1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABBAS HOSSENINI, Case No.: 18-CV-1771 JLS (BLM)

12 Petitioner,

ORDER (1) GRANTING

13 v. RESPONDENTS’ MOTION

TO VACATE, AND (2) ORDERING

14 MADELINE KRISTOFF, Acting Field

PETITIONER TO SHOW CAUSE

Director, San Diego Field Office, USCIS, 15 WHY HIS PETITIONS FOR et al.,

HABEAS CORPUS SHOULD NOT

16 Respondents. BE DISMISSED AS MOOT 17

AND ALL CONSOLIDATED CASES

18 19 20 Presently before the Court is Respondents’ Motion to Vacate, filed in each of 21 Petitioner’s three related actions for writ of habeas corpus, Hossenini v. DHS/ICE Chief 22 Counsel, No. 18-CV-1771 JLS (BLM) (S.D. Cal. filed July 3, 2018) [hereinafter 23 “Hossenini I”] (ECF No. 16); Hosseini v. Warden, No. 19-CV-710 JLS (BLM) (S.D. Cal. 24 filed Apr. 18, 2019) [hereinafter “Hossenini II”] (ECF No. 11); and Hossenini v. Kristoff, 25 No. 20-CV-902 JLS (BLM) (S.D. Cal. filed May 14, 2020) [hereinafter “Hossenini III”] 26 / / / 27 / / / 28 / / / 1 (ECF No. 7) (collectively, the “Motion”). On August 31, 2020, the Court issued an order 2 consolidating these cases and ordering Petitioner to respond to the Motion on or before 3 September 17, 2020. See Hossenini I, ECF No. 17. Petitioner filed no opposition to the 4 Motion, and on October 14, 2020, the Court vacated the hearing on the Motion and took 5 the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 6 See Hossenini I, ECF No. 18. Having considered Respondents’ arguments and the law, the 7 Court GRANTS the Motion. 8 BACKGROUND 9 On July 3, 2018, and April 3, 2019, Petitioner, who at the time was in U.S. 10 Immigration and Customs Enforcement (“ICE”) custody at the Otay Mesa Detention 11 Center (“OMDC”), filed in the Central District of California two petitions for habeas 12 corpus. See Mot. at 2–3. Both cases subsequently were transferred to the Southern District 13 of California on July 31, 2018, and April 17, 2019, respectively, given that Petitioner was 14 detained within this District. See id. at 3 (citing Hossenini I, ECF No. 3; Hosseini II, ECF 15 No. 3). When Hossenini I was transferred to this District, the U.S. Attorney’s Office 16 (“USAO”) was not added to the docket or otherwise notified of the case. See id. (citing 17 Hossenini III, ECF No. 6-1 at 11–13). 18 On April 24, 2019, Petitioner was released from OMDC under an Order of 19 Supervision, which “includes requirements that he appear in person at the request of ICE 20 and not commit any crimes,” id. (citing Hossenini III, ECF No. 6-1 at 4–8), and that he 21 wear an electronic monitoring device, see id. (citing Hossenini III, ECF No. 6-1 at 2) 22 (footnote omitted). According to Respondents, Petitioner has not been in ICE custody 23 since being released on April 24, 2019. See id. 24 / / / 25 26 27 1 The Court notes that Petitioner is denominated “Abbas Hossenini” in Hossenini I and Hossenini III but “Abbas Hosseini” in Hosseini II and has adopted the relevant spelling in each short-cite to these matters. 28 1 Meanwhile, on August 19, 2019, the Court issued an order to show cause (“OSC”) 2 why the Hossenini I petition should not be granted and ordering Respondents to file a return 3 on or before August 29, 2019. See id. (citing Hossenini I, ECF No. 12). As Respondents 4 were not aware of the OSC, they did not file a return as ordered. See id. at 2, 3. On October 5 16, 2019, the Court granted in part the Hossenini I petition (the “First Order”). See id. at 6 3–4 (citing Hossenini I, ECF No. 13). Again, because the USAO was not added to the 7 docket, none of the USAO, ICE, nor the Immigration Court knew of the First Order. See 8 id. at 4. 9 On May 14, 2020, Petitioner filed his third habeas petition. See id. (citing Hossenini 10 III, ECF No. 1). The case was subsequently transferred to this Court pursuant to the low- 11 number rule. See id. (citing Hossenini III, ECF No. 2). This time, the USAO was added 12 to the docket, but “mistakenly assumed that the case was being handled by the Department 13 of Justice’s Office of Immigration Litigation” (“OIL”). Id. Assistant U.S. Attorney 14 (“AUSA”) Caroline C. Prime states that the first time she “became aware of this matter 15 was on June 12, 2020, when the Civil Division docketing clerk sent an e-mail forwarding 16 [the low-number transfer order], informing us (incorrectly) that OIL was handling this 17 case.” Id. 18 On June 18, 2020, Petitioner was arrested by the San Diego County Sheriff’s Office 19 (the “Sheriff’s Office”), and, as of the date of the filing of the Motion, he remained in the 20 Sheriff’s Office’s custody. See id. (citing Hossenini III, ECF No. 6-1 at 14–15; Exs. 3–4). 21 The same day, “ICE issued an Immigration Detainer, asking the Sheriff’s Office to inform 22 ICE if Petitioner is going to be released from its custody.” Id. at 5 (citing Hossenini III, 23 ECF No. 6-1 at 16). 24 On June 25, 2020, the Court issued an OSC in Hossenini III, directing Respondents 25 to respond to Petitioner’s third petition on or before July 16, 2020. See id. (citing Hossenini 26 III, ECF No. 3). Because the USAO “mistaken[ly] assum[ed] that OIL was handling this 27 case,” no response was filed. Id. Accordingly, on August 7, 2020, the Court ordered 28 Petitioner’s release from ICE custody. See id. (citing Hossenini I, ECF No. 14; Hosseini 1 II, ECF No. 9; Hossenini III, ECF No. 4 (collectively, the “Second Order”)). Respondents 2 assert that “[t]he statute and regulations that this Court ordered Respondents to comply 3 with provide for conditions of supervision like those applied to Petitioner’s release on April 4 24, 2019.” Id. (citing Order at 7). On August 10, 2020, the Clerk entered judgment in all 5 three cases. See id.; see also Hossenini I, ECF No. 15; Hosseini II, ECF No. 10; Hossenini 6 III, ECF No. 5 (collectively, the “Judgment”). AUSA Prime “learned about this case for 7 the second time on August 10, 2020, when the acting Civil Division docketing clerk 8 forwarded [the Second Order].” Id. 9 On August 12, 2020, Respondents filed a Report on Petitioner’s Release, providing 10 many of the facts detailed above and informing the Court of their intention to move for 11 relief from the First and Second Orders and Judgment. See generally Hossenini III, ECF 12 No. 6. On August 28, 2020, Respondents filed the instant Motion. 13 LEGAL STANDARD 14 Pursuant to Federal Rule of Civil Procedure 60(b)(1), a party or his legal 15 representative may move for relief “from a final judgment, order, or proceeding” due to 16 “mistake, inadvertence, surprise, or excusable neglect.” Such a motion must be made 17 “within a reasonable time,” and, for relief premised on Rule 60(b)(1), “no more than a year 18 after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 19 60(c)(1). “Rule 60(b) is meant to be remedial in nature and therefore must be liberally 20 applied.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (citing Butner v. Neustadter, 324 21 F.2d 783, 786 (9th Cir. 1963)). 22 “‘[E]xcusable neglect’ covers negligence on the part of counsel,” and “the 23 determination of whether neglect is excusable is an equitable one that depends on at least 24 four factors,” including, but not limited to, “(1) the danger of prejudice to the opposing 25 party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason 26 for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal 27 Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick 28 Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). 1 ANALYSIS 2 Respondents request that the Court vacate the First and Second Orders and the 3 Judgment pursuant to Rule 60(b)(1) and dismiss Petitioner’s three habeas petitions as moot. 4 See Mot. at 8. Respondents note that they filed the present Motion less than a year after 5 the First and Second Orders were issued on October 16, 2019, and August 7, 2020, 6 respectively, and judgment was entered on August 10, 2020. See id. at 6 (citations omitted). 7 Respondents claim that, had the USAO “been initially afforded notice and opportunity to 8 apprise this Court that the case was moot, the subsequent, unnecessary expenditure of 9 judicial resources would have been avoided.” Id. Respondents urge that “this Court 10 granted relief under the mistaken understanding that Petitioner was still detained by 11 Respondents. In addition, Respondents’ regrettable failure to respond to this Court’s two 12 OSCs was excusable due to inadequate notice and confusion caused by the multiple filings, 13 including two inter-district transfers.” Id. at 7 (citing Kingvision Pay-Per-View Ltd. v. Lake 14 Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999)). Respondents “acknowledge[] that [the 15 USAO] should have contacted OIL to confirm its mistaken assumption and regrets that its 16 failure to do so resulted in this Court’s granting relief without the benefit of the relevant 17 facts.” Id. However, because Petitioner has been released from ICE custody since April 18 24, 2019, and has been in the Sheriff’s Office’s custody since June 18, 2020, there is no 19 prejudice to Petitioner. See id. 20 Having considered the facts of this case in light of the Pioneer factors, the Court 21 agrees that relief from the First and Second Orders and the Judgment is warranted here. 22 Although Respondents’ failure to respond to the OSCs was negligent, the Court finds that 23 the USAO’s neglect was excusable. First, Respondents provide evidence that Petitioner 24 was released from ICE custody in April 2019 and assert that Petitioner has not been in ICE 25 custody since. See Hossenini III, ECF No. 6 Exs. 1–4. To the extent this is true, the Court 26 agrees that any potential prejudice to Petitioner is negligible. Second, although the length 27 of Respondents’ delay was in part significant—the first OSC was issued in August 2019, 28 and Respondents’ update regarding Petitioner’s release was not filed until a year later in 1 August 2020—the blame does not appear to fall solely on the USAO, as the USAO was 2 apparently not included on the docket and given notice of the OSC at the time. Moreover, 3 the USAO’s failure to respond did not significantly delay or adversely impact the 4 proceedings. The First Order granted in part the petition in Hossenini I less than two 5 months after the first OSC issued, and the Second Order granted the petitions in all three 6 actions just over a month after the second OSC issued. 7 Third and relatedly, the Court finds forgivable the reasons provided for 8 Respondents’ failure to respond to the OSCs. As already noted, the USAO has represented 9 it was not included on the docket and therefore did not have notice of the petitions until 10 June 2020. Further, while it would have been prudent for the USAO to verify that OIL 11 was handling the second OSC, the Court does not believe the failure to do so is inexcusable. 12 And finally, Respondents aver, and their actions suggest, that they have acted in good faith. 13 Upon entry of the Judgment, Respondents provided a status update within two days and 14 promptly filed the present Motion. Accordingly, on balance, the Court finds that 15 Respondents’ neglect was excusable and merits the vacating of the First and Second Orders 16 and the Judgment. 17 However, the Court declines to dismiss Petitioner’s petitions as moot without 18 affording Petitioner the opportunity to refute Respondents’ claims that he has not been in 19 ICE custody since April 2019, particularly as the Court recognizes that circumstances may 20 have changed in the four months that have elapsed since the filing of the present Motion. 21 CONCLUSION 22 In light of the foregoing, the Court GRANTS Respondents’ Motion (Hossenini I, 23 ECF No. 16; Hosseini II, ECF No. 11; Hossenini III, ECF No. 7). Accordingly, the Court 24 VACATES the First Order (Hossenini I, ECF No. 13), the Second Order (Hossenini I, ECF 25 No. 14; Hosseini II, ECF No. 9; Hossenini III, ECF No. 4), and the Judgment (Hossenini 26 I, ECF No. 15; Hosseini II, ECF No. 10; Hossenini III, ECF No. 5). 27 Further, given Respondents’ evidence that Petitioner was released from ICE custody 28 on April 24, 2019—see, e.g., Hossenini III, ECF No. 6 Exs. 1–4—the Court ORDERS 1 || Petitioner to SHOW CAUSE why his Petitions should not be denied as moot. Petitioner 2 ||SHALL FILE a brief, not to exceed ten (10) pages, explaining why these matters are not 3 ||moot on or before January 27, 2021. This Order to Show Cause constitutes notice to 4 || Petitioner that the Court will dismiss these consolidated actions without prejudice pursuant 5 Civil Local Rule 83.1 on January 28, 2021, should Petitioner fail to respond to this Order. 6 IT IS SO ORDERED. 7 ||Dated: January 13, 2021 tt 8 jen Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28