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Straube v. Chertoff

August 22, 2008

WILHELM STRAUBE, PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING MOTION TO AMEND JUDGMENT AND SUA SPONTE AMENDING IN PART

Petitioner Wilhelm Straube, a Guatemalan native, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his federal detention. On May 14, 2008, the court granted the petition in part and ordered Respondents to provide Petitioner with a bail hearing within 60 days before an Immigration Judge ("IJ") with the power to grant him bail unless the government established that he was a flight risk or would be a danger to the community. (Doc. no 13 (the "May 14, 2008, Order").)*fn1 On May 16, 2008, Petitioner filed a motion to amend the May 14, 2008, Order. Respondents oppose the motion. The court took the motion under submission on June 20, 2008. On July 30, 2008, the court requested further briefing addressing the impact on Petitioner's motion of Prieto-Romero v. Clark, 2008 U.S. App. LEXIS 15934 (9th Cir. Jul. 25, 2008), and Casas-Castrillon v. Lockyer, 2008 U.S. App. LEXIS 15966 (9th Cir. Jul. 25, 2008). (Doc. no. 19.) Both parties submitted supplemental briefs pursuant to the court's request. For the reasons set forth below, the court hereby DENIES the motion to amend, and sua sponte AMENDS in part.

I. BACKGROUND

Petitioner unlawfully entered the United States in 1976. (See Return, Exhs. at 2 (Order to Show Cause dated Oct. 19, 1988).) On October 20, 1987, he was convicted of three counts of burglary and sentenced to six years in prison. (See id. at 1.) On August 24, 1995, he was convicted of unlawful taking of a vehicle. (See id. at 14.) On June 9, 1998, he was convicted of petty theft with a prior and sentenced to six years in prison. (See id. at 7-13.) Respondents took Petitioner into custody on January 26, 2004, upon his release from prison. Petitioner remains in their custody.

On July 22, 2004, an immigration judge ("IJ") ordered Petitioner deported to Guatemala and rejected Petitioner's request for asylum and withholding or removal. On January 13, 2005, the Board of Immigration Appeals ("BIA") denied Petitioner's appeal as untimely. On February 3, 2005, Petitioner filed a timely appeal in the Ninth Circuit. See Straube v. Mukasey, No. 05-70573 (9th Cir. filed Feb. 3, 2005). The court consolidated this appeal with another petition for review, see Straube v. Mukasey, No. 05-73317 (9th Cir. filed Jun. 6, 2005), and granted Petitioner's motion to stay deportation. After conducting oral argument on August 7, 2007, the court deferred submission of the appeal and allowed the parties to seek re-opening of the case in the BIA. On October 1, 2007, The IJ granted the parties' joint motion to reopen and reissued its decision, enabling Petitioner to file a timely appeal with the BIA. (See Mot., Exh. A at 1, 3 (BIA Appeal Order dated Apr. 15, 2008).) The BIA dismissed Petitioner's timely appeal on April 15, 2008. (See id. at 1-2.) The appeal in Case No. 05-70573 is now in abeyance.

II. DISCUSSION

A. Legal Standards

Reconsideration under Federal Rule of Civil Procedure ("FRCP") 59(e) is proper when the court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Highly unusual circumstances also warrant reconsideration. Id. "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Accordingly, "[a] district court has discretion to decline to consider an issue raised for the first time in a motion for reconsideration." Novato Fire Protection Dist. v. United States, 181 F.3d 1135, 1142 n.6 (9th Cir. 1999).

Rule 60(b) also provides that a court may grant reconsideration on the grounds of, inter alia, "mistake, inadvertence, surprise, or excusable neglect." FRCP 60(b)(1). The "mistake" component of Rule 60(b)(1) allows a court to correct its own error of law sua sponte. See Kingsvision Pay-Per-View v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).

B. Authority to Order Bail Hearing

Petitioner argues that the court committed clear error because "it is procedurally improper for this Court to delegate the inquiry on scope of relief to the IJ and that it is preferable, if necessary, to refer this matter to a neutral, non-party adjudicator, such as the Magistrate Judge, for determination of the precise remedy to be accorded Petitioner." (Mot. at 1.) He initially contended and still maintains that the applicable federal regulations and statutes do not authorize a bail hearing conducted by an IJ.

A complicated statutory framework governs detention cases. See Prieto-Romero, 2008 U.S. App. LEXIS 15934, at *6. Several provisions within this framework authorize the Attorney General to detain aliens. Under 8 U.S.C. § 1226(a), the Attorney General "may" arrest and detain an alien "pending a decision on whether the alien is to be removed from the United States." Under 8 U.S.C. § 1226(c), the Attorney General "shall" take into custody certain categories of criminal aliens. Furthermore, under 8 U.S.C. § 1231(a), the Attorney General "shall" detain an alien "[d]uring the removal period," 8 U.S.C. § 1231(a)(2), and "may" detain inadmissible or criminal aliens "beyond the removal period," 8 U.S.C. § 1231(a)(6).

In Prieto-Romero, the Ninth Circuit held that § 1226(a) provides "authority to detain an alien whose removal order is administratively final, but whose removal has been stayed by a court of appeals pending its disposition of his petition for review." Prieto-Romero, 2008 U.S. App. LEXIS 15934, at *11. Petitioner falls into this category of aliens whose removal orders are "administratively -- but not judicially -- final." Id. at *13. Although this court did not rely on the same line of reasoning in determining that § 1226(a)(1) provides the authority for Petitioner's detention (see May 14, 2008, Order at 4), Prieto-Romero provides further support for the court's earlier conclusion. See also CasasCastrillon, 2008 U.S. App. LEXIS 15966, at *13 (following Prieto-Romero in holding that § 1226(a) authorizes "prolonged detention of aliens awaiting judicial review of their removal orders").

The Ninth Circuit has further held, both explicitly and implicitly, that courts have the authority to remedy prolonged detention under § 1226(a) by ordering the government to provide an individualized bond hearing before an IJ. The court first authorized this remedy for an alien mandatorily detained under § 1226(c). See Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005). The Tijani court held that the detention lasting two years and eight months was "not expeditious." Id. Consequently, the court remanded "with directions to grant the writ unless the government within 60 days of this order provides a hearing to [the alien] ...


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