Sylvester Owino v. Janet Napolitano

FILED
NOT FOR PUBLICATION JUL 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SYLVESTER OWINO, AKA Sylvester No. 09-56975
Otieno-Owino,
D.C. No. 3:07-cv-02267-WQH-
Petitioner - Appellant, POR
v.
MEMORANDUM *
JANET NAPOLITANO, Secretary of the
Department of Homeland Security; ERIC
H. HOLDER, Jr., Attorney General;
ROBIN BAKER, Director of San Diego
Field Office, U.S. Immigration and
Customs Enforcement; JOHN A.
GARZON, Officer-In-Charge,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted June 3, 2010
Pasadena, California
Before: B. FLETCHER, FISHER and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Sylvester Owino appeals the denial of his petition for a writ of habeas corpus
demanding release from immigration detention. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253(a), and we affirm.
The district court properly carried out the mandate set out in Owino v.
Napolitano by holding an evidentiary hearing concerning whether Owino “‘faces a
significant likelihood of removal to [Kenya] once his judicial and administrative
review process is complete.’” 575 F.3d 952, 955 (9th Cir. 2009) (per curiam)
(alteration in original) (quoting Casas-Castrillon v. Dep’t of Homeland Sec., 535
F.3d 942, 948 (9th Cir. 2008)). Owino v. Napolitano did not require the district
court to assess whether Owino is likely to succeed on the merits of his claim under
the Convention Against Torture (“CAT”), because “the government retains an
interest in ‘assuring [Owino’s] presence at removal’” so long as “there is nothing,
such as a lack of repatriation agreement with his home country or a finding that he
merits mandatory relief from removal” that prevents Owino’s removal to Kenya “if
he ultimately fails in fighting the government’s charge of removability.” Casas-
Castrillon, 535 F.3d at 949 (quoting Zadvydas v. Davis, 533 U.S. 678, 699 (2001)).
The district court also did not err by finding that Owino failed to provide
“good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Kenya’s refusal to
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provide travel documents without Owino’s consent while immigration proceedings
remain pending is not evidence that Kenya will prove intransigent should Owino
fail to establish entitlement to CAT relief and become subject to a final order of
removal. Nor is a deportation officer’s testimony that half of the Kenyan cases she
handled in her first year were resolved through removal sufficient to meet Owino’s
burden. Showing only the proportion of unresolved cases in a given period, rather
than the length of the removal process, proves nothing about the likelihood that
Owino will be removed in the “reasonably foreseeable future” after his
immigration proceedings have concluded.
Even if we assume that Owino met his prima facie burden, the district court
did not err by finding in the alternative that the government effectively rebutted
Owino’s case. Government witnesses explained that the Kenyan government’s
present rationale for refusing to provide travel documents would no longer apply
once immigration proceedings had concluded. One official specifically testified
that in the last year Kenya had only refused a single deportee, on the ground that
the individual was not a Kenyan citizen.
Owino’s habeas petition is therefore denied without prejudice to his filing a
subsequent petition should circumstances warrant. Cf., e.g., Nadarajah v.
Gonzales, 443 F.3d 1069 (9th Cir. 2006) (granting Zadvydas claim once alien
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prevailed in administrative proceedings); Thai v. Ashcroft, 366 F.3d 790 (9th Cir.
2004) (granting Zadvydas claim based on lack of a repatriation agreement with
alien’s native country).
AFFIRMED.
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