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Zetouna v. Duran

June 20, 2007

NAJAH TOMA ZETOUNA, PETITIONER
v.
THOMAS V. DURAN, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Smyser

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS

Petitioner Najah Toma Zetouna ("Zetouna" or "Petitioner") an alien in the custody of the Bureau of Immigration and Customs Enforcement ("ICE") filed, through counsel, this petition for writ of habeas corpus or writ of mandamus on April 17, 2007. (Rec. Doc. 1).

On May 9, 2007, the Respondents filed a response to the Petition (doc. 4) and on May 16, 2007, the Petitioner filed a reply. (Rec. Doc. 5).

Thereafter, on May 29, 2007, Magistrate Judge Smyser issued a Report and Recommendation, recommending that the Petition be denied without prejudice and the matter closed. (Rec. Doc. 6). On June 6, 2007, the Petitioner filed objections to the Magistrate Judge's report. (Rec. Doc. 7). This matter is therefore ripe for our review.

STANDARD OF REVIEW

When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

FACTUAL BACKGROUND/PROCEDURAL HISTORY

Petitioner, a Catholic, is a citizen and native of Iraq. (Petition, ¶1). By a Notice to Appear dated October 30, 2002, the Petitioner was charged with being subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(C) because he had been convicted in Michigan in 1990 of a firearms offense. (Petition, ¶5).

On September 27, 2006, Immigration Judge Walter A. Durling denied the Petitioner's application for cancellation of removal for a lawful permanent resident pursuant to 8 U.S.C. § 1229b(a). (Petition, ¶6). Thereafter, Petitioner applied for relief from removal in the form of asylum which was denied by Judge Durling on February 7, 2007, however Petitioner's removal was ordered withheld with Government concurrence. (Petition, ¶7).*fn1 At the conclusion of the February 7, 2007 hearing, Judge Durling indicated on the record that he believed ICE had no reason to continue to detain Petitioner and retained jurisdiction to issue a bond to Petitioner in the event ICE refused to release Petitioner.

Petitioner appealed Judge Durling's September 27, 2007 denial of his application for cancellation of removal for lawful permanent resident to the Board of Immigration Appeals. (Petition, ¶10). However, on March 29, 2007, Petitioner withdrew his pending appeal before the Board of Immigration Appeals. (Petition, ¶11). The Board of Immigration Appeals returned the record to the Immigration Court in an order dated April 17, 2007. (Response, Ex. 4).

Previously and presently, ICE refuses to release Petitioner. (Petition, ¶13) On March 21, 2007, Petitioner filed an "Emergency Motion for Bond and Waiver of Appearance of Respondent at any Bond Hearing on this Motion" with the York Immigration Court. (Petition, ¶14). On March 23, 2007, Judge Durling ruled that he no longer had jurisdiction to issue a bond. (Petition, ¶15). In rendering this ruling, Judge Durling indicated in a footnote that:

That said, since the likelihood of finding an alternate country of removal is probably slim to none, which DHS must know, it is legally debatable whether the agency could automatically invoke its 90-day detention period absent a good-faith belief that it could successfully remove him. If respondent believes the agency is abusing its authority to detain him ...


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