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Owino v. Napolitano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 9, 2009

SYLVESTER OWINO, PETITIONER,
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENT.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Petitioner's Ex Parte Motion to Amend Order to Hold Immigration Bond Hearing (Doc. # 66).

BACKGROUND

Petitioner is a native and citizen of Kenya who was admitted to the United States on a student visa in 1998 (Doc. # 1). Petitioner was convicted of robbery in 2003 and was ordered removed by an Immigration Judge ("IJ") (Doc. # 1). The Board of Immigration Appeals ("BIA") affirmed that ruling (Doc. # 1). Petitioner has been in immigration detention since November 8, 2005 (Doc. # 1). On December 3, 2007, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this Court (Doc. #1). This Court denied his petition on August 6, 2008 (Doc. # 28). Petitioner appealed both his immigration case and this Court's decision to the Ninth Circuit (Doc. # 30). Owino v. Napolitano, __ F.3d __, No. 08-5632 (9th Cir. Aug. 4, 2009). Because Petitioner's CAT claim was remanded for further proceedings, the Ninth Circuit remanded his petition to this Court to determine whether detention is authorized under § 1226(a). Id. at 6-9. On remand, this Court ordered a hearing pursuant to Zavydas v. Davis, 533 U.S. 678, 801 (2001) and ordered Respondents to provide Petitioner a bond hearing before an Immigration Judge ("IJ") within 30 days (Doc. # 57).

A hearing was held before an IJ on October 5, 2009 (Doc. # 66). Owino appeared pro se and requested a continuance until October 26, 27, or 28, 2009 to allow his pro bono immigration counsel to prepare for the hearing (Doc. # 66). The IJ refused to continue the hearing beyond October 21, 2009, because he interpreted this Court's order to require the completion of the bond hearing within 30 days (Doc. # 66). Petitioner then filed a motion in this Court to amend or clarify the order requiring a bond hearing (Doc. # 66). Petitioner argues that his right to a procedurally fair bond hearing requires delaying the bond hearing to allow his pro bono attorney to adequately prepare and present his case (Doc. # 66). IT IS HEREBY ORDERED that Petitioner's Motion to Amend Order to Hold a Bond Hearing is GRANTED. IT IS FURTHER ORDERED that the IJ may grant reasonable and necessary continuances beyond this Court's original thirty-day deadline for good cause shown.

WILLIAM Q. HAYES United States District Judge

20091009

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