threat to the community," and a "flight risk." Return, Ex. G. Respondents did not interview Petitioner before the November 8, 2006, custody determination. Return, Ex. G.

During each of the three internal custody reviews, Respondents indicated that Petitioner was being detained as an alien removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). See Return, Exs. E-G.

Petitioner has not received a bail hearing before an IJ during his more than four year ...


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