Petitioners are civil detainees presently detained in the Yuba County Jail pursuant to a final order of removal. The parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). Petitioners' motion for preliminary injunction came on regularly for hearing December 18, 2008. Jagdip Singh Sekhon appeared for petitioners. Audrey B. Hemesath, Assistant United States Attorney, appeared for respondents. Upon review of the motion and the documents in support and opposition, upon hearing the arguments of counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Petitioners Anita Devi and Kunaal Venkat are citizens and nationals of Fiji. They are subject to a final order of removal, and based on that order, respondents are detaining them pursuant to Immigration and Nationality Act ("INA") § 241(a)(6), 8 U.S.C. § 1231 (a)(6). Petitioners are currently challenging the denial by the Board of Immigration Appeals ("BIA") of their motion to reopen their removal proceedings through a petition for review pending with the United States Court of Appeals for the Ninth Circuit. See Devi, et al., v. Mukasey, 08-72786. The Court of Appeals has stayed their removal pending the adjudication of their petition for review, and respondents have detained petitioners in the Yuba County Jail since May 27, 2008, and intend to detain them during the pendency of the adjudication of their petition for review. See id. Petitioners are thus facing prolonged detention. See Casas-Castrillon v. DHS, 535 F.3d 942, 949-50 (9th Cir. 2008)(detention pending judicial review, although not indefinite, is prolonged.)
Petitioners' habeas petition challenges the legality of their prolonged detention as well as their prolonged detention without being afforded a bond hearing. Petitioners have also filed a motion for preliminary injunction seeking to enjoin respondents from further detaining them without granting them a hearing before a neutral decision maker -- an immigration judge -- for the purpose of determining whether their prolonged detention during the course of the adjudication of their petition for review is warranted either because they pose "a risk to the community" or because they are "unlikely to comply with the order of removal." See INA § 241(a)(3), 8 U.S.C. § 1231(a)(3).
Petitioner Anita Devi and Kunaal Venkat are both citizens and nationals of the Fiji Islands. Ms. Devi is a divorced mother of two children, and one of her children is her son Kunaal, age nineteen. Ms. Devi and Kunaal left Fiji on March 18, 1993, and that same day arrived in the United States at San Francisco, California. The immigration authorities admitted Ms. Devi and Kunaal as visitors until September 17, 1993. They have remained in the United States ever since.
Ms. Devi left Fiji with Kunaal because she was fleeing persecution on account of her South Asian ethnicity. Within one-year of her arrival in the United States, in mid-1994, Ms. Devi applied for asylum with the former Immigration and Naturalization Service (INS). INS referred her application to the Office of the Immigration Judge (IJ). Ms. Devi hired attorney Miguel Gadda who represented Ms. Devi from 1994 until 2002, when the State Bar of California disbarred him. Petitioners contend Mr. Gadda represented her ineffectively.
The administrative agency denied Ms. Devi's application for asylum and related relief, resulting in a final order of removal in October 28, 1997. The Court of Appeals denied Ms. Devi's petition for review of the agency's decision on March 2, 1999. Mr. Gadda filed a motion to reopen with the BIA in July 1999 that the BIA denied on December 14, 1999. Mr. Gadda filed a second motion to reopen with the BIA on July 20, 2000; the BIA denied this motion on January 30, 2003. Mr. Gadda was disbarred in 2002 while the second motion to reopen was pending.
Ms. Devi hired Martin Rezendez Guajardo to replace Mr. Gadda. Mr. Guajardo did nothing until the BIA denied Ms. Devi's second motion to reopen. Then, on Ms. Devi's behalf, Mr. Guajardo petitioned the Court of Appeals to review the BIA denial. The Court of Appeals dismissed Ms. Devi's petition for review on August 17, 2004.
In September 2004, more than two and one-half years after he began representing Ms. Devi, Mr. Guajardo moved the BIA to reopen Ms. Devi s removal proceedings, and the BIA denied it stating that the motion to reopen was filed beyond the ninety day regulatory deadline, and petitioners were not entitled to equitable tolling of the deadline until September 2004. Mr. Guajardo filed a petition for review challenging the denial of the motion to reopen, and on December 13, 2006, the Court of Appeals denied it. Mr. Guajardo filed another motion on behalf of petitioners, their fourth motion and the second motion prepared by Mr. Guajardo. The BIA denied the motion in December 2007. Mr. Guajardo advised petitioners to seek Court of Appeals review of the BIA s denial of the motion to reopen, took petitioners' money, but did not file the petition for review. Mr. Guajardo was disbarred on April 17, 2008.*fn2 Ms. Devi learned of Mr. Guajardo's failure to file on February 22, 2008.
On February 22, 2008, Ms. Devi met with present counsel with her case file, and recounted its history. After reviewing the case file, petitioners' present counsel advised petitioners they may have a viable motion to reopen based on the ineffective representation of Messrs. Gadda and Guajardo.
On or about May 19, 2008, Ms. Devi and Kunaal filed a motion to reopen with the BIA based on the ineffective assistance of Messrs. Gadda and Guajardo. They also filed a motion to stay their removal with the Board pending the adjudication of their motion to reopen. They subsequently filed a request with DHS, specifically its San Francisco District Director, seeking the same relief. The BIA first denied the motion for stay, and then denied petitioners' motion to reopen. The BIA did not express doubt regarding the ineffective representation of Messrs. Gadda and Guajardo. The BIA, however, held that petitioners failed to demonstrate the prejudice necessary to support a motion to reopen. Petitioners are seeking judicial review of the denial of the motion to reopen, and the Court of Appeals has stayed their removal pending review.
Immediately following the filing of their motion to reopen, on or about May 19, 2008, DHS, unannounced, raided petitioners' home ostensibly to apprehend and remove them. Ms. Devi and Kunaal eluded DHS at that time. Petitioners then called their present counsel who arranged for them to surrender to DHS on May 27, 2008. DHS took Ms. Devi and Kunaal into custody on the grounds that their removal was imminent.
In August 2008, DHS referred the case to the IJ for a hearing to review Petitioners' custody status. DHS did so pursuant to Casas-Castrillon, which held that non-citizens in DHS custody seeking direct review of a final order of removal are detained under INA § 236(a), 8 U.S.C. § 1226(a), and are entitled to such a hearing. The hearing was scheduled for October 23, 2008.
Prior to the October 23rd hearing, the Court of Appeals decided Diouf.*fn3 Diouf held that Casas-Castrillon v. Mukasey, 535 F.3d 942 (9th Cir. 2008) did not address whether non-citizens such as petitioners are entitled to a hearing to review their custody status, because DHS's authority to detain them was not based on INA § 236(a), 8 U.S.C. § 1226(a). Diouf, 542 F.3d at 1229-30. DHS's authority to detain petitioners and non-citizens like them, instead rested on INA § 241(a), 8 U.S.C. § 1231(a), because they were seeking review of an agency's denial of a motion to reopen removal proceedings, and not seeking direct review of a final order of removal. Id. Diouf left open the question of whether non-citizens in petitioners' circumstance were entitled to a hearing to review their custody status. Id.
At the October 23, 2008, hearing, the IJ summarily held that he did not have jurisdiction to review petitioners' custody status, citing Diouf.
On November 7, 2008, petitioners filed the instant petition.
SUBJECT MATTER JURISDICTION
Habeas corpus relief is appropriate when a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Habeas corpus proceedings are available as a forum for statutory and constitutional challenges to the authority of the Attorney General to order detention of a person. See Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491 (2001); Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir.2006). The REAL ID Act of 2005, Pub.L. No. 109-13, Div. B., 119 Stat. 231, does not divest this court of jurisdiction over habeas petitions that do not involve final orders of removal. Nadarajah, 443 F.3d at 1075. ...