Opinion
Case Numbers, C98-234 Z, C99-177 C, C99-185 R, C 99-341 P, C99-151 L
August 15, 2000
Jay W. Stansell, Assistant Federal Public Defender, Attorney for Petitioners.
Brian C. Kipnis, Assistant United States Attorney, Attorney for Respondents
FIRST AMENDED AGREED ORDER ESTABLISHING SERVICE AND FILING SCHEDULE FOR HABEAS CORPUS CASES CHALLENGING I.N.S. POST — REMOVALL — ORDER DETENTION
In light of the Ninth Circuit's decision in Ma v. Reno, 208 F.3d 815 (9th Cir 2000), and the Petition for Certiorari filed July 5, 2000, the United States Attorney and the Federal Public Defender have conferred together and with the United States Magistrate Judges of this Court with regard to an amended protocol for habeas corpus actions brought by INS-detained aliens ordered deported to countries that thus far have declined to accept their return, i.e, "post-order detention" or "POD" cases Having so agreed, IT IS HEREBY ORDERED that the following amended service and filing schedule will apply henceforth.
1. New Procedures
A. All Future Cases in Which Indefinite Detention Challenged.
A Magistrate Judge will issue an "Order far Service, Production of Alien File, and for Return and Status Report" in each new case in which a POD habeas corpus petition is filed. Upon service of said Order upon the Seattle U S. Attorney's Office, the INS Shall have thirty calendar days to produce certified copy of the petitioner's A-file, and to lodge same with the Court and serve a copy on the petitioner, except that the INS shall be under no obligation to produce an A-file in cases in which the petitioner is released. from custody, or who has been deported, or whose deportation is imminent.
Upon production of the A-file, the INS shall, as soon as practicable and, in any event, within fifteen calendar days after the lodging of the A-file, file and serve a "Return and Status Report" ("RSR"). The RSR will be brief. It will confirm or clarify the alien petitioner's name and A-number country of nationality and/or citizenship, date of "finality" of the alien's administrative order of removal/deportation/exclusion, whether or not the 90-day "removal period" under-INA § 241(a)(1) [ 8 U.S.C. § 1231 (a)(1)] has expired, the status of the INS' efforts to effectuate the petitioner's deportation and any other information relevant to an analysis of the case under Ma v. Reno. In accordance with Section 2 of this agreed order, the RSR may incorporate defenses and arguments
The petitioner may file a response brief m any given case as soon as practicable and, in any event, within ten business days of receipt of the RSR, to clarify factual or legal issues raised in a particular case but need act file a response to the INS' RSR unless requested to do so by the Court. No petition for a writ off habeas corpus will be denied without the Court first requesting a response from, the petitioner to the INS' RSR unless otherwise ordered by the Court, the matter may be noted for consideration by the Magistrate Judge on the third Friday after the RSR. is filed.
If the Magistrate Judge determines, after reviewing the pleadings, that the alien petitioner's case is controlled by Ma v. Reno, the Magistrate Judge may forward the case to the assigned District Judge on an "expedited" basis, noting it for consideration by the District Court on the second Friday after the Magistrate Judge's report and recommendation, proposed order, and judgment are lodged with. the Clerk for entry of an appropriate dispositive order. It is understood that the INS normally will file no Objections to the Magistrate Judge's report and recommendation and proposed order, but may do so in a given case. Instead, the INS' RSR in each individual case, together with the Preservation of Defenses and Arguments contained in Section 2 of this Agreed Order, will be deemed incorporated in the record and will serve as the government's Objections brief.
The petitioner or the INS may request additional time to file their respective papers in a particular case. The petitioner or the INS may request that a particular case be determined by a different procedure if warranted by the circumstances of the particular case.
B Cases Currently Pending Before the Magistrate Judges
1. Cases in which briefing is complete; awaiting Report and Recommendation In any and all cases currently pending before the Magistrate Judges, in which briefing has been completed and the parties are awaiting a Report and Recommendation by the Magistrate Judge, the INS will not ordinarily tile Objections to the Magistrate Judges's recommendation and proposed order granting the writ of habeas corpus, but may do so in. any given case. Instead, the INS's initial response objections memorandum in each individual case, together with the Preservation of Defenses and Arguments contained in Section 2 of this Agreed Order, will be deemed incorporated in the record an will serve as the INS' Objections brief.
ii. Cases in Which Briefing is not Complete.
In all cases in which the government has already filed a short form return/opening brief and the A-file, amid the petitioner's response is due, the petitioner will file response briefs no later than ten business days from receipt of the INS' RSR. Section 2 of this order, pertaining to the preservation of defenses and arguments, shall apply to these cases The petitioner and the INS may request permission to submit further pleadings in these cases as the cause may warrant. These matters may be considered by the Count as outlined above in Section A.
In those cases in which the A-file has not already been produced, the INS shall produce the A-file within thirty days of the date of service of the petition, or within 10 days of the date of this order whichever is later, unless an extension of time is granted. The cases shall proceed in a manner which otherwise consistent with Sections 1(A) and 2 of this order.
In those cases in which the A-file has already been produced, but no briefing has occurred, the INS shall file its RSR within 15 calendar days of the date of this order unless an extension of dine is granted. The cases shall proceed in a manner which is consistent with Sections 1(A) and 2 of this order
2 Preservation of Defenses and Arguments
In all cases the INS reserves the might to seek a stay of an order directing the alien petitioner's release from detention.
In all cases the petitioner reserves the right to seek petitioner's immediate release pending final adjudication of the merits of the habeas corpus petition.
By agreeing to this First Amended Agreed Order, the INS does riot waive, but hereby expressly reasserts and respectfully incorporates in the record of all pending and future POD cases, all defenses and arguments contained in its pleadings previously filed in the Lead Cases in this District, in the State Reports and Recommendations and its Objections to Magistrate's Reports and Recommendations heretofore filed in the "POD" litigation in this District, and in its appellate briefs inMa v, Reno, supra The government specifically renotes herein its respectful disagreement with Ninth Circuit's decision in Ma v. Reno,supra, and with this Court's Joint Order in Phan v. Reno, 56 F. Supp.2d 1149 (W.D. West July 9, 1999). Accordingly, the government does not waive its right to file Notices of Appeal in all pending and future POD cases in this District, and to reassert therein all said defenses and arguments which are incorporated by reference in this Agreed Order.
Sminularly, by agreeing to this First Amended Agreed Order, the petitioners do not waive any arguments or claims contained in their original and amended Petitions for Writs of Habeas Corpus, in their pleadings previously filed in the Lead Cases in this District, Responses to government's Status Reports and Recommendations, and Responses to Objections to Magistrate's Reports and Recommendations heretofore filed in the "POD" litigation in this District and in their appellate briefs Ma v. Reno, supra and hereby reassert all said claims and arguments, which are incorporated by reference herein.
The preservation of defenses set forth in this paragraph shall apply retroactively to all POD cases which were either pending or which were filed on. or after June 2, 2000.
3 Privacy Act
For purposes of the Federal Privacy Act, 5 U S.C. § 552a(b)(11), IT IS FURTHER ORDERED that the Department of Justice is hereby authorized to make available to the Federal Public Defender's staff, and to the U S. District Judges and Magistrate Judges of the Western District of Washington and their stain the contents of INS A-files for each POD petitioner. The Department of Justice and its employees are hereby relieved of any obligation under 5 U S C. § 552a(c) to make or keep an account of the file disclosures made under authority of this Order, or of any obligation under 5 U.S.C. § 552a(e)(8) to provide notice to the various Petitioners of the file disclosures made under authority of this Order