The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DIRECTING PETITIONER'S RELEASE UNDER APPROPRIATE CONDITIONS OF SUPERVISION
Presently before the Court is Petitioner Joel Judulang's Motion to Enforce This Court's Order. The Court GRANTS the Motion and ORDERS that Petitioner, Joel Judulang, be released under appropriate conditions of supervision.
Petitioner, born in the Phillipines, has been a lawful permanent resident of the United States since July 4, 1974. On October 11, 1989, Petitioner was convicted of voluntary manslaughter in California state court and sentenced to a six-year suspended sentence. (Respondents' Return in Opposition to the Petition, Doc. 8, Ex. B.) On June 12, 2003, Petitioner was convicted of grand theft in California state court and sentenced to two years and eight months in prison. (Id., Ex. C.)
On July 7, 2005, Petitioner was taken into custody by Respondents due to the initiation of removal proceedings. He was charged with deportability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii) which allow the deportation of an alien convicted of an aggravated felony and the deportation of an alien convicted of two or more crimes involving moral turpitude.
On September 28, 2005, an immigration judge ordered petitioner removed. (Return, Ex. E.) Petitioner appealed to the Board of Immigration Appeals ("BIA"), which denied his appeal on February 3, 2006. (Return, Ex. F.) Petitioner filed a petition for review of the BIA's decision in the Ninth Circuit Court of Appeals on February 24, 2006. (Return, Ex. G.) His petition for review, Case No. 06-70986, contests his removability on several grounds. Petitioner concurrently filed a motion for stay of removal, which Respondents did not oppose, and the court granted on July 7, 2006. (Id.) Petitioner filed his opening brief on October 23, 2006, and Respondents filed an opposition on December 7, 2006. (Id.) The Ninth Circuit heard oral argument on June 4, 2007. (Id.) The Ninth Circuit then stayed petitioner's case pending the outcome of another case addressing the same issue raised by Petitioner, Abebe v. Gonzales. In a published opinion in Abebe, 493 F.3d 1092, 1099 (9th Cir. 2007), the court rejected a detainee's argument under Section 212(c) of the Immigration and Naturalization Act which was identical to one of petitioner's claims in his appeal. The Ninth Circuit has since withdrawn its opinion pending rehearing of Abebe en banc (Petitioner's Notice, Doc. No. 9). The court cited Abebe in denying petitioner's appeal as to his Section 212(c) argument (id. at 5), and Petitioner argues the court is likely to rehear his case after rehearing Abebe (Doc. No. 11). Petitioner's continued detention has been reviewed twice during the pendency of his Ninth Circuit appeal. On June 6, 2006, Petitioner was informed of ICE's decision to continue to detain him due to his failure "to demonstrate" he "will not pose a flight risk." (Return, Ex. I.) On June 5, 2007, Petitioner was informed of the ICE's decision to continue detention by a letter explaining he is "an extreme threat to the community" and thus will remain in ICE custody pending removal from the United States. (Return, Ex. H.)
ii. Petitioner's Habeas Petition
On August 2, 2007, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 18 U.S.C. 2241, arguing that his detention at the hands of Respondents was unlawful under the Ninth Circuit's decisions in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) and Nadarajah v. Gonzalez, 443 F.3d 1069 (9th Cir. 2006).
On February 12, 2008, this Court granted in part Petitioner's Petition and, relying on the Ninth Circuit's remedy in Tijani, ordered Respondents to provide Petitioner with a bail hearing before an immigration judge with the power to grant him bail unless the government were to establish Petitioner as a flight risk or a danger to the community.
On March 28, 2008, Petitioner filed a Motion For Enforcement of This Court's "Order Granting in Part Petition for Writ of Habeas Corpus," asserting Respondents are still unlawfully detaining him and that they have failed to prove he is a flight risk or danger to society. Plaintiff asserts that the untranscribed hearing before an immigration judge held on March 11, 2008 failed to comply with the Court's February 12, 2008 Order or due process. By the time of the hearing, Petitioner had been in continuous custody for over five years.
Petitioner asserts that after the Court's Order was issued, nothing happened for thirteen days. Then, on February 25, 2008, Petitioner received notice from an ICE officer that he was scheduled to appear at a "custody redetermination hearing before the immigration court" in El Centro, Califronia less than 24 hours later. Petitioner notified counsel immediately who sought and received a continuance to March 11, a date when witnesses would be able to attend.
According to the declarations of both counsel in the case, the following transpired at the March 11, 2008 hearing:
Immigration Judge Dennis R. James conducted the hearing. The IJ denied Petitioner's request to record proceedings.
During the course of the hearing, the IJ indicated his reluctance to conduct the hearing at all, stating that he believed that he lacked jurisdiction to conduct the bail hearing, but would conduct the hearing only because he was ordered to do so by this Court. Likewise, the IJ stated that the BIA had no jurisdiction over any appeal, and acting on this belief, crossed out the line on his order that normally would be used to indicate whether appeal was waived or reserved. The IJ instructed the Government and Petitioner to take any actions they believed appropriate at the conclusion of the hearing.
After initiating the hearing by conducting questioning of Petitioner, the IJ asked Petitioner's counsel to proceed. Upon being reminded that the Government bore the burden of proof, the IJ required the Government to present its case first.
Apparently in response to Government questions, Petitioner testified about his past criminal convictions. The Government presented no witnesses and introduced no documentary evidence. It made ...