JUAN GARCIA-HERRERA V. NATHALIE ASHER, No. 13-35435 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 15 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN DEDIOS GARCIA-HERRERA, Petitioner - Appellant, No. 13-35435 D.C. No. 2:12-cv-01711-RSM v. MEMORANDUM* NATHALIE ASHER, Immigration and Customs Enforcement Field Office Director; et al., Respondents - Appellees. Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding Submitted October 6, 2014** Seattle, Washington Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges. Juan Dedios Garcia-Herrera appeals the district court s denial of his habeas petition for lack of jurisdiction. We note that on September 26, 2014, we ordered * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Garcia-Herrera to file a status report, informing the court of whether he remained in the United States and of the status of his application for relief under the Deferred Action for Childhood Arrivals ( DACA ) program. Garcia-Herrera responded on October 6, informing the court that he was still present in the United States and that his DACA application had been denied. Because Immigration and Customs Enforcement s ( ICE ) refusal to delay his removal pending the adjudication of his DACA application formed the basis of Garcia-Herrera s habeas petition, it appears that this case may be moot. However, we dismiss on the alternate ground of lack of jurisdiction. The district court held that two statutory provisions, 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(g), deprived it of jurisdiction over Garcia-Herrera s habeas petition. The former requires that claimants seek review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States through a petition for review in the appropriate court of appeals. 8 U.S.C. § 1252(b)(9); see also 8 U.S.C. § 1252(a)(5). The latter expressly bars habeas jurisdiction over any cause or claim . . . arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g) (emphasis added). 2 Garcia-Herrera argues that 8 U.S.C. § 1252(b)(9) does not bar his habeas petition because he is not challenging the merits of the underlying removal order. Rather, he challenges ICE s decision not to delay his removal pending the adjudication of his application for relief under DACA. However, by his own formulation, this constitutes a challenge to ICE s decision to execute a removal order. Therefore, the district court properly dismissed his habeas petition for lack of jurisdiction under 8 U.S.C. § 1252(g). DISMISSED. 3
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