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Singh v. Chertoff

April 23, 2009

GURDEV SINGH, PLAINTIFF,
v.
MICHAEL CHERTOFF, ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner Gurdev Singh ("Petitioner") has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the Court DENIES the Amended Petition without prejudice.

I. BACKGROUND

Petitioner, a member of the Sikh minority, was born in Kapurthala, Punjab, India on November 28, 1956. (Am. Pet. For Writ of Habeas Corpus ("Am. Pet.") 3.) Petitioner immigrated to the United States on June 26, 1991, and has lived here since with his wife and two children. (Id.) Under the sponsorship of his United States citizen sister, Petitioner was admitted as a lawful permanent resident. (Id.)

In 1996, Petitioner was convicted of disturbing the peace and sentenced to 30 days in jail and 24 months of probation. (Govt. Ret. In Opp. to Pet. for Writ of Habeas Corpus, Ex. 4.) In 1997, Petitioner was convicted of a felony DUI with prior convictions and sentenced to 365 days in prison and five years probation. (Id. at Ex. 7.) In 2002, Petitioner was convicted of willful infliction of corporal injury under Cal. Penal Code § 273.5(a).*fn1 In 2005, Petitioner was convicted of felony DUI with prior convictions and sentenced to two years in prison. (Id. at Ex. 6.)

On October 24, 2006, the Department of Homeland Security commenced removal proceedings against Petitioner. (Id. at Ex. 24.) On January 24, 2007, an immigration judge ("IJ") ordered Petitioner removed to India. (Id. at Ex. 45.) Petitioner applied for cancellation of removal which the IJ denied on the basis that Petitioner had been convicted of a crime of domestic violence. On March 30, 2007, the Board of Immigration Appeals ("BIA") denied Petitioner's appeal. (Id. at Ex. 54.)

On April 25, 2007, Petitioner filed a petition for review with the Ninth Circuit, which remains pending. The Court of Appeals stayed Petitioner's removal, which the Government did not oppose.

On March 12, 2008, Petitioner initially filed a Petition for a Writ of Habeas Corpus with this Court. On June 6, 2008 the Court held a hearing on the Petition, and announced its intention to file a written order. On August 13, 2008, however, the Government filed an Ex Parte Motion to Stay the Proceedings [Docket No. 17] based on recent Ninth Circuit case law holding that a detainee with a petition for review pending and a stay of removal is entitled to an individualized bond determination. See Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). The Court granted the Government's Ex Parte Motion and ordered a status conference in sixty days.

Subsequently, an IJ held a bond hearing for Petitioner. The IJ denied bond, finding that Petitioner was "[a] danger and a flight risk." (Govt. Ret. to Am. Pet., Ex. 73.) At a status conference on December 2, 2008, the Court granted leave to Petitioner to file an amended petition.

On December 12, 2008, Petitioner filed an Amended Petition for a Writ of Habeas Corpus. On December 19, 2008, the Government filed a Response to Petitioner's Amended Petition. On January 9, 2009, Petitioner filed a Supplemental Brief in support of his Amended Petition. On January 23, 2009, the Government filed a Return to Petitioner's Amended Petition. On January 30, 2009, Petitioner filed a Reply to the Government's Return.

On February 4, 2009, the Court held oral argument on the Amended Petition. The Court asked the Government to file the IJ's Bond Memorandum, which it did on February 5, 2009. On February 10, 2009, Petitioner filed Objections to Consideration of the Bond Memorandum. On March 3, 2009, Petitioner filed a recent decision by Judge Sabraw in this district in support of his Petition.

II. DISCUSSION

Petitioner makes two alternative arguments in support of his release. First, Petitioner contends that the bond hearing conducted by the IJ violated his procedural due process rights. The Court concludes that, as a prudential matter, Petitioner must first exhaust his claims with the Board of Immigration Appeals ("BIA"). Even if the Court did not require Petitioner to exhaust, it nonetheless lacks jurisdiction over some of Petitioner's claims because they involve "discretionary judgments" of the Attorney General. Petitioner's non-discretionary claims fail on the merits.

Second, Petitioner alternatively argues that his continued detention violates his substantive due process rights because his removal is not significantly likely in the reasonably foreseeable future. The Court also rejects Petitioner's substantive due process claim because he fails to offer "good reason" that there ...


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