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Mau v. Chertoff

June 10, 2008

EPARAMA MAU PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, MICHAEL MUKASEY, ATTORNEY GENERAL, ROBIN BAKER, DIRECTOR OF SAN DIEGO FIELD OFFICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, JOHN A. GARZON, OFFICER-IN-CHARGE, RESPONDENTS.



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

INTRODUCTION

Presently before the Court is Petitioner Eparama Mau's Motion to Amend and a Supplement to the Motion to Amend Judgment. While finding insufficient grounds to amend the prior judgment, the Court, interpreting the Supplement as a Motion for the Court to Enforce its Prior Order, GRANTS the Motion and ORDERS that Petitioner, Eparama Mau, be released under appropriate conditions of supervision.

BACKGROUND

I. Factual Background

i. Prior Proceedings

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. On December 15, 2004, a removal hearing was held. Petitioner admitted each of the allegations filed against him. The immigration judge ("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 Board of Immigration Appeals ("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, in Case No. 05-72765. Petitioner's opening brief was filed late on November 17, 2005, but was accepted by the Court. Respondents' brief was filed on February 9, 2006. Petitioner filed his reply brief on March 9, 2006. On April 23, 2008, Respondents filed a motion to expedite appeal of the petition for review. As of the date of this order, however, no action has since taken place in the case.

ii. Petitioner's Habeas Petition

On October 19, 2007, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 18 U.S.C. 2241, arguing that his by then 36 month 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 March 11, 2008, this Court granted in part Petitioner's Petition and, relying on the Ninth Circuit's remedy 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 is a flight risk or a danger to the community.

On March 13, 2008, Petitioner's counsel was informed that a hearing had been scheduled for Petitioner before the immigration court for March 24, 2008. No official formal notice was given by the immigration court to Petitioner's counsel.

On March 17, 2008, Petitioner filed a Motion to Amend the Judgment requesting this Court amend its order and refer the bail hearing to the assigned magistrate judge in this case as opposed to an immigration judge. Petitioner argued there is no immigration judge with the power to grant Petitioner bail as the Court ordered because immigration judges lack jurisdiction over post-final-order custody decisions. Further, Petitioner argued that a bail hearing before an immigration judge would not be constitutionally adequate since it would entail various procedural defects. Specifically, Petitioner argued that because referral to the IJ has no basis in statute, the lines of review following an adverse determination were murky. Petitioner also noted that in other Tijani hearings conducted by IJs on orders of this Court, no recording or transcription of the proceedings had taken place; if the same were to occur in his case, argued Petitioner, it would hamper any efforts at review.

Petitioner suggested that a procedurally preferable remedy would be to refer the bail hearing to the magistrate judge assigned to the case. Petitioner argued that the magistrate judge would be at least as qualified, if not more so, to examine the issues to be resolved in a release hearing and had the additional benefit of independence since the magistrate judge, unlike an IJ, is not affiliated with a named party in this litigation (i.e., the Attorney General).*fn1

iii. Tijani Bail Hearing

The IJ held a bail hearing on March 24, 2008. According to the accounts of Petitioner's counsel and Government counsel, the following transpired:

Immigration Judge Henry Ipema conducted the hearing. The IJ denied Petitioner's request to record proceedings.

At the hearing, Government counsel argued Petitioner was a flight risk and a danger because he had lost his administrative appeals and his conviction for DUI with injury was found by a previous immigration judge to be a particularly serious crime. Petitioner responded that in his latest custody review, ICE had not alleged he was a flight risk, only that he was a threat the community. Petitioner presented argument and evidence that he was neither a danger nor a flight risk. Specifically, Petitioner pointed to his lack of any history of violence, his unbroken compliance while in state and federal custody, and the mitigated nature of his criminal convictions. Petitioner argued that these prior convictions, two of which were misdemeanors, and one non-aggravated felony were not particularly serious and should not be used as proof of current dangerousness. Petitioner argued that any potential harm that he presented to public safety could be addressed by special conditions of release, such as attending alcohol abuse treatment or placing restrictions on permission to drive.

Petitioner next argued he was not a flight risk as noted by the presence of family and friends in northern California, his past work history, offers of residence and employment, and his evidence of rehabilitation while in custody.

Petitioner argued no bond was necessary, since any concerns could be addressed by reasonable conditions of release, such as an ICE standard Order of Supervision. Petitioner urged the IJ to consider the fact that Petitioner had been detained for an extensive period of time with no income in setting an appropriate bail amount.

The IJ ruled Petitioner was eligible for bond. Holding that Petitioner's convictions showed he was "a proven danger," the IJ refused to impose a low bond. The IJ stated that anyone who saw Petitioner driving at him or her on the highway would feel threatened. The IJ imposed a cash bond of $100,000 with a condition that Petitioner not drive if released and surrender any driver's license he possesses.

The IJ stated that a written opinion would be issued only if an appeal is filed with the BIA.

Petitioner preserved his right to appeal and has 30 days from date of IJ order to appeal, however, Petitioner maintains the IJ and the BIA lacks authority to determine the conditions of release.

iv. Supplement to the Motion to Amend

On March 27, 2008, Petitioner filed a Supplement to Motion to Amend. In that document, Petitioner described the proceedings before the IJ set forth above. Petitioner argues the conduct of the bail hearing demonstrates the procedural deficiencies Petitioner had warned of in his Motion to Amend. Specifically, Petitioner notes the proceedings were deficient in that they had the following problems: (1) lack of notice to counsel; (2) lack of adequate record for review; (3) improper application of the burden of proof; (4) improper application of the ...


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