Free Reply to Opposition - District Court of California - California

Case 4:07-cv-04953-SBA

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Filed 09/26/2007

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JAMES TODD BENNETT Attorney of Law P. O. Box 742 El Cerrito, CA 94530 Telephone: (510) 232-6559 California State Bar No. 113009 Attorney for Petitioner GUMARO GARCIA GARNICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) ) ) Petitioner, ) ) v. ) ) MICHAEL CHERTOFF, Secretary,) Department of Homeland) Security, NANCY ALCANTAR, Field) Office Director, Immigration) and Customs Enforcement, and) PETER KEISLER, Acting Attorney) ) General of the United States, ) ) Respondents. ) / GUMARO GARCIA GARNICA, I

CASE NO:

C07-4953 SBA

PETITIONER'S REPLY TO RESPONDENTS' OPPOSITION TO BOTH PETITION FOR WRIT OF HABEAS CORPUS AND REQUEST FOR A TEMPORARY RESTRAINING ORDER Date: Time: 9/26/07 1:00 p.m.

INTRODUCTION Gumaro Garcia Garnica, petitioner herein, hereby replies to

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the filing by respondents Michael Chertoff, Nancy Alcantar and
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Peter
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Keisler

(hereinafter

"respondents,"

collectively,

and

individually by surname) entitled "Respondents' Opposition to

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Both

Petition

for

Writ

of

Habeas

Corpus

and

Request

for

a

Temporary opposition)

Restraining filed by

Order" e-filing on

(hereinafter September 26,

"respondents' 2007. The

opposition is restricted to two jurisdictional issues only as grounds for denying the motion for stay and a temporary

restraining order, and no other grounds.

Since the respondents

are in error as to the District Court's jurisdiction over the habeas petition in this action under Singh v. Gonzales __ F3d __ (9th Cir. 8/24/07, Case No. 05-16005) respondents concede that petitioner is otherwise entitled to a stay and temporary

restraining order under Maharaj v. Ashcroft 295 F3d 963, 964-5 (9th Cir. 2002) by failing to contest the issue. Accordingly,

petitioner respectfully requests that a stay order and temporary restraining order issue. II RESPONDENTS' OPPOSITION Respondents argue that: 1) the Real ID Act of 2005

eliminated the habeas jurisdiction of the District Courts over final orders of removal under 8 USC, Sections 1252(a)(5) and 1252(b)(9) (Respondents' Opposition, 2-3); and 2) the holding in Singh does not apply since: a) only the "agency" (presumably the Department of Homeland Security, Immigration and Customs

Enforcement -- hereinafter DHS/ICE) has the authority to extend grants of voluntary departure and b) there is no judicial review over "requests for voluntary departure" (Id, 3-4). As set forth

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below, respondents confuse a "request for voluntary departure" with the loss of the right to exercise voluntary departure due to ineffective assistance of counsel. Respondents further

misread their own regulation, 8 CFR, Section 1240.26(f) upon which they apparently rely. Finally, the very fact that the

right to exercise voluntary departure was lost as a result of the constitutional deprivation of effective assistance requires that this court fashion the same type of remedy set forth in Singh, trigger thereby. III REPLY ARGUMENT A. Incorporation by Reference and Reply to "Opposition to Writ of Habeas Corpus" incorporates by reference his "Petitioner's a remand the to the Board 39 days of Immigration voluntary Appeals to relost

remaining

of

departure

Petitioner
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Points And Authorities In Support Of Motion For Emergency Stay Of
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Execution

And

Application

For

Temporary

Stay

Order

Re

Petition For Writ Of Habeas Corpus Or, In The Alternative, Order To
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Show

Cause"

(hereinafter

"petitioner's

points

and

authorities") as if fully set forth herein in response to the two aforementioned jurisdictional arguments, and in response to
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that
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portion

of

respondent's

opposition

directed

to

the

dismissal of the habeas petition.

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B.
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1

The District Court Has Habeas Jurisdiction Under Singh v. Gonzales first assert a blanket bar to habeas

Respondents

jurisdiction under RIDA at pages 2 through 3 and, then when confronted arguments with which the fail holding to in Singh, the raise various of straw the

address

applicability

precedent to the present proceeding.

The issue, in a nutshell,

is that petitioner suffered ineffective assistance of counsel due to the post final order failure to assert on judicial review the erroneous holding of the BIA that the voluntary departure period had lapsed and that the remedy, a remand to retrigger the remaining voluntary departure period, does not result in review of the final order of removal. The facts of the case squarely

fall within the narrow exception carved out by the Singh court. Respondent's first raise a non-issue, the filing of an

administrative application with DHS/ICE for reinstatement of the order of voluntary departure. The filing was done at the behest

of DHS/ICE and respondents as a means of resolving the matter by settlement. In fact, DHS/ICE has authority to extend, but no

authority to issue an order to reinstate voluntary departure under 8 CFR, Section 1240.26(f). Any such filing is, at best,

an unauthorized exercise in futility1, if not absurdity. Second, it is true that the federal courts have no

authority to review denials of voluntary departure under 8 USC,

And in any event, DHS/ICE has yet to serve a written response on counsel.
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Section 1229c(f). redress for the

Petitioner seeks no such review. post-decisional loss of a granted

He seeks right to

voluntary departure due to ineffective assistance of counsel, clearly a matter within the parameters of Singh. Third, it is true that the federal courts cannot themselves reinstate voluntary departure. However, that is precisely why an order of remand to

the remedy requested herein is necessary:

the BIA to re-trigger the remaining voluntary departure period lost through ineffective assistance of counsel, a loss which respondents do not contest and therefore concede. IV CONCLUSION Based on the foregoing and petitioner's points and

authorities, the District Court has jurisdiction and respondents concede the Maharaj hardship issues by not addressing them. It

is therefore respectfully requested that an order of stay and temporary restraining order issue.

Dated:
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September 26, 2007 JAMES TODD BENNETT Attorney for Petitioner GUMARO GARCIA GARNICA

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