Opinion
No. C 04-2956 PJH.
September 9, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR STAY OF DEPORTATION; VACATING CURRENT STAY; ORDER TO SHOW CAUSE RE JURISDICTION
Petitioner Singh filed a writ of habeas corpus and request for a stay of deportation on July 21, 2004, claiming that he was scheduled to be sent back to India the next day. The court granted a temporary stay of deportation and requested additional briefing on whether a stay should continue in effect through the resolution of the underlying petition. Having carefully read the parties' papers and considered the relevant legal authority, the court hereby DENIES plaintiff's motion for a stay pending the court's review of the habeas petition, and VACATES the stay currently in place, for the reasons that follow.
The parties refer in places to Singh's "removal," but the procedure in question appears to be a deportation. Singh Motion Exh. C (June 23, 2004 Order from Immigration and Customs Enforcement office setting deportation date of July 22, 2004).
BACKGROUND
Petitioner Kaser Singh is an Indian citizen and native, and a member of the Sikh religion. Singh's particular sect of the Sikh religion does not require him to wear long hair or a turban, or to comply with the five requirements of baptized Sikhs. Singh Exh. A at 6, 14 (May 21, 1998 IJ Order). Singh fled India and entered the United States around July 7, 1996, on an Indian passport under the name Kaser Ram. IJ Order at 5-6. On September 16, 1996, the department then known as the INS charged Singh with entry without inspection, and issued an order to show cause why Singh should not be deported.
Singh in response requested asylum, alleging that in 1995, he had been arrested and severely beaten twice by Punjab police concerning his alleged participation in an unspecified "Sikh's freedom struggle," and that he had fled India because he believed the police would kill him. IJ order at 7-14. Singh alleges that he has heard through his relatives in India that the police are still looking for him. Id. at 14-15.
The IJ found Singh's testimony incredible, specifically noting inconsistencies in his allegations concerning the Punjab police, and also noting that Singh's statements contradicted the State Department's reports concerning conditions in India at that time. IJ Order at 15-20. Based on this assessment of Singh's credibility, the IJ concluded that Singh had not shown a well-founded fear of persecution, and thus could not prevail on his request for asylum. Id. at 21.
Singh then filed with the BIA a request to reopen and remand to the IJ his request for leave to raise claims under the Convention Against Torture, which was denied. Singh then appealed to the Ninth Circuit, which affirmed both the IJ and the BIA's decisions. Singh Exh. B.
Singh now petitions for habeas relief, claiming that he received ineffective assistance of counsel from his attorney before the Ninth Circuit, and moves for a stay of deportation while his habeas petition is pending.
DISCUSSION
A. Legal Standards
1. Habeas Relief
Because deportation proceedings here started before April 1, 1997 and the final order of deportation was issued after October 30, 1996, the "transitional rules" under the Immigration Reform and Immigrant Responsibility Act of 1996 apply. Sanchez-Cruz v. INS, 255 F.3d 775, 778 (9th Cir. 2001). While the transitional rules divested the federal courts of jurisdiction to hear a number of petitions, aliens retain the right to petition the federal court for due process violations. Id. at 779 (citations omitted).
2. Stay of Deportation
A request for an interim stay of deportation is evaluated under the discretionary stay standard in Abassi v. INS, 143 F.3d 513 (9th Cir. 1998). This standard is identical to the standard for evaluating requests for preliminary injunctive relief, and requires that the petitioner demonstrate "either (1) a probability of success on the merits and the possibility of irreparable harm, or (2) that serious legal questions are raised and the balance of hardships tips sharply in petitioner's favor."Id. at 514. See also Andrieu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (reaffirming Abassi standard).
B. Exhaustion of Remedies
Singh admits that he has not filed a request to reopen his BIA proceedings to raise his claim of ineffective assistance of counsel. This claim is thus not yet considered fully exhausted.Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) ("we . . . require an alien who argues ineffective assistance of counsel to exhaust his administrative remedies by first presenting the issue to the BIA.") (citations omitted). The court must decline jurisdiction over this case. Id.
While the filing of a motion to reopen is not considered a statutory exhaustion requirement, the court has held that a failure to do so when that relief is appropriate nonetheless requires that jurisdiction be declined as a prudential matter.Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-81 (9th Cir. 2003).
Because the court lacks jurisdiction to hear this case, Singh cannot show any likelihood of success on the merits of his case, which defeats his request for a stay. Abassi, 143 F.3d at 514 (9th Cir. 1998). Therefore, the court need not reach the question of whether Singh has shown any irreparable harm should a stay be denied.
C. Conclusion
The stay currently in place is LIFTED, and Singh's motion for a stay pending the resolution of the habeas petition is DENIED. Furthermore, in light of this court's apparent lack of jurisdiction over the case, the court adopts an expedited schedule for reviewing Singh's petition for habeas relief. Singh shall file a brief in support of his habeas petition no later than 20 days after the filing of this order. In his brief, Singh is ORDERED TO SHOW CAUSE why the case should not be dismissed for lack of jurisdiction. The government's response, if any, shall be filed 10 days thereafter.
This order fully adjudicates the matter listed at no. 2 on the clerk's docket for this case.