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Singh v. Chertoff

September 27, 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 GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO AMEND THE JUDGMENT

Petitioner Gurdev Singh ("Petitioner" or "Singh") moves to amend the Court's Order denying his Amended Petition for a Writ of Habeas Corpus ("Amended Petition") pursuant to Federal Rule of Civil Procedure 59(e). For the reasons discussed below, Petitioner's Motion to Amend the Judgment is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

The Court set out the background of this case in detail in its April 23, 2009 Order Denying Petitioner's Amended Petition ("Order"). The Court incorporates by reference the facts as set forth there and only briefly notes the procedural history of the case here.

On January 24, 2007, an Immigration Judge ("IJ") ordered Petitioner removed to his native India. On March 30, 2007, the Board of Immigration Appeals ("BIA") denied Petitioner's Appeal and entered a final order of removal. 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 until it reached a decision on his petition for review.

Petitioner is currently detained. On March 12, 2008, Petitioner filed a Petition for a Writ of Habeas Corpus with this Court, arguing that he was entitled an individualized bond determination. The Government subsequently afforded Petitioner a bond hearing before an IJ. The IJ denied bond. On December 2, 2008, the Court granted Petitioner leave to amend his Petition.

On December 12, 2008, Petitioner filed his Amended Petition. The Amended Petition first argued that the bond hearing before the IJ violated Petitioner's procedural due process rights. Second, the Amended Petition argued that Petitioner's continued detention violated his substantive due process rights under Zadvydas v. Davis, 533 U.S. 678 (2001) because removal was not significantly likely in the reasonably forseeable future.

On April 23, 2009, the Court issued its Order denying the Amended Petition. First, the Court found that, as prudential matter, Petitioner was required to initially exhaust his procedural due process claims with the BIA. Second, the Court determined that it lacked jurisdiction to consider any of Petitioner's claims relating to discretionary judgments of the IJ. Third, the Court held that Petitioner's non-discretionary structural claims failed on the merits. Finally, the Court determined that no good reason existed to find that Petitioner's removal in the reasonably forseeable future was not significantly likely.

II. STANDARD

A district court may amend its judgment under Federal Rule of Civil Procedure 59(e) if it "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) (quoting School Dist. No. 1J, Multnomah Cty., Or. v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). District courts have broad discretion when deciding whether to grant a Rule 59(e) motion. See Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1115 (C.D. Cal. 2005) (citations omitted). When evaluating a Rule 59(e) motion, a court should consider both the interest in finality of judgments as well as the need to reach just decisions based on all the facts. Id.

III. DISCUSSION

Petitioner moves to amend the Court's judgment based on an intervening change in law. Petitioner agues that a recent Ninth Circuit decision, Acala v. Holder, 563 F.3d 1009 (9th Cir. 2009), rendered unavailable the avenue of relief suggested by the Court in its Order, requiring it to reconsider its decision.

Alcala involved a Mexican citizen who entered the United States unlawfully and applied for asylum. Id. at 1011. Later, he returned to Mexico and attempted to re-enter the United States using a fraudulent certificate of legal permanent residency. Id. He was placed in expedited removal proceedings and removed to Mexico. Id. Alcala again entered the country illegally. Id. In the meantime, his asylum application was denied and he was served with a Notice to Appear, which did not mention his expedited removal or second and third unlawful reentries. Id. At Alcala's merits hearing, the government sought to dismiss the removal proceeding so that it might reinstate his expedited removal order. Id. at 1012. The IJ granted the government's motion to dismiss. Id. Alcala appealed the IJ's decision to the BIA, which denied his appeal. Id. Alcala appealed the BIA's decision to the Ninth Circuit Court of Appeals. Id. Alcala also filed a motion to reopen with the BIA, which was denied. Id. Alcala then filed a petition for review of that decision with the Court of Appeals as well. Id. at 1013.

The Court of Appeals dismissed both petitions for review, finding that it lacked jurisdiction over them. Specifically, the Court held, "[t]his court has jurisdiction under 8 U.S.C. ยง 1252(a)(1)(D) over petitions for review which raise constitutional claims or questions of law if, and only if, there is a final order of removal." Id. at 1015 (emphasis in original). Because Alcala appealed orders issued in a ...


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