Free Supplemental Document - District Court of California - California

Case 3:07-cv-02267-WQH-POR

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Filed 06/12/2008

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KAREN P. HEWITT United States Attorney SAMUEL W. BETTWY Assistant U.S. Attorney California State Bar No. 94918 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7119 Attorneys for Federal Respondents UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MICHAEL CHERTOFF, Secretary of Homeland Security, et. al., Respondents. SYLVESTER OWINO , Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. 07cv2267-WQH (POR) A97 469 354 SUPPLEMENT TO GOVERNMENT'S COURT-ORDERED STATUS REPORT

As set forth in the Government's May 19, 2008 Status Report, Petitioner Owino's continued detention is due purely to his own series of actions and inactions. On May 29, 2008, Owino reported to this Court that delay in the issuance of his travel documents had been due to the failure of DHS to assist him in obtaining a police report. The undersigned requested Deportation Officer Eliana Hayes to contact the Kenyan consulate to learn firsthand what the Kenyan consulate required. In addition to determining that Petitioner's allegations were incorrect, Officer Hayes determined that the Kenyan consulate is willing to issue a travel document if Owino states that he is willing to return to Kenya. However, because Owino, though an attorney, recently notified the consulate that he has an appeal pending before the Ninth Circuit (even though his motion to stay removal was denied by the Ninth Circuit on June 5, 2007), and because Owino has expressed his unwillingness to return to Kenya pending those proceedings, the Kenyan consulate is unwilling to issue the travel document. The consulate will issue a travel document if Owino states that he is willing to return to Kenya. [See accompanying June 11, 2008 Declaration of Eliana Hayes.]

Case 3:07-cv-02267-WQH-POR

Document 20

Filed 06/12/2008

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In sum, the Ninth Circuit has ruled that Petitioner may be removed pending the petition for review proceedings,1/ and the Kenyan consulate has confirmed that the burden is now on Owino simply to agree to the issuance of a travel document for his repatriation. The Government requests that the Court's order contain a finding of fact for the benefit of the Kenyan Consulate that there is no pending stay of removal that would prevent the removal of Owino to Kenya. DATED: June 12, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Samuel W. Bettwy

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1/ Removal or other departure from the United States does not constitute abandonment of the appeal or otherwise render the appeal moot. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1171 (9th Cir. 2003)("Even if a petition for review is filed, IIRIRA permits the INS to remove aliens without delay after an unfavorable BIA decision, and it allows aliens to continue their cases from abroad."). 2 07cv2267-WQH SAMUEL W. BETTWY Assistant U.S. Attorney