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Forero-Arias v. Chertoff

February 21, 2008

JOSE FORERO-ARIAS, PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL; ROBIN F. BAKER, DIRECTOR OF SAN DIEGO FIELD OFFICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; GABRIELA PACHECO, OFFICER-IN-CHARGE; 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 the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner Jose Forero-Arias. (Doc. # 1). The Court finds this matter suitable for submission on the papers and without oral argument. See Civil Local Rule 7.1(d)(1).

PROCEDURAL BACKGROUND

On July 26, 2007, Petitioner Jose Forero-Arias filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, accompanied by a motion for appointment of counsel. (Docs. # 1-2). On July 31, 2007, this Court ordered Respondents to show cause as to why the Petition should not be granted. (Doc. # 3). On August 14, 2007, the Court granted Petitioner's motion to appoint counsel. (Doc. # 7). On August 31, 2007, Respondents filed a Return. (Doc. # 9). On October 1, 2007, Petitioner filed a traverse. (Doc. # 10).

On January 8, 2008, this Court ordered the parties to file supplemental briefs regarding the status of this case in light of this Court's order in Mustanich v. Gonzales, Case No. 07CV1100 WQH (LSP), 2007 U.S. Dist. LEXIS 71401 (S.D. Cal. Sept. 26, 2007). (Doc. # 11). On January 18, 2008, both Petitioner and Respondents filed supplemental briefs. (Docs. # 12-13).

FACTUAL BACKGROUND

Born in Columbia on November 27, 1953, Petitioner Jose Forero-Arias entered the United States as a lawful permanent resident on or about September 1, 1968. Petition for Writ of Habeas Corpus (Petition) (Doc. # 1) at 2; Return (Doc. # 9), Exs. A-B. On June 4, 1996, the State of California convicted Petitioner of fraudulent use of an access card in violation of California Penal Code § 484(g), and sentenced Petitioner to two years and eight months in prison. Return, Ex. C. On April 22, 1999, the State of California convicted Petitioner of petty theft with a prior jail term in violation of CAL. PEN. CODE § 666, and again sentenced Petitioner to two years and eight months in prison. Return, Ex. C. On December 17, 2001, the State of California convicted Petitioner of grand theft of personal property in violation of CAL. PEN. CODE § 487(a), and sentenced Petitioner to sixteen months in prison. Return, Ex. A. Petitioner was scheduled for release from state custody on February 9, 2005, following his conviction for grand theft. Return, Ex. A.

On January 18, 2005, Respondents initiated removal proceedings against Petitioner pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of an alien convicted of an aggravated felony. Return, Ex. B. On January 24, 2005, Respondents issued a notice of custody determination, and determined that Petitioner would be taken into federal custody upon his release from state custody. Return, Ex. D. On February 9, 2005, Petitioner entered Respondents' custody pursuant to 8 U.S.C. § 1226(c), which requires the Attorney General to detain aliens deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Petition at 2; Return at 1-2, Ex. D.

On June 21, 2006, an Immigration Judge (IJ) denied Petitioner's request for withholding of removal and application for relief under the Convention Against Torture, and ordered Petitioner removed to Columbia. Return, Ex. J. Petitioner argued unsuccessfully to the IJ that his state crimes were not "aggravated felonies" under 8 U.S.C. § 1101(43)(G), and that his status as a government drug informant and member of other social groups required relief under the Convention Against Torture.

Return, Ex. J. On November 1, 2006, the Bureau of Immigration Appeals (BIA) affirmed the order of the IJ. Return, Ex. K.

On November 28, 2006, Petitioner filed a Petition for Review of the BIA decision in the Court of Appeals for the Ninth Circuit, accompanied by a motion to stay deportation. Petition at 3; Return, Ex. L (Docket, Court of Appeals for the Ninth Circuit Case No. 06-75476). On March 7, 2007, the Court of Appeals granted Petitioner's motion to stay deportation because Respondents did not timely oppose or otherwise respond to the motion. Return, Ex. L; see also General Order of the Court of Appeals for the Ninth Circuit 6.4(c). The Court of Appeals' order staying Petitioner's deportation remains in effect today. Return, Ex. L. Both Petitioner and Respondents have sought extensions of time in the Court of Appeals. (Doc. # 13 at Ex. D).

On July 26, 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 in Respondents' custody for twenty-nine-and-a-half months. Petition at 3.

Petitioner has not received a bail hearing before an IJ since he entered Respondents' custody on February 9, 2005.

DISCUSSION

Petitioner contends that he should be released pending resolution of his Petition for Review in the Court of Appeals for the Ninth Circuit. Petitioner contends that his continued detention under the general detention statutes violates the United States Constitution as articulated in Zadvydas v. Davis, 533 U.S. 678 (2001), Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), and Nadarajah v. Gonzales, 433 F.3d 1069 (9th Cir. 2006). Petitioner contends that there is no significant likelihood that he will be removed in the reasonably foreseeable future, and that his pending Petition for Review in the Court of Appeals presents substantial questions with respect to his right to stay in the United States. Petitioner contends that his Petition presents facts identical to those presented by the petitioner in Mustanich v. Gonzales, Case No. 07CV1100 WQH (LSP), 2007 U.S. Dist. LEXIS 71401 ...


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