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Owino v. Napolitano

December 9, 2009


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


The matter before the Court is Petitioner Sylvester Owino's Petition for Writ of Habeas Corpus. (Doc. # 1).


Petitioner is a native and citizen of Kenya who was admitted to the United States on a student visa in 1998. (Doc. # 1). In 2003, Petitioner was convicted of second degree robbery. (Doc. # 1). Upon the completion of Petitioner's sentence on November 8, 2005, he was transferred into the custody of the Department of Homeland Security ("DHS"). (Doc. # 1). Petitioner conceded removability before the Immigration Judge ("IJ"), but applied for asylum, withholding of removal, and Convention Against Torture ("CAT") relief. (Doc. # 1). The IJ denied his claims and the Board of Immigration Appeals ("BIA") affirmed that ruling. (Doc. # 1). Petitioner appealed to the Court of Appeals for the Ninth Circuit. (Doc. # 1).

On December 3, 2007, Petitioner initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1). On August 6, 2008, this Court issued an order denying the petition. (Doc. # 28). The Court held that Petitioner failed to meet his burden to show that there was no significant likelihood of removal in the reasonably foreseeable future because Petitioner had not made a full effort to secure travel documents, barring his claim under Lema v. INS, 341 F.3d 853, 856 (9th Cir. 2003).

On August 18, 2008, Petitioner appealed this Court's denial of his petition. (Doc. # 30). On August 4, 2009, the Court of Appeals for the Ninth Circuit entered judgment in this case reversing and remanding. Owino v. Napolitano, 575 F.3d 952 (9th Cir. 2009) (per curiam). The Ninth Circuit stated: "We need not decide whether the district court properly found Owino's detention authorized by § 1231, because in Owino's related appeal we have granted his petition for review and remanded his CAT claim for further proceedings before the agency." Id., at 955. The Ninth Circuit stated: "[W]hile administrative proceedings are pending on remand, Owino will not be subject to a final order of removal, so § 1231 cannot apply.... Instead, Owino is an alien whose case is being adjudicated before the agency for a second time-after having fought his case in this court.... [D]etention of an alien in this posture falls under 8 U.S.C. § 1226(a)." Id. (internal quotations and citations omitted). The Ninth Circuit remanded to this Court to "decide in the first instance whether Owino's detention is authorized by 8 U.S.C. § 1226(a)." Id. The Ninth Circuit held that "the question whether Owino faces a significant likelihood of removal cannot be resolved without an evidentiary hearing," and "urge[d] the district court to expedite the hearing." Id. at 956. The Ninth Circuit also ordered this Court to appoint counsel for Owino.

On August 12, 2009, this Court appointed Federal Defenders, Inc. as counsel for Petitioner and ordered briefing on the proceedings on remand. (Doc. # 46). Both parties submitted briefing on August 24, 2009 (Docs. # 49, 50) and Petitioner submitted a response to the government's briefing on August 31, 2009 (Doc. # 51). On September 1, 2009, the Court ordered supplemental briefing on whether there was any bar to this court ordering an immediate bond hearing before an IJ and on the proper scope of hearing pursuant to Zavydas v. Davis, 533 U.S. 678, 701 (2001) before this court. (Doc. # 52). The parties submitted their briefing on September 8, 2009. (Docs. # 53, 54).

Petitioner claimed that the Zavydas hearing must determine whether he will "obtain relief from removal on remand" of his CAT claim to the IJ and whether Kenya will accept repatriation of Petitioner if he loses his CAT claim. (Doc. # 53). Petitioner further claimed that this Court was required by the mandate from the Ninth Circuit to conduct a Zavydas hearing before ordering an IJ to hold a bond hearing. (Doc. # 53). Respondents claimed that the Zavydas hearing should be "limited to issues such as whether there is a repatriation agreement between the United States and an alien's home country." (Doc. # 54).

The Court ruled that the hearing would address whether Petitioner "faces a significant likelihood of removal to [Kenya] once his judicial and administrative review process is complete." (Doc. # 57). See Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942, 948 (9th Cir. 2008). The Court declined to hear evidence regarding the merits of Petitioner's CAT claim, because Diouf v. Mukasey "require[d] the alien to show that he would be unremovable even if the government defeated his petition for review." 542 F.3d 1222, 1233 (9th Cir. 2008) (emphasis added) (citing Prieto-Romero v. Clark, 542 F.3d 1053, 1063 (9th Cir. 2008)). The Court held that further detention pursuant to 8 U.S.C. § 1226(a) was unauthorized unless Petitioner received a bond hearing and ordered a bond hearing within thirty days of the date of the order. (Doc. # 57). Petitioner filed a motion to amend the order to allow reasonable continuances of the bond hearing beyond thirty days to allow his pro bono immigration counsel to prepare for the hearing. (Doc. # 66). The Court granted that motion on October 9, 2009. (Doc. # 68).

The Court held the Zavydas hearing on September 29, 2009. At the request of the parties, the Court also allowed supplemental briefing after the hearing. See Doc. # 62. Briefing was completed on October 23, 2009. Id. At the hearing, Petitioner presented his own testimony and entered several documents into evidence relating to the repatriation process and conditions in Kenya. See Docs. # 63, 64. Respondent presented the testimony of two witnesses, Eliana Hayes, the deportation officer in charge of Petitioner's case, and Marcy McCormick, the deportation officer in charge of ICE's nationwide program to repatriate Kenyans. (Docs. # 61, 63.)

Petitioner had a bond hearing before an IJ on November 2, 2009. (Doc. # 75 at 1). Id. On December 4, 2009, the IJ issued a written decision denying bond. Id.


(1) Petitioner's Testimony

Petitioner no longer has family in Kenya, and he does not own any property in Kenya. (Doc. # 67 at 28-29).*fn1 Petitioner stated Kenya has no system of social welfare. Id. Petitioner refused to sign an application for travel documents in August of 2006 because he mistakenly believed that doing so would waive his right to appeal his immigration case. Id. at 30. The ICE officer did not explain that signing the travel forms would not waive Petitioner's right to appeal his immigration case. Id. After his initial refusal to sign the documents in August of 2006, ICE did not contact him again to sign the documents until December of 2007, well after his stay of deportation was lifted in February of 2007. Id. at 31. When an ICE officer approached him a second time with an application for travel documents, Petitioner asked the officer to allow him to consult with his attorney before signing the papers. Id. at 31. Petitioner was then ...

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