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Cruz v. Napolitano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 9, 2010

NOWEL QUITO DELA CRUZ, PETITIONER,
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER (1) GRANTING PETITIONER'S REQUEST FOR APPOINTMENT OF COUNSEL AND (2) REQUIRING RESPONSE FROM GOVERNMENT

Petitioner, an Immigration and Naturalization Service detainee, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, together with a motion for appointment of counsel.

Pursuant to 28 U.S.C. 3006A(a)(2), the district court may appoint counsel for financially eligible petitioners seeking relief under 28 U.S.C. § 2241 when the interests of justice so require. The court considers whether there is a likelihood of success on the merits of the petition and whether the unrepresented petitioner has the ability to articulate his claims in light of the complexity of the issues presented. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

The Supreme Court has held that a post-removal detention exceeding six months is presumptively unreasonable. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Petitioner's claim that he has been detained for more than eighteen months following a removability determination, if true, triggers the Zadvydas presumption, which indicates a strong likelihood of success on the merits of a complex petition. See United States v. Ahumada-Aguilar, 295 F.3d 943, 950 (9th Cir. 2002) ("[w]ith only a small degree of hyperbole, the immigration laws have been deemed second only to the Internal revenue Code in complexity.") Accordingly, the Court grants Petitioner's motion to appoint counsel and appoints Federal Defenders, Inc. as Petitioner's counsel in this case.

The United States Attorney shall file and serve a response to the petition no later than July 9, 2010. The Government's response shall include all documents relevant to the issues raised in the petition. Should Petitioner wish to reply to the Government's response, she shall do so no later than August 9, 2010.

IT IS SO ORDERED.

20100609

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