Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mustanich v. Mukasey

June 10, 2008

JESS MUSTANICH, PETITIONER,
v.
MICHAEL B. MUKASEY, UNITED STATES ATTORNEY GENERAL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER DENYING PETITIONER'S MOTION TO ALTER OR AMEND THIS COURT'S ORDER GRANTING IN PART PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

HAYES, Judge

Pending before the Court is Petitioner's motion to alter or amend judgment. (Doc. # 7). The Court finds this matter suitable for submission on the papers and without oral argument.

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; (Doc. # 1). On February 22, 1979, the United States admitted Petitioner, age six months, as a lawful permanent resident. Pet., ¶ 15.

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 (Doc. # 4), 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. 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, which the Court of Appeals granted. Return, Ex. H.

On June 18, 2007, Petitioner Jess Mustanich filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court. (Doc. # 1).*fn1 On September 26, 2007, this Court issued an Order granting in part, and denying in part, Petitioner's Petition for Writ of Habeas Corpus. (Doc. # 6). In the Order of September 26, 2007, the Court concluded that Petitioner was subject to detention pursuant to 8 U.S.C. § 1226(c), however, the Court further concluded that Petitioner was entitled to a bail hearing to determine whether he was a flight risk or a danger to the community. (Doc. # 6). The Court Ordered Respondents to provide Petitioner with a bail hearing before an IJ within 10 days of September 26, 2007. (Doc. # 6).

On October 3, 2007, Petitioner appeared before an IJ for a bail hearing. On October 3, 2007, the IJ denied bail, concluding that Petitioner was a flight risk and a danger to the community. See (Doc. # 7, Exs. A-B).

On October 8, 2007, Petitioner filed a motion to alter or amend the Court's "judgment of September 26, 2007." (Doc. # 7 at 1). On December 17, 2007, Respondents filed an opposition to the motion to alter or amend judgment. (Doc. # 9). On January 7, 2008, Petitioner filed a reply to support the motion to alter or amend judgment. (Doc. # 10).

On March 11, 2008, the Court of Appeals for the Ninth Circuit denied Petitioner's underlying immigration appeal. (Doc. # 11). On March 20, 2008, Petitioner filed a Petition for Panel Rehearing and Rehearing En Banc with the Court of Appeals. (Doc. # 12-2). On April 15, 2008, the Court of Appeals for the Ninth Circuit denied Petitioner's Petition for Panel Rehearing and Rehearing En Banc. See (Doc. # 13).

On April 30, 2008, this Court issued an Order to Show Cause as to why Petitioner's motion to alter or amend judgment should not be denied in light of the recent decision of the Court of Appeals for the Ninth Circuit. (Doc. # 13). On May 30, 2008, Respondents filed a response to the Order to Show Cause contending that Petitioner's motion to alter or amend judgment should be denied as moot because Respondents' authority to detain Petitioner shifted from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1231(a) when the Court of Appeals denied Petitioner's underlying immigration ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.