Opinion
CASE NO. C07-1497-RSM-JPD.
November 20, 2007
ORDER GRANTING RESPONDENT'S MOTION FOR EXTENSION OF TIME AND RE-NOTING PETITIONER'S MOTION FOR RELEASE ON BOND
On September 25, 2007, petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging the lawfulness of his detention by the U.S. Immigration and Customs Enforcement ("ICE"). (Dkt. #6). Petitioner requests that he be released from custody, contending that he is a native Indian and a United States citizen. Id. On November 8, 2007, petitioner filed a "Motion for Release on Bond Pending Adjudication and Request for Stay." (Dkt. #11). The habeas petition and the motion seek the same relief — release from detention.
Petitioner initially failed to pay the $5.00 filing fee or submit an application for In Forma Pauperis ("IFP") status. (Dkt. #3). Petitioner subsequently corrected the IFP deficiency on October 9, 2007, and respondent was served with the habeas petition on October 12, 2007. (Dkts. #8 and #9).
Petitioner indicates that he has filed a Petition for Review and a stay of removal with the Ninth Circuit Court of Appeals. (Dkt. #6).
On November 13, 2007, respondent filed the instant "Motion for Extension of Time in which to file Return," arguing that "ICE requires additional time to investigate Petitioner's serious, though unsupported, allegations." (Dkt. #12 at 1). Respondent asserts that petitioner has used or has been known by over eleven names, and that while petitioner alleges that he is a U.S. citizen, it appears from all available information that he is a native and citizen of Mexico. Id. Respondent further requests that the Court re-note petitioner's motion for release for December 14, 2007, so that respondent can file a response to petitioner's motion at the same time as his return to petitioner's habeas petition.
Upon review of the record, the Court does hereby ORDER:
(1) Respondent's request for an extension of time (Dkt. #12) is GRANTED. Petitioner requests in his habeas petition (Dkt. #6) and motion for release (Dkt. #11) that the Court order his immediate release from detention. While petitioner raises serious questions in his habeas petition — that he is a United States citizen and that he is being unlawfully detained by ICE — he provides no documentation in support of his claims. Moreover, petitioner has used or been known by numerous names in his dealings with ICE, requiring additional time for respondent to "make a return certifying the true cause of the detention." See 28 U.S.C. § 2243. Accordingly, the Court finds that respondent's request for an extension of time is warranted.
(2) Respondent shall have until December 10, 2007, in which to serve and file his Return to the Habeas Petition.
(3) The Clerk is directed to RE-NOTE petitioner's motion for release (Dkt. #11) on the Court's calendar for consideration on December 14, 2007.
(4) The Clerk is directed to forward a copy of this Order to petitioner, all counsel of record, and to the Honorable Ricardo S. Martinez.