No. CV 08-1450-PHX-MHM (MHB).United States District Court, D. Arizona.
August 13, 2008
ORDER
MARY MURGUIA, District Judge
Petitioner Meilinda Irsan (A95-296-550), who is represented by counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. #1) and a Motion for Preliminary Injunction (Doc. #5). The Court will require Respondents to answer the Petition and respond to the Motion for Preliminary Injunction.[1]
I. Petition for Writ of Habeas Corpus
Petitioner is a native and citizen of Indonesia. On May 5, 2003, an Immigration Judge (IJ) denied her applications for asylum, withholding of removal and for protection under the Convention Against Torture. The IJ granted Petitioner sixty days within which to voluntarily
Page 2
depart from the United States. Petitioner thereafter retained an attorney, Mr. Reed, to represent her on her appeal to the Board of Immigration Appeals (BIA). Mr. Reed filed a timely notice of appeal with the BIA, but died before filing a brief and before the deadline for Petitioner’s brief had expired. Mr. Reed had arranged for Mr. Sterwerf to assume Petitioner’s case. In late August of 2004, Mr. Sterwerf’s assistant informed Petitioner that the BIA had denied her appeal on August 9, 2004, but apparently did not tell her that the BIA had granted her thirty days to voluntarily depart from the United States. Petitioner alleges that on August 28, 2004, she retained Mr. Sterwerf to represent her before the United States Court of Appeals for the Ninth Circuit.
On September 10, 2004, two days after the thirty-day deadline had run, Mr. Sterwerf filed a petition for review with the Ninth Circuit. On November 22, 2004, the Ninth Circuit dismissed Petitioner’s petition for review for lack of jurisdiction. Petitioner alleges that Mr. Sterwerf failed to inform her that her that her petition for review had been denied. Instead, Petitioner alleges that during the four years after the Ninth Circuit dismissed her petition for review, Mr. Sterwerf’s office continued to tell Petitioner that her petition was still pending in the Ninth Circuit. During those years, Petitioner married a lawful permanent resident of the United States and gave birth to a United States citizen daughter.
On July 8, 2008, Petitioner was taken into custody by ICE. Petitioner then learned that her case had been dismissed by the Ninth Circuit in 2004. On July 8, 2008, Petitioner’s husband informed Mr. Sterwerf that Petitioner had retained new counsel. Petitioner alleges that on July 9, 2008, without her authorization, Mr. Sterwerf filed a motion to reopen with the BIA. On July 23, 2008, Petitioner’s new counsel also filed a motion to reopen with the BIA based on Mr. Sterwerf’s alleged ineffective assistance of counsel.
Petitioner argues that Mr. Sterwerf deprived her of her right to seek review in the Ninth Circuit in violation of her Fifth Amendment due process right to effective assistance of counsel in immigration proceedings. She seeks an order directing the BIA to reissue its August 9, 2004 decision denying her applications for asylum and withholding of deportation.
Page 3
II. Jurisdiction
Under the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005), the district courts no longer have habeas corpus jurisdiction to review a final order of removal. 8 U.S.C. § 1252(a)(5) (“Notwithstanding any other provision of law . . ., including section 2241 of Title 28, or any other habeas corpus provision, . . . a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal. . . .”); Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007) (after the effective date of the REAL ID Act, a “district court plainly lack[s] habeas jurisdiction” to review removal orders). But success on Petitioner’s claim that her attorney provided her with ineffective assistance of counsel by failing to timely file a petition for review with the Ninth Circuit does not challenge the merits of a removal order. Success on that claim would not undermine the merits of an order of removal — it would only entitle Petitioner to an order directing the BIA to reenter its order dismissing her appeal, thereby restarting the thirty-day deadline for filing a petition for review with the Ninth Circuit.Singh v. Gonzales, 499 F.3d 979 (9th Cir. 2007). The REAL ID Act therefore does not deprive this Court of jurisdiction to consider Petitioner’s claim for relief. See Id., at 980. Accordingly, the Court will require Respondents to answer the Petition.
IT IS ORDERED:
(1) The Clerk of Court must serve a copy of the Summons, Petition (Doc. #1), Motion for Preliminary Injunction (Doc. #5), and this Order upon the United States Attorney for the District of Arizona by certified mail addressed to the civil process clerk at the office of the United States Attorney pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court also must send by certified mail a copy of the Summons, Petition, and this Order to the United States Attorney General pursuant to Rule 4(i)(1)(B) and to Respondents pursuant to Rule 4(i)(2)(A).
(2) Respondents must answer the Petition within 20 days of the date of service. Petitioner may file a reply within 20 days of service of Respondents’ answer.
Page 4
(3) Respondents must respond to Petitioner’s Motion for Preliminary Injunction as soon as possible, but no later than Monday, August 25, 2005. Petitioner may file a reply within 5 days of Respondents’ response.
(4) If Respondents intend to remove Petitioner from the UnitedStates prior to the Court’s disposition of this matter,Respondents must file a “Notice of Intent to Remove” and serve acopy on Petitioner within such time as is reasonable andsufficient to allow Petitioner to file a motion for temporaryrestraining order.
(5) The Clerk of Court must forthwith fax a copy of this Order to the United States Attorney for the District of Arizona, to the attention of Cynthia Parsons at (602) 514-7760, and to District Counsel Patricia Vroom at (602) 744-2400.
(6) Except for the Motion for Preliminary Injunction (Doc. #5), which will remain pending before this Court, this matter is referred to Magistrate Judge Michelle H. Burns pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation.