Free Memorandum in Opposition - District Court of California - California

Case 4:07-cv-04953-SBA

Document 6

Filed 09/26/2007

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1 SCOTT N. SCHOOLS, SC SBN 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division ILA C. DEISS, NY SBN 3052909 4 Assistant United States Attorney 5 6 7 Attorneys for Respondents 8 9 10 11 12 GUMARO GARCIA GARNICA, 13 14 v. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4953 SBA 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

15 MICHAEL CHERTOFF, Secretary, Department of Homeland Security; 16 NANCY ALCANTAR, Field Office Director, Immigration and Customs Enforcement, and 17 PETER KEISLER, Acting Attorney General of the United States, 18 Respondents. 19 20

RESPONDENTS' REPLY IN OPPOSITION TO BOTH PETITION FOR WRIT OF HABEAS CORPUS AND REQUEST FOR A TEMPORARY RESTRAINING ORDER

Respondents hereby reply to Petitioner's Point and Authorities in support of his request for a

21 TRO and petition for a writ of habeas corpus. 22 Petitioner's calculations are confusing at best. In any event Petitioner's ineffective assistance

23 of counsel claims appears to be that former counsel failed to challenge at the Ninth Circuit Court 24 of Appeals the BIA's determination that Petitioner's voluntary departure period expired. See 25 Petitioner's Point and Authorities at 2-3. As an initial matter, there is no evidence that Petitioner 26 has requested a stay of removal at the Ninth Circuit or has moved to recall the mandate that issued 27 from the Ninth Circuit in January 2007 in Petition for Review No. 05-75751. Nor has Petitioner 28 shown that he asked the Board of Immigration Appeals (where he asks this Court to remand the Respondents' Reply C-07-4953 SBA

Case 4:07-cv-04953-SBA

Document 6

Filed 09/26/2007

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1 matter) for reinstatement of voluntary departure. 2 Secondly, as Petitioner properly noted, in order for there to be ineffective assistance of

3 counsel, Petitioner must show prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th 4 Cir. 2003) (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate 5 prejudice). Here, even had prior counsel properly raised before the Ninth Circuit all of the 6 arguments Petitioner is seeking to raise now, the Ninth Circuit would not have jurisdiction to 7 review any requests for reinstatement voluntary departure. See Garcia v. Ashcroft, 368 F.3d 1157, 8 1159 (9th Cir. 2004). 9 Petitioner relies on Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004), where the Ninth Circuit

10 found that an alien's motion to stay removal in the Ninth Circuit may be construed as including a 11 timely motion to stay voluntary departure if brought within voluntary removal period. Here, there 12 was no motion to stay voluntary departure and the voluntary departure period had expired. 13 Moreover, even had a motion been timely filed that would have tolled the voluntary departure 14 period during review before the Ninth Circuit, that would have lapsed in January 2007, when the 15 mandate issued. See Ninth Circuit General Order 6.4(c). 16 Accordingly, the Court has no jurisdiction over Petitioner's requests and even if the Court

17 were to find jurisdiction, Petitioner has been unable to show prejudice due to any ineffective 18 assistance of prior counsel. 19 20 Dated: September 26, 2007 21 22 23 24 25 26 27 28 Respondents' Reply C-07-4953 SBA /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Respondents Respectfully submitted, SCOTT N. SCHOOLS United States Attorney