Petitioner's motion for a temporary restraining order came on regularly for hearing on January 7, 2008. Terry Hunt, Esq., appeared for petitioner. Assistant U.S. Attorney Audrey Hemesath appeared for respondents. Upon review of the documents in support and opposition,*fn1 upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS:
Petitioner's first amended petition seeks a writ of habeas corpus based on 28 U.S.C. § 2241, and also alleges violation of his Fifth Amendment due process rights. His motion for a restraining order, which seeks to prevent his imminent deportation, also relies on the Fifth Amendment.
Respondents represent that petitioner was the subject of a prior deportation order entered January 12, 2006 at Progreso, Texas. Respondents' counsel represented at hearing that this order was "expedited" and issued in a border area, meaning that petitioner presented himself at a border crossing without the paperwork required for entry and thus was immediately deported. Respondents represent that petitioner was removed from this country on February 13, 2008, based on a removal order, and subsequently reentered on or about June 1, 2008 at or near San Ysidro, California.
On or about October 4, 2008, petitioner was arrested on state misdemeanor charges of driving while intoxicated, and jailed at the Sacramento County Jail. According to petitioner's counsel at hearing, petitioner satisfied bail promptly, but then remained at the jail based on a detainer lodged by federal immigration officials. Petitioner's counsel believes that his detention since early October has been based solely on the federal detainer. Respondents' briefing suggests that his detention has included a period of time served based on the state charges.
In any event, at hearing the government provided a copy of a Notice of Intent/Decision to Reinstate Prior Order, which has now been filed. The Notice portion of the document is dated October 7, 2008, and notifies petitioner of the Attorney General's intent to reinstate the prior order of removal. The Notice references section 241(a)(5) of the Immigration and Nationality Act (the Act) and 8 C.F.R. § 241.8. The Notice includes a statement to the effect that it was communicated to petitioner in English and Spanish. The Notice includes a box entitled "Acknowledgment and Response," in which a box is marked indicating the recipient does not wish to make a statement contesting the determination; the Acknowledgment is dated "10/7/08" and petitioner's name is written next to a handwritten "x." At hearing, as in the petition, petitioner's counsel denied that petitioner was provided effective interpretation services. Counsel represents that petitioner was not given the opportunity to obtain counsel at the time he was provided the Notice. Counsel also represents that since being retained, counsel has formally requested a copy of petitioner's file and documents related to his status; prior to the hearing, he had received nothing in response to his requests.
The Decision portion of the document is completed with the date of January 6, 2009, and signed by an immigration official. The Decision determines that petitioner "is subject to removal through reinstatement of the prior order, in accordance with section 241(a)(5) of the Act." Publicly available records of the Sacramento County Sheriff indicate that petitioner was released from the jail on January 6, 2009.
At hearing, respondents' counsel represented that petitioner had made a credible claim that he will be subject to persecution if deported. Based on this claim, at the time of the hearing petitioner was being transported to San Francisco for further proceedings before an immigration official.
Respondents contend the court does not have jurisdiction in this matter because, they say, petitioner was not in federal custody at the time he filed his petition, but rather was serving out a state criminal sentence subject to a federal detainer. Respondents cite persuasive, but not controlling, authority for this proposition. Respondents also contend this court does not have jurisdiction to review challenges to reinstatements of expedited orders of removal, with citation to 8 U.S.C. §§ 1231(a)(5), 1252(b)(9), 1252(e), and Garcia de Rincon v. Dept. of Homeland Security, 539 F.3d 1133 (9th Cir. 2008). In this respect, respondents are correct. One of the statutes relied on by respondents, however, also appears to provide for review of certain challenges to removal orders by the appellate court. 8 U.S.C. §§ 1252(a)(2)(D), 1252(a)(5).
Accordingly, in the interest of justice, this matter will be transferred to the Ninth Circuit Court of Appeals for its consideration. 28 § U.S.C. 1631. The Clerk of the Court is directed to close this case.