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Perales v. Napolitano

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


January 21, 2010

AMALIA HERNANDEZ PERALES, PETITIONER,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; TIMOTHY AIKEN, FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT; AND ERIC HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS.

The opinion of the court was delivered by: Susan Illston United States District Judge

STIPULATION TO HOLD CASE IN ABEYANCE; AND [PROPOSED] ORDER

Petitioner, by and through her attorney of record, and Respondents, by and through their attorneys of record, hereby stipulate, subject to approval of the Court, to hold this case in abeyance for six months in light of the following:

(1) The petitioner filed a habeas petition on December 24, 2009, alleging that she received 23 ineffective assistance of counsel from two of her former attorneys following the issuance of two orders of the Board of Immigration Appeals (BIA).

(2) A primary issue in this case is whether this Court should require the petitioner to exhaust her administrative remedies by presenting her ineffective assistance of counsel claims to the BIA via the filing a motion to reopen.

(3) In Rajinder Singh v. Napolitano, Appeal No. 07-16988, the parties expect the United States Court of Appeals for the Ninth Circuit to resolve the issue of whether a district court may properly require exhaustion of administrative remedies in cases where, as here, the alleged ineffective assistance of counsel occurred after the entry of the alien's final removal order and where, as here, the petitioner seeks only re-issuance of the BIA's order or orders.

(4) The Ninth Circuit held oral argument in Rajinder Singh on January 13, 2009, but has not yet issued an opinion. On August 11, 2009, the Ninth Circuit issued the following order on August 11, 2009:

The case is remanded to the Board of Immigration Appeals for the limited purpose of ruling upon whether the Board had jurisdiction to hear Singh's ineffective assistance of counsel claims and what effect, if any, the Attorney General's recent opinion in In re Compean, 25 I & N Dec. 1, 3 (A.G. 2009), has on this case. The Board shall advise the court of any action or decision.

Singh v. Napolitano, 577 F.3d 988 (9th Cir. 2009) (Order).

(5) The BIA has asked the parties in the Rajinder Singh case to file briefs on the issue that has been remanded to it by the Ninth Circuit and those briefs are due on January 27, 2010.

(6) The parties believe it would be prudent to await the BIA's response to the Ninth Circuit's Order and the Ninth Circuit's decision in Rajinder Singh before filing any further briefing in the above-entitled matter and, accordingly, ask this Court to hold this case in abeyance for a period of six months.

Date: January 19, 2010 Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney EDWARD A. OLSEN Assistant United States Attorney Attorneys for Respondents

Date: January 19, 2010 JAMES TODD BENNETT Attorney for Petitioner

[PROPOSED] ORDER

Pursuant to stipulation, IT IS SO ORDERED that:

(1) This case will be held in abeyance of period of six months.

(2) If and when the United States Court of Appeals for the Ninth Circuit issues a decision in Rajinder Singh v. Napolitano, Appeal No. 07-16988, the parties shall promptly notify the Court;

(3) The parties shall submit a status report on June 18, 2010.

20100121

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