Free Response in Support - District Court of California - California

Case 4:07-cv-04953-SBA

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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 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR EMERGENCY STAY OF EXECUTION AND APPLICATION FOR TEMPORARY STAY ORDER RE PETITION FOR WRIT OF HABEAS CORPUS OR, IN THE ALTERNATIVE, ORDER TO SHOW CAUSE Date: Time: 9/26/07 11:00 a.m.

INTRODUCTION Gumaro Garcia submits his Garnica, the petitioner points stay and of herein, hereby in and

22

respectfully
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following for

authorities execution

support
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of

motion

emergency

application for temporary stay order (hereinafter stay motion)

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submitted in conjunction with his petition for writ of habeas corpus or, in the alternative, order to show cause (hereinafter habeas petition) both of which were filed and served in the above entitled action on or about September 25, 2007. Pursuant

to the order of the court on September 25, 2007, these points and authorities are submitted herein by e-filing by 11:00

o'clock a.m. on September 26, 2007. As set forth herein, the District Court has jurisdiction under 28 USC, Section 2241(c)(3) over the present habeas

petition under the holding in the precedent decision Singh v. Gonzales __ F3d __ (9th Cir. 8/24/07, Case No. 05-16005) and jurisdiction is not barred by 8 USC, Sections 1252(a)(5) and (b)(9) (codifying Sections 106(a) of Title 1, Division B of the Real ID Act of 205 [hereinafter RIDA]) since the constitutional deprivation set forth in the present habeas action consists of a violation of the due process clause of the Fifth Amendment of the federal constitution due to ineffective assistance of

counsel which occurred after entry of the final administrative order of removal in the proceedings before the Executive Office for Immigration Review, United States Department of Justice

(hereinafter EOIR).

Under Singh, the District Court retains

habeas jurisdiction over such post-final administrative order Fifth Amendment deprivations since such claims do not require the review of the administrative order of removal. 10473-74. Singh, at

Specifically, in the case at hand, petitioner seeks

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habeas relief as to the failure of counsel to assert on federal judicial review the error of the Board of Immigration Appeals, EOIR (hereinafter BIA) in finding that the voluntary departure period had expired under the precedent decision, Azarte v.

Ashcroft 394 F3d 1278 (9th Cir. 2005). review of the final administrative

Petitioner dos not seek order granting voluntary

departure with an alternative order of removal since the limited remedy sought is a remand for reinstatement of the voluntary departure period in accordance with Azarte. Singh at 10473-4.

As to ineffective assistance of counsel itself, a failure to seek judicial review of the clearly erroneous finding that the voluntary an departure ineffective period had expired of under Azarte

constitutes

assistance

counsel

constitutes

ineffective assistance.

The failure is analogous to those cases

involving the failure to seek review altogether by filing a timely petition for review and those decisions holding that a failure to seek of or assert relief constitutes ineffective of a

assistance fundamental

counsel, under

thereby the

depriving voluntary

petitioner departure

right

statute.

Accordingly, a failure to raise the clearly erroneous finding by the BIA in judicial review proceedings constitutes post-final order ineffective assistance of counsel which is subject to

habeas review. Finally, motions in under the controlling precedent governing has stay

habeas

corpus

proceedings

petitioner

clearly

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demonstrated a likelihood of prevailing with harm evident at maximum; and an important legal issue with irreparable harm if petitioner is removed pending disposition of his petition herein at minimum. 2002). II PROCEDURE The habeas petition was filed and served on or about Maharaj v. Ashcroft 295 F3d 963, 964-6 (9th Cir.

September 25, 2007 along with the instant motion.

On or about

the same date a telephonic hearing was held before the District Court on the stay motion. A briefing schedule was set with

simultaneous filings due at 11:00 o'clock a.m. on September 26, 2007 and simultaneous replies due at 1:00 o'clock p.m. the same day. Counsel for respondents stated that respondents Chertoff,

Alcantar and their delegates will not seek to remove petitioner to Mexico until after 5:00 o'clock p.m. on September 27, 2007. III FACTS Petitioner incorporates by reference the facts set forth in the habeas petition as if fully set forth herein. the following facts are pertinent to the In addition, and

jurisdictional

substantive issues set forth below.

Factual issues relative to

the stay motion itself are addressed in the stay motion and below.

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The immigration judge issued an order on or about March 25, 2004 denying discretionary cancellation of relief removal, under but 8 USC, Section voluntary

1229b(b)(1),

granting

departure under 8 USC, Section 1229c(b) within sixty days and the posting of a $500 bond within five days of the order with an alternative order of removal to Mexico if petitioner failed to depart within the voluntary departure period (Habeas petition, Exhibit J). The final administrative order was issued by the BIA after timely administrative appeal by petitioner on or about June 10, 2005, wherein the BIA dismissed the appeal from the order

denying relief under the cancellation statute, but reinstating the voluntary departure order for sixty days from the date of the order (Id., Exhibit M). of removal since it The BIA order became a final order the decision and order of the

affirmed

immigration judge.

8 USC, Section 1101(a)(47)(B)(i).

Counsel

for petitioner did not seek judicial review of the final order by petition within thirty days thereafter. 8 USC, Section

1252(b)(1). Instead, on the sixtieth day after the final order, and the last day of the voluntary departure order, counsel for

petitioner filed an administrative motion to reopen within the ninety day time period allowed after the final order for such motions. 8 USC, Section 1229a(c)(7)(C)(i). In the motion,

petitioner requested both a stay of removal and a stay of the

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voluntary departure period under Azarte v. Ashcroft 394 F3d 1278 (9th Cir. 2005) (habeas petition, Exhibit N). The BIA denied the motion on or about September 15, 2005, stating that the voluntary departure period had expired under Azarte, but that the motion to reopen itself could be considered as timely and was denied (Id., Exhibit P). In Azarte, the Ninth Circuit had to resolve the conflict between two statutes, regarding the sixty day maximum for

voluntary departure under 8 USC, Section 1229c(b)(2) and the ninety day maximum for motions to reopen under 8 USC, Section 1229a(c)(7)(C)(i). The Azarte court held that if the motion to

reopen is filed within the shorter voluntary departure period, then the voluntary departure period is tolled during the time the BIA is considering the motion to reopen. Azarte at 1289.

Accordingly, under Azarte the voluntary departure period in this case was tolled during the consideration of the motion to reopen since it was filed on the sixtieth day after the BIA's June 10, 2005 final order. Upon issuance of the September 15, 2005 BIA order denying the motion petitioner had thirty days to seek review under 8 USC, Section 1252(b)(1) and time regarding the voluntary

departure period commenced to run.

A petition for review was

filed on or about October 6, 2005 (Habeas petition, Exhibit Q). Voluntary departure time commences to run from the final order date unless tolled by Azarte. Under Desta v. Ashcroft 365 F3d

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741 (9th Cir. 2004) a subsequent filing of a motion for stay tolls running of time under a voluntary departure order, if it is filed within the voluntary departure period which commences to run after the lifting of an Azarte tolling period, but only for such time remaining at the time of the filing of the motion. Desta at 747. Therefore, the balance of voluntary departure

time available to petitioner under a Desta stay would have been 39 days. However, due to the BIA's erroneous finding under Azarte, all voluntary departure time was found to have expired as of September 15, 2005. for review, was not The error was not raised in the petition briefed by counsel and the court order

dismissing the petition as insubstantial does not indicate that voluntary departure time remains and the issue was never raised. (Habeas petition, Exhibits Q, T, W). Accordingly, the issue of

the BIA's erroneous finding that voluntary departure had expired was not raised and petitioner has lost the right thereto as a result of the failure which occurred after the final order in the administrative proceeding.

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///

///

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IV ARGUMENT A. The District Court Has Jurisdiction Over the Habeas Petition 1. RIDA Does Not Apply Under Singh v. Gonzales

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Under the provisions of RIDA, the District Court is
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stripped of habeas jurisdiction over review of final orders of
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removal.
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8 USC, Section 1252(a)(5); 1252(b)(9).

However, under

Singh
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a narrow exception arises where a Fifth Amendment due

process deprivation through ineffective assistance of counsel occurs after entry of the final administrative order since such
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review does not entail review of the order of removal itself,
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and falls outside of the restrictions on habeas jurisdiction
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under RIDA.
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Singh at 10473-4; 10487-8. a review of the final

Thus, where the remedy order itself, habeas

does
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not

entail

jurisdiction lies with the District Court.
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Singh at 10486-8.

In the case at hand, the attorney error occurred after the final
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order

issued

on

June

10,

2005

due

to

the

failure

of

counsel to raise and seek reversal of the clearly erroneous application of Azarte by the BIA as to the purported expiration
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of the voluntary departure period on judicial review with the
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Court of Appeals.
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The ruling is an unequivocal error or law, the voluntary departure period under the

since
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Azarte

tolls

facts.
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Failure to raise the issue at all is clearly ineffective

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since petitioner has been stripped of the rights to voluntarily depart to his prejudice (infra, IV, B and C). Under the case law, the court of Appeals has no authority to reinstate (as opposed to tolling) an expired grant of

voluntary departure.

Zazueta-Carillo v. Ashcroft 322 F3d 1166 The proper remedy in the case at hand BIA as the administrative agency

,1107-75 (9th Cir. 2003). entails a remand to the

directing it to reinstate the remaining 39 days of the voluntary departure period lost as a result of ineffective assistance of counsel. By merely retriggering the balance of the voluntary

departure time, the remedy does not result in a review of the June 10, 2005 final order. Singh at 10474, 14086-7 (remedy on

remand to District Court would be an order directing the BIA to retrigger the 30 day period to seek judicial review).

Accordingly, under Singh, the District court has jurisdiction over the habeas petition herein. 2. No Administrative Exhaustion Required

Due to the expired time limitations of 8 USC, Section 1229a(c)(7)(C)(i) and 1229a(c)(6)(B) (90 days and 30 days from the final order, respectively) on administrative motions to

reopen or reconsider; the regulatory restriction of voluntary departure reinstatements to the jurisdiction of the BIA or the immigration judge in conjunction with an administrative motion to reopen under 8 CFR, Section 1240.26(f); and the fact that such administrative motions are discretionary, and not a matter

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of right, a failure to exhaust such remedies is not a bar to habeas jurisdiction. (9th Cir. 2003). Noriega Lopez v. Ashcroft 335 F3d 874, 881

Accordingly, the doctrine of exhaustion of

administrative remedies does not apply. 3. Constructive Custody he has and of been ordered to surrender is in the Jones to the "in v.

Because respondents constructive custody"

Chertoff custody

Alcantar,

petitioner thereby

respondents, habeas

meeting

requirement

for

jurisdiction.

Cunningham 371 U.S. 236, 240-3 (1963). 4. Conclusion on the foregoing, the District Court has

Based

jurisdiction over the present habeas petition. B. The Failure to Seek Judicial Misapplication of Azarte by the Ineffective Assistance of Counsel 1. Constitutional Claim Review of the BIA Constitutes

The right to effective assistance of counsel arises under the due process clause of the Fifth Amendment. Baires v.

INS 856 F2d 89, 90-91 (9th Cir. 1998); Mohesseni Bebbahani v. INS 796 F2d 249, 250-2 (9th Cir. 1986). The issue therefore arises

under habeas jurisdiction 28 USC, Section 2241(c)(3). 2. In Standard for Ineffective Assistance the Ninth Circuit, the standard for ineffective

assistance of counsel is whether ineffective assistance "may"

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have

affected

the

outcome

of

the

proceeding.

Mohammed

v.

Gonzales 400 F3d 785, 793-4 (9th Cir. 2005). 3. Ineffective Assistance of Counsel

While there is no case precisely on point with the present case, the following cases set the parameters for the ineffective assistance of counsel claim herein. Failure application on by retained of the counsel alien to file a claim or

behalf

constitutes

ineffective

assistance of counsel.

Ray v. Gonzales 439 F3d 582, 587-89 (9th

Cir. 2006); Castillo Perez v. INS 212 F3d 518, 526 (9th Cir. 2000); Figueroa v. INS 886 F2d 76, 78-9 (4th Cir. 1989). A failure to apply for voluntary departure in the

administrative proceeding is ineffective assistance of counsel. Colindres Aguilar v. INS 819 F2d 259 (9th Cir. 1987). In the post-final order proceedings, the failure to file a timely petition for review after a final administrative order constitutes ineffective assistance of counsel. ex rel. Volkova v. Reno 200 F3d 1042 (9th Cir. 2000). context of the Sixth Amendment, ineffective Dearinger In the of

assistance

counsel includes acts and omissions on appeal. 477 U.S. 478, 488 (1986).

Murry v. Carrier

While tactical decisions may not arise to the level of a Fifth Amendment violation, errors and omissions which may

affect the outcome do.

Thorsteinsson v. INS 724 F2d 1365, 1367

(9th Cir. 1984); Mohammed at 793-4; Ray at 587-89.

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Accordingly, in the case at hand, the failure to raise the clear legal error committed by the BIA in misapplying Azarte clearly affected a post order outcome as to the perseveration of the grant of voluntary departure to petitioner's prejudice

(infra) and constitutes ineffective assistance of counsel. 4. Prejudice

Petitioner must show prejudice to prevail on the claim of ineffective assistance. Rodriquez Lariz v. INS 282 F3d 1218, Since

1226 fn. 6 (9th Cir. 2002); Mohesseni Behbbahani at 251.

he is now facing removal instead of an exercise of voluntary departure, petitioner has been prejudiced as follows: 1) his

$500 departure bond is forfeited under 8 USC, Section 1229c(C) and 8 CFR, Section 1240.26(c)(3); 2) he faces a civil penalty from $1,000 to $5,000 under 8 USC, Section 1229c(d)(1)(A); 3) he is barred from specific relief, including re-immigration under 8 USC, Section 1255, for a period of ten years (including an

employment visa as a skilled truck driver); and d) has lost his remaining 39 day voluntary departure period. 5. Based Conclusion on the foregoing, petitioner has suffered

ineffective assistance of counsel. C. A Stay of Removal Order is Merited and Justified under Maharaj v. Ashcroft

As set forth in the stay motion, the application herein is
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governed by the standards in Maharaj v. Ashcroft 295 F3d 963,
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964-6 (9th Cir. 2002).

Under the precedent, petitioner must

show: 1) likelihood to prevail on the merits with demonstrated hardship; or 2) serious legal question with the balance of

hardships tipping sharply in his favor.

The two standards from

the extreme poles of a continuum for assessing whether a stay is justified. Based submits on the he foregoing likely in to Section prevail IV, under A-B, petitioner and has

that

is

Singh

demonstrated hardship as set forth in the motion for stay at pages 12-13 and in Section IV, B., 4, supra. Alternatively

under the other end of the Maharaj continuum, the hardships tip sharply in his favor since his United States citizen son will need surgery for his myopia and petitioner provides both the medical coverage as well as supported a home for his son (Stay Motion, Exhibits B, C, E, F). Taken cumulatively with the

potential financial and immigration consequences of the loss of his voluntary departure, balanced by an absence of prejudice to the respondents who will incur detention and removal costs under a removal order, as opposed to the cost free departure of

petitioner under the reinstated remaining voluntary departure period of 39 days, the hardships sharply favor a stay order in this case.

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V CONCLUSION Based on the foregoing, it is respectfully requested that both a temporary stay order and a permanent stay order for the duration of the proceeding before the District Court be granted.

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

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