Free Notice (Other) - District Court of California - California

Case 3:08-cv-00007-LAB-WMC

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JANET C. TUNG California State Bar No. 231682 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, CA 92101-5008 Telephone: (619) 234-8467 [email protected] Attorneys for CHEUK FUNG YONG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) CHEUK FUNG YONG, ) ) Petitioner, ) ) v. ) ) ) MICHAEL CHERTOFF, et al., ) ) ) Respondents. ) _____________________________________ ) TO: CASE NO. 08cv0007-LAB (WMC)

NOTICE OF RECENT NINTH CIRCUIT DECISION

KAREN P. HEWITT, UNITED STATES ATTORNEY SAMUEL BETTWY, ASSISTANT UNITED STATES ATTORNEY Petitioner, Cheuk Fung Yong, by and through counsel, Janet Tung and Federal Defenders of San

Diego, Inc., hereby notifies this Court and parties of the published opinion issued on July 25, 2008, by the Ninth Circuit Court of Appeals, in the case Casas-Castrillon v. DHS, ­ F.3d ­, 2008 WL 2902026 (9th Cir. July 25, 2008). Casas-Castrillon holds that detainees like Mr. Yong must be afforded "a hearing to establish whether releasing [him] would pose a danger to the community or a flight risk." Casas-Castrillon, 2008 WL 2902026, at *1. Casas-Castrillon, as the government has already acknowledged in cases from this district and others, requires provision of a bail hearing before an immigration judge. See, e.g., Arriola-Rivas v. Chertoff, No. 08-0509-JLR-MAT (W.D. Wash. July 28, 2008) (government's Notice of Recent Relevant Ninth Circuit

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Court of Appeals Decision), attached hereto as Appendix A. That case directly controls the procedural relief sought here. Like Mr. Casas, Mr. Yong was initially detained under color of 8 U.S.C. § 1226(c) (mandatory detention). Like Mr. Casas, he has pursued a petition for review in the Ninth Circuit and that court has issued a stay of removal. Like Mr. Casas, the statutory authority for detention has shifted to 8 U.S.C. § 1226(a). And under Casas-Castrillon, "§ 1226(a) must be construed as requiring the Attorney General to provide the alien with [a Tijani bail hearing]." Casas-Castrillon, 2008 WL 2902026, at *7 (emphasis in original). In fact, the government has taken the position in analogous cases that a bond hearing should be held. See, e.g., Appendix A (government "ask[ing] that the Court issue an order remanding Arriola-Rivas' case to an immigration judge for a bond hearing"). For the reasons stated above and in the petition, an order should issue directing the immigration court to provide Mr. Yong a bail hearing at which he must be ordered released "unless the government establishes that he is a flight risk or will be a danger to the community." Casas-Castrillon, 2008 WL 2902026, at *8. Because a bail hearing has the potential of providing Mr. Yong the relief he seeks, the Court need not decide the remaining issues in the petition pending the resolution of the hearing.

Respectfully submitted, Dated: August 12, 2008 /s/ JANET C. TUNG Federal Defenders of San Diego, Inc. Attorneys for CHEUK FUNG YONG Email: [email protected]

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHEUK FUNG YONG,
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) ) Petitioner, ) ) v. ) ) MICHAEL CHERTOFF, et al., ) ) ) Respondents. ) ___________________________________ ) I, the undersigned, say:

CASE NO. 08cv0007-LAB (WMC)

PROOF OF SERVICE

1) That I am over eighteen years of age, a resident of the County of San Diego, State of California, and not a party in the within action; 2) That my business address is 225 Broadway, Suite 900, San Diego, California, 92101;

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3) That I served the within NOTICE via ECF/NEF and caused to be delivered a true and correct copy of the above-mentioned document to: KAREN P. HEWITT ATTN: Civil Processing Unit 880 Front Street San Diego, CA 92101 and 4) That I caused to be delivered a courtesy copy to Chambers of the Honorable William Q. Hayes. I certify under the laws of the State of California that the foregoing is true and correct.

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Executed on 12 August 2008 at San Diego, California.
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/s/ JANET C. TUNG Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101 PH: (619) 234.9467 Email: [email protected]

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