Free Reply - District Court of California - California

Case 3:08-cv-00464-BTM-JMA

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Filed 08/20/2008

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1 JAMES FIFE

California State Bar No. 237620
2 FEDERAL DEFENDERS OF SAN DIEGO, INC.

225 Broadway, Suite 900
3 San Diego, CA 92101-5008

Telephone: (619) 234-8467
4 [email protected] 5 Attorneys for GURDEV SINGH 6 7 8 9 10 11 12 13 14 15 16 17 18 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. BARRY T. MOSKOWITZ) GURDEV SINGH, Petitioner, v. MICHAEL CHERTOFF, et al., Respondents. Case No. 08CV0464-BTM (JMA)

COURT-ORDERED REPLY TO EX PARTE REQUEST FOR STAY

Pending a ruling on the instant Petition, on August 13, 2008, Respondents filed an ex parte request for

20 a stay of 60 days "to permit Petitioner to request and obtain a bond review before an Immigration Judge" 21 pursuant to recent Ninth Circuit decisions. Government's ex parte Request to Hold Case in Abeyance And 22

Order Status Report ("Request") at 1. On August 15, 2008, this Court ordered Petitioner to respond to the
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request by August 22, 2008. Respondents argue that a detained deportee in Petitioner's circumstances is entitled to a bail hearing before the immigration judge ("IJ") under Casas-Castrillon, ___ F.3d ___, 2008 WL 2902026 (9th Cir. July 25, 2008), and Prieto-Romero, ___ F.3d ___, 2008 WL 2853396 (9th Cir. July 25, 2008). Under these

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Case 3:08-cv-00464-BTM-JMA

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1 decisions, deportees who were originally mandatorily detained under 8 U.S.C. § 1226(c) convert their 2

detention authority to § 1226(a) once a petition for review is filed and a stay of the removal order is in effect.
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See Casas-Castrillon, 2008 WL 2902026, at *4. As a result, formerly mandatorily detained deportees are

5 entitled to bond hearings at which the Government bears the burden to prove ineligibility for release. See id. 6 7

at *7. ("To avoid the constitutional concerns attending such an unreviewed detention, the Ninth Circuit held that § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing.")

8 9 (citing Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005)). Respondents ask this Court to stay the current 10 case "to allow Petitioner to seek and obtain bond [sic] review before the Immigration Court." Request at 2. 11 12 13

While reserving their rights and defenses during the stay, Request at 2, Respondents ask that the case be held in abeyance. Petitioner maintains that he is entitled to release on his habeas corpus petition, as he faces

14 prolonged, past and future detention, despite the substantive nature of his challenge to removal. However, 15 16

in the interests of resolving this case expeditiously, Petitioner­with the same reservation of his rights and previously asserted arguments­agrees that this Court should stay the current proceedings to permit a Casas

17 18 hearing before the IJ. 19 20 21 22 23 24 Dated: August 19, 2008 25 26 27 28

Petitioner likewise agrees that this Court should hold a status hearing on this case at the end of the 60 days to assess the need for further proceedings.

Respectfully submitted, s/ James Fife JAMES FIFE Federal Defenders of San Diego, Inc. Attorneys for Petitioner Singh [email protected]

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing is true and accurate to the best information and belief,

3 and that a copy of the foregoing document has been caused to be delivered this day upon: 4 5 6 7

Courtesy Copy to Chambers Copy to Assistant U.S. Attorney via ECF NEF Copy to Petitioner Dated: August 20, 2008 /s/ JAMES FIFE Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

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