The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS
Presently before the Court is Petitioner Eparama Mau's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Petitioner seeks release pending the outcome of his challenge to his deportation order which is currently under review in the Ninth Circuit Court of Appeals. For the following reasons, the Court GRANTS IN PART the Petition and orders Respondents to provide Petitioner with a bail hearing.
Petitioner is a native and citizen of Fiji. He entered the United States in March 2001 as a non-immigrant B-2 visitor for pleasure with authorization to remain in the United States until September 14, 2001. He subsequently remained in the United States beyond this date without authorization.
On March 16, 2004, while on probation for a previous conviction for driving under the influence, Petitioner was convicted of violating California Vehicle Code § 23153(b) for Driving Under the Influence with Bodily Injury and was sentenced to 16 months' imprisonment. On September 16, 2004, Immigration and Customs Enforcement initiated removal proceedings against Petitioner, charging him with deportability pursuant to 8 U.S.C. § 1227(a)(1)(B), which provides for the deportation of an alien who violates his non-immigrant status.
Petitioner was transferred to the custody of the Respondents on October 5, 2004 and held in custody pending removal proceedings before the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA"). On December 15, 2004, a removal hearing was held. Petitioner admitted each of the allegations filed against him. The IJ found Petitioner removable based on the admissions. The IJ heard testimony from the Petitioner regarding his fear of being returned to Fiji based on past instances of abuse at the hands of Fijian officials which the IJ concluded was credible. However, the IJ denied Petitioner's applications for asylum and withholding under the Immigration Act and the Convention Against Torture based on Petitioner's DUI conviction. The IJ further denied deferral of removal under the Convention Against Torture based on a finding that Petitioner had not established it more likely than not that he would be tortured by a public official if returned to Fiji. Petitioner timely appealed the decision of the IJ to the BIA. The BIA affirmed the IJ's ruling on April 28, 2005.
Petitioner then filed a timely petition for review pro se with the Ninth Circuit on May 12, 2005. The same day, Petitioner moved for a stay of deportation pending appeal; Respondents filed a notice of non-opposition to the stay on July 8, 2005. Following two extensions of time, Petitioner's opening brief was filed late on November 17, 2005, but was accepted by the Court. Respondents were ordered to file their brief by January 26, 2006. On January 20, 2006, the Respondents sought a two-week extension of time to file their brief. Petitioner filed an opposition to the extension on February 7, 2006. Respondent's brief was filed on February 9, 2006. After a 14-day extension, Petitioner filed his reply brief on March 9, 2006. No action has since taken place in the case.
Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 18 U.S.C. 2241 on October 19, 2007. (Doc. No. 1.) The Court granted Petitioner's accompanying motions to proceed in forma pauperis and for appointment of counsel. (Doc. No. 6, 9.) Respondents filed their return to the Petition on December 28, 2007. (Doc. No. 15.) Petitioner filed a traverse on January 18, 2008. (Doc. No. 16).
Pursuant to 28 U.S.C. § 2241, alien detainees can properly challenge the extent of the Attorney General's authority to detain a removable alien under the statutes authorizing detention. Zadvydas v. Davis, 533 U.S. 678, 687-89 (2001); see also Denmore v. Kim, 538 U.S. 510, 516-17 (2003). Where, as here, an administrative order of removal is not final, "habeas corpus jurisdiction remains in the district court." Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006); see also 8 U.S.C. § 1231(a)(1) (describing how a removal order becomes final).
1. Respondents' Authority to Detain ...