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Owino v. Napolitano

August 4, 2009

SYLVESTER OWINO, SYLVESTER OTIENOOWINO, PETITIONER - APPELLANT,
v.
JANET NAPOLITANO,* SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; ERIC H. HOLDER JR., ATTORNEY GENERAL, ATTORNEY GENERAL; ROBIN BAKER, DIRECTOR OF SAN DIEGO FIELD OFFICE U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; JOHN A. GARZON OFFICER-IN-CHARGE, RESPONDENTS - APPELLEES.



Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding D.C. No. 3:07-cv-02267-WQHPOR

Per curiam.

* Janet Napolitano is substituted for her predecessor, Michael Chertoff, as Secretary of the Department of Homeland Security, pursuant to Fed. R. App. P. 43(c)(2).

OPINION

Argued and Submitted June 23, 2009 Seattle, Washington

Before: Betty B. Fletcher, Raymond C. Fisher and Ronald M. Gould, Circuit Judges.

Sylvester Owino, a native and citizen of Kenya, has been civilly detained by the Department of Homeland Security ("DHS") since November 7, 2005, during which time Owino has been challenging the government's efforts to remove him from the United States. Owino appeals the district court's denial of his habeas petition under 28 U.S.C. § 2241. He argues that his continuing detention has become illegal under Zadvydas v. Davis, 533 U.S. 678, 701 (2001), because there is "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," such that no civil detention statute can constitutionally authorize his detention. The district court disagreed. We have jurisdiction under 28 U.S.C. §§ 1291, 2241(a), and we reverse and remand.

In a separate appeal, filed concurrently herewith, Owino v. Holder, 06-74297, we have reviewed the Board of Immigration Appeals' ("BIA") final order of removal and more fully set forth the factual and procedural background of Owino's immigration law claims. In that related case, we have remanded Owino's claim for deferral of removal under the Convention Against Torture ("CAT") to the IJ on an open record, and that disposition bears significantly on our disposition of Owino's appeal in this case. Now that Owino is "[a]n alien whose case is being adjudicated before the agency for a second time -- after having fought his case in this court," Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 948 (9th Cir. 2008), his case is squarely governed by the rule of Casas-Castrillon. Thus, whether Owino's continued detention complies with Zadvydas depends on whether he "faces a significant likelihood of removal to [Kenya] once his judicial and administrative review process is complete." Casas-Castrillon, 535 F.3d at 948. We remand in this case so the district court can make that determination in the first instance. If the district court determines that Owino's detention is authorized, Casas-Castrillon also governs Owino's entitlement to a bond hearing. See id. at 951-52. Finally, because the record is insufficient to decide whether Owino's detention is authorized by statute, the district court must hold an evidentiary hearing and appoint counsel. See Chauncey v. Second Judicial Dist. Ct., 453 F.2d 389, 390 (9th Cir. 1971) (per curiam).

I. BACKGROUND

DHS began detaining Owino at the end of his three-year prison sentence for second degree robbery. DHS then began removal proceedings based on the robbery conviction, and Owino sought relief from removal under several theories. An immigration judge ("IJ") denied Owino's requests for relief and ordered him removed. The BIA dismissed Owino's appeal of that decision on August 2, 2006, leaving him subject to a final order of removal. Owino then filed a petition for review of the BIA's decision in this court. As noted above, we have now resolved that appeal in the related case, Owino v. Holder, 06-74297.

Owino requested a stay of removal from this court when he filed his petition for review in the related case. Although we denied Owino's request, thereby clearing the way for Owino's removal, DHS's efforts to remove Owino have so far been unsuccessful. The government attributes DHS's inability to remove Owino to his refusal to cooperate. Shortly after the BIA dismissed Owino's appeal in August 2006, an Immigration and Customs Enforcement ("ICE") officer presented Owino with travel forms so he could apply for permission to return to Kenya. Owino refused to sign the forms, in the mistaken belief that by signing them he would abandon any appeal of the BIA's decision. He contends that he eventually signed the appropriate travel forms once he learned through his counsel that cooperation with removal efforts would not abandon his appeal, but that ICE ignored his attempts to cooperate.

Owino filed his habeas petition in this case after 25 months of detention, alleging that his civil confinement had become unauthorized by statute under Zadvydas, 533 U.S. at 699-701, and requesting either release or a bond hearing.

While Owino's habeas petition was pending, the government filed a declaration from Deportation Officer Eliana Hayes. Hayes stated that she spoke to an officer at the Kenyan consulate about Owino's case. According to Hayes, the consulate first said that Kenya would not accept Owino "until there are no longer any appeals pending," but one day later changed course and advised that "Owino need only tell the consulate that he would like to return home and they would issue him a travel document regardless of what is pending." Owino nonetheless refuses to tell the consulate he would like to return to Kenya, because he says it would be a lie.

The district court denied Owino's habeas petition on the parties' filings without holding an evidentiary hearing. The court found that Owino's continued detention was authorized by 8 U.S.C. § 1231(a)(1)(C), which applies to aliens under a final order of removal who "fail[] or refuse[] to make timely application in good faith for travel or other documents necessary to the alien's departure." Id. The district court found that (a)(1)(C) applied because Owino initially refused to sign travel forms and later refused to express his willingness to repatriate, as the Kenyan consulate required. In addressing Owino's argument that his detention was invalid under Zadvydas, the district court applied our decision in Lema v. INS, 341 F.3d 853, 857 (9th Cir. 2003). Under Lema, an alien who has not cooperated with removal efforts and ...


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