Opinion
No. C02-2330L
February 12, 2003
ORDER GRANTING TEMPORARY STAY OF REMOVAL
On November 27, 2002, petitioner filed, pro se, the instant habeas petition pursuant to 28 U.S.C. § 2241. The petition apparently seeks judicial review of the INS order for removal of petitioner to Belize. (Dkt. #3). The Court granted petitioner leave to file in forma pauperis. (Dkt. 42). On November 27, 2002, the Court ordered respondents to file a return to the petition. (Dkt. #4). On the same date, petitioner moved for appointment of counsel, stating that he is a native of Belize and doesn't "comprehend the laws of this Great Nation," and that he also had a deadline with the Board of immigration Appeals ("BIA") on or about December 5, 2002. (Dkt. #5). On December 16, 2002, the Court granted petitioner's motion, and ordered appointment of counsel. (Dkt. #7). In the meantime, petitioner filed a motion for a bond hearing, which was noted for consideration on December 27, 2002. (Dkt. #6).
On December 18, 2002, petitioner filed a motion to reserve his rights to hire a private attorney or remain pro se. (Dkt. #8). Petitioner stated that he had had a conversation with the Federal Public Defenders office, and felt that there was a conflict of interest between himself and the attorneys there. (Dkt. #8 at 1).
On December 20, 2002, private attorney Robert Pauw was appointed as counsel for petitioner. (Dkt. #9). On the same date, respondents filed a preliminary return and motion for clarification/specificity. (Dkt. #11). In their motion, respondents requested that petitioner's counsel be ordered to file an amended habeas petition which is more fact specific, as they could not properly respond to the petition that was filed pro se. (Dkt. #11 at 4). On January 9, 2003, the Court granted respondents' motion, and ordered petitioner's counsel to file an amended habeas petition no later than February 7, 2003. (Dkt. #17). The parties subsequently filed a stipulated agreement extending the due date for petitioner's amended habeas petition until February 14, 2003. (Dkt. #18).
In the meantime, the Court also re-noted petitioner's motion for a bond hearing for consideration on January 31, 2003. (Dkt. #17). The Court allowed petitioner's counsel to file a supplement to petitioner's motion, as the motion had been filed before counsel was appointed. On January 23, 2003, counsel filed that supplement. (Dkt. #19). On January 31, 2003, respondents filed a motion to enlarge the briefing schedule for their response to the bond motion by one day, along with their proposed response, which is noted for consideration on February 20, 2003. ( See Lodged Motion and Respondents' Response to Petitioner's Motion for Bond Hearing). Both petitioner's bond motion, and respondents' motion to enlarge the briefing schedule for their response, remain pending.
On February 7, 2003, petitioner filed a reply to respondents' proposed response to petitioner's bond motion. (Dkt. #20). Within petitioner's reply, petitioner requested an immediate stay of removal. (Dkt. #20 at 1). Petitioner states that the INS intends to remove him to Belize on February 12, 2003. (Dkt. #20 at 1). Respondents' counsel verified by telephone that the INS does indeed have travel documents in hand, and plans to move forward with removal. Respondents' counsel also informed the Court that petitioner's request for stay of removal is not unopposed, but that respondents do not plan on filing a reply to the request. Accordingly, the Court, having considered petitioner's request and the balance of the record, finds and ORDERS as follows:
Although petitioner filed this request on February 7, 2003, it did not come to the attention of the Court until late in the afternoon on February 11, 2002, as it had not been filed on an emergency basis.
Both petitioner's counsel and respondents' counsel participated in a telephone call to the Chambers of the Undersigned Magistrate Judge to alert the Court of petitioner's immediate request.
(1) Petitioner's deportation is STAYED pending a resolution of petitioner's habeas corpus action. The standard of review for a stay of removal is set forth in Abassi v. INS, 143 F.3d 513 (9th Cir. 1998); see also Andreiu v. Asheroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc) (concluding that § 1252(f)(2) does not limit the power of federal courts to grant a stay of removal). Under Abassi, petitioner must show either (1) the probability of success on the merits plus the possibility of irreparable harm, or (2) that serious legal questions are raised and the balance of hardships tips in petitioners favor. Abassi, 143 F.3d at 514.
The Court finds that petitioner meets the second part of the Abassi test. Although petitioner's amended habeas petition is not yet due to the Court, and petitioner reserves the right to add additional claims (see Dkt. #20 at 10), petitioner initially appears to raise substantial due process questions before this Court, alleging that the Immigration Judge ("IJ") did not allow petitioner to present evidence in support of his application for cancellation of removal during his removal hearing. (Dkt. #20 at 10). Petitioner further argues that he did not receive fair notice of the charge upon which his removal proceeding was based. (Dkt. #20 at 11). Finally, petitioner asserts that removal will cause extreme hardship on his family, as his wife and U.S.-citizen child rely on him for essential financial and emotional support. (Dkt. # 20 at 12).
(2) Although the Court has found that serious legal questions are raised, the Court expresses no views at this time as to the merits of those claims.
(3) The Clerk shall direct a copy of this Order to all counsel of record, and shall forward a copy of this Order to Judge Weinberg.