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Gilberto G. Rossatty v. Janet Napolitano

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 14, 2011

GILBERTO G. ROSSATTY,
PETITIONER,
v.
JANET NAPOLITANO, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER RE PETITION FOR HABEAS CORPUS

Petitioner seeks two forms of habeas relief: either (1) an order of release under Zadvydas v. Davis, 533 U.S. 678 (2001), or (2) an order directing Respondents to afford him a bond hearing under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). In his traverse, Petitioner properly concedes that Zadvydas-type relief is not available because Respondents have obtained travel documents and are prepared to immediately remove Petitioner once judicial proceedings are complete. See Prieto-Romero v. Clark, 534 F.3d 1053, 1063 (9th Cir. 2008).

Petitioner is also not entitled to a bond hearing under Diouf. Aliens who face a prolonged detention under 8 U.S.C. § 1231(a)(6) while challenging a removal order are entitled to a bond hearing unless removal is imminent. Diouf v. Napolitano, 634 F.3d 1081, 1091-1092 (9th Cir. 2011).*fn1

On July 8, 2011, the Ninth Circuit denied in part and dismissed in part Petitioner's remaining petitions for review and held that the temporary stay of removal will terminate upon issuance of the mandate. Rossaty v. Holder, 11-70316, 11-71146 (9th Cir. July 8, 2011). The court summarily denied the consolidated petitions in part "because the questions raised are so insubstantial as not to require further argument." Id.

Docket entries indicate that Petitioner filed motions for reconsideration on July 25, 2011, August 18, 2011, and August 19, 2011. A mandate will issue within seven days of an order denying Petitioner's motions for reconsideration. Ninth Cir. R. 41-2. At that point, Respondents can immediately remove Petitioner.

Under these circumstances, the Court concludes that removal is imminent. The Ninth Circuit disfavors motions for reconsideration. Cir. Advisory Comm. Note to Rule 27-10. The court summarily denied Petitioner's remaining petitions and provided no indication that his claims raised close questions. Petitioner, in turn, does not assert that there is any likelihood that the Ninth Circuit will reconsider its order. See Dock. #15. Accordingly, Petitioner is not entitled to a bond hearing. Petitioner's habeas petition is DENIED.

IT IS SO ORDERED.


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