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Abdallah v. Chertoff

December 29, 2008


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


[Doc. No. 40]

Pending before the Court is Petitioner Faour Abdallah Fraihat's motion for appointment of counsel and request to reset briefing schedule regarding his currently pending motion to reconsider. For the reasons set forth below, the motions are granted.

Because the facts of the case are well known to the parties, the Court sets forth only those facts that are relevant to the pending motions. On October 15, this Court granted a conditional writ and ordered that Petitioner be provided a bond hearing before an Immigration Judge ("IJ"), pursuant to Prieto-Romero v. Clark, 534 F.3d 1053, 1060 (9th Cir. 2008), and Casas-Castrillon v. D.H.S., 535 F.3d 942 (9th Cir. 2008). (Doc. 35.) Pursuant to that order, the IJ held a bond hearing and thereafter denied Petitioner's request for bond on October 28, 2008. On November 12, 2008, Petitioner filed a motion for reconsideration with this Court, asking that he be released under supervision or on a reasonable bond. (Doc. 38.)

Petitioner seeks appointment of Federal Defenders of San Diego, Inc. ("Federal Defenders"). (Doc. 42., at 2.) Although filed as pro se pleadings, the pleading and documents presently before the Court were prepared by Federal Defenders. (Id.) Respondent opposes Petitioner's request. (Doc. 43).

While there is no constitutional right to appointment of counsel in habeas proceedings; counsel may be appointed where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). In determining whether counsel ought to be appointed, the court evaluates the likelihood of success on the merits and the ability of the petitioner to articulate his claims in light of the complexity of the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Petitioner argues that his bond hearing fell below the minimum procedural protections guaranteed by the Fifth Amendment's Due Process clause. (Doc. 42, at 6.) According to Petitioner, the hearing was deficient because the IJ found him to be a danger to the community even though the government failed to introduce any evidence at the hearing, and thus failed to carry its burden of proof. See Casas-Castrillon, 535 F.3d at 951 (citing Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005)). Petitioner also argues that procedural requirements, which presently are not afforded, should be employed in bond hearings such as his. Given the complexity of legal issues involved and the arguments raised by Petitioner regarding the alleged deficiencies in the bond hearing he received, as well as the alleged constitutional insufficiency of the process itself, the interests of justice are served through appointment of counsel. Petitioner's motion is therefore granted.

Respondent argues that the adequacy of Petitioner's bond hearing is a post-judgment event that gives rise to a new claim, and does not justify reopening the Court's decision under Federal Rules of Civil Procedure 59(e) or 60(b). (Doc. 42-2 at 1.) Respondent also argues that Petitioner's request should be denied because Petitioner has not exhausted his administrative remedies. (Id. at 2.) Petitioner appealed the IJ's decision to the Board of Immigration Appeals (BIA), and that appeal is pending. (Id.) The BIA, according to Respondent, should be allowed to determine the proper application of Casas-Castrillon and Prieto-Romero to bond hearing procedures and cure any due process violations committed by the IJ.

Petitioner argues that his "motion for reconsideration" does not invite the Court "to reconsider some decision it has already made" but rather asks the Court "to consider, for the first time, the sufficiency of his bond hearing." (Reply at 2-3.) The Court therefore interprets Petitioner's motion as motion for enforcement of the Court's prior order. See Mau v. Chertoff, 562 F.Supp.2d 1107,1115 (S.D.Cal. 2008) (treating petitioner's "motion to amend" regarding alleged deficient bond hearing by IF as motion to enforce court's prior conditional writ). This approach is consistent with Ninth Circuit law: "A conditional order's framework contemplates that a district court will eventually make an assessment concerning compliance with its mandate." Harvest v. Castro, 531 F.3d 737, 748 (9th Cir. 2008) (quoting Phifer v. Warden, 53 F.3d 859, 865 (7th Cir.1995)).

With respect to Respondent's argument that Petitioner must first exhaust his administrative remedies, the Court respectfully disagrees. "[Petitioner's] request for relief relates directly to this Court's prior order and, as such, there are no administrative remedies to exhaust. It should not fall to the BIA to review Respondents' compliance with this Court's judgment." Mau, 562 F.Supp.2d at 1114.

For these reasons, Petitioner's motion for appointment of counsel is granted. Because the office of Federal Defenders is familiar with Petitioner and the legal issues surrounding his detention, the Court grants the request to assign this habeas petition to Federal Defenders. Petitioner's motion to reset briefing schedule is also granted. Petitioner shall file an amended motion by January 16, 2009. Respondent shall file a response on or before February 6, 2009. Any reply shall be filed on or before February 13, 2009. Unless this Court orders otherwise, the motion will be taken under submission and decided without oral argument.



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