United States District Court, N.D. California
ORDER ON UNITED STATES' MOTION TO REVOKE BOND AND PETITIONER'S MOTION TO STAY CERTIFICATION OF EXTRADITION
DONNA M. RYU, Magistrate Judge.
The United States filed a motion to revoke the bond of Petitioner Eustolio Gonzalez Gonzalez. Gonzalez responded by filing a motion to stay certification of his extradition. [Docket Nos. 64, 67.] The court conducted a hearing on March 12, 2015 and ordered the parties to submit further briefing addressing the court's authority to decide whether Mr. Gonzalez should be detained pending extradition. The parties timely filed the requested briefing. [Docket Nos. 72 (Gov't's Supplemental Br.), 73.] For the following reasons, the court denies the motion to stay and orders the parties to submit supplemental briefing regarding Mr. Gonzalez's detention.
I. Procedural Background
In these proceedings, the government of Mexico seeks the extradition of Eustolio Gonzalez Gonzalez, an eighty-five year old legal permanent resident of the United States. On March 5, 2009, Mexican authorities charged him with the attempted homicide of two individuals in an incident that allegedly took place on March 6, 2006 in Ziracuaretiro in the State of Michoacan.
On June 26, 2009, the United States filed a complaint for provisional arrest upon request of the Mexican government, and pursuant to the extradition treaty in force between the two countries, Proclamation on Extradition, U.S.-Mex., Jan. 25, 1980, 31 U.S.T. 5059 ("Treaty"). [Docket No. 1.] Mr. Gonzalez made his initial appearance on September 4, 2009. [Docket No. 3.] On September 15, 2009, the court released him from custody subject to a $250, 000 bond and other release conditions, including location monitoring. [Docket No. 13.] Mr. Gonzalez has remained out on bond and under the supervision of the Pretrial Services Office.
Mr. Gonzalez subsequently filed a motion arguing that the complaint for provisional arrest should be dismissed under Article 7 of the Treaty. He argued that the lapse of time between the underlying charged conduct, which occurred in 2006, and the filing of the 2009 extradition complaint violated the Speedy Trial Clause of the Sixth Amendment. [Docket No. 19.] The Honorable Saundra B. Armstrong denied the motion on October 31, 2011, and reassigned the matter to this court to conduct the extradition proceedings. [Docket Nos. 38, 39.]
On April 10, 2012, the undersigned certified that there was sufficient evidence to sustain the underlying charge under the governing extradition treaty and certified that finding to the Secretary of State for a final extradition decision pursuant to 18 U.S.C. § 3184. [Docket No. 53.] Before the Secretary could make its final decision, Gonzalez challenged the certification order by petition for writ of habeas corpus. See Gonzalez v. O'Keefe, No. 12-cv-02681 LHK (N.D. Cal. filed May 24, 2012). The habeas case was assigned to the Honorable Lucy H. Koh. On November 12, 2014, Judge Koh issued an order denying the petition and denying a certificate of appealability. Mr. Gonzalez filed a notice of appeal on December 8, 2014 and filed a request for a certificate of appealability in the Ninth Circuit Court of Appeals on January 22, 2015. The Ninth Circuit has not yet ruled on the pending request.
On February 20, 2015, the United States filed a motion to revoke Mr. Gonzalez's bond so that he may be surrendered to Mexican authorities pursuant to the final extradition decision of the Secretary of State. [Docket No. 64.] In response, Mr. Gonzalez moves to stay certification of extradition pending resolution of his appeal to the Ninth Circuit Court of Appeals from the denial of his habeas petition. [Docket No. 67.] The government opposes the motion to stay. [Docket No. 68.]
A. Motion to Stay
1. Legal Standard
Courts generally consider four factors when determining whether to grant a stay pending the outcome of an appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Nken v. Holder,
556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)) (internal quotation marks omitted). The first two facts of this test are the most critical. Nken, 556 U.S. at 434. The Ninth Circuit has held that first factor of the Nken test does not require a demonstration that success on appeal is more likely than not; rather, the moving party need only show that his or her appeal "raises serious legal questions, or has a reasonable probability or fair prospect of success." Leiva-Perez v. Holder, ...