Raul Ojeda v. U.S. Department of Homeland Security, No. 2:2009cv07612 - Document 3 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS by Judge Percy Anderson; IT IS ORDERED that Judgment shall be entered summarily dismissing the habeas corpus petition for lack of subject matter jurisdiction. See order for further details. (jy)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 RAUL OJEDA, 10 Petitioner, vs. 11 12 13 U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent. ) Case No. CV 09-7612-PA(RC) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) ) 14 15 On October 20, 2009, petitioner Raul Ojeda, proceeding through 16 counsel, filed a petition for writ of habeas corpus under 28 U.S.C. 17 § 2241, naming as respondent the U.S. Department of Homeland Security. 18 The petitioner candidly states on the face of the petition that he was 19 [d]eported and removed from the United States [o]n or about 20 September 8, 2009[.] 21 deportation by conclusorily claiming, without setting forth any 22 supporting facts, that because he is a United States citizen he was 23 deprived of substantive due process of law, and other unidentified 24 constitutional rights, when he was deported. Petition at 2. The petitioner challenges his Petition at 3. 25 26 27 28 DISCUSSION The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005) ( the Act ), precludes this Court from having subject matter 1 jurisdiction to consider petitioner s claims. 2 521 F.3d 1094, 1095 (9th Cir. 2008); Iasu v. Smith, 511 F.3d 881, 887- 3 88 (9th Cir. 2007); see also Puri v. Gonzales, 464 F.3d 1038, 1041 4 (9th Cir. 2006) (The Act, which became effective on May 11, 2005, 5 eliminated district court habeas jurisdiction, including jurisdiction 6 over orders of removal and vested jurisdiction to review such orders 7 exclusively in the courts of appeals. ); Alvarez-Barajas v. Gonzales, 8 418 F.3d 1050, 1052 (9th Cir. 2005) (same). 9 must be brought in the appropriate court of appeals, as provided for 10 Momeni v. Chertoff, Instead, such challenges in Section 106(a) of the Act: 11 12 Notwithstanding any other provision of law (statutory or 13 nonstatutory), including section 2241 of Title 28, or any 14 other habeas corpus provision, and sections 1361 and 1651 of 15 such title, a petition for review filed with an appropriate 16 court of appeals . . . shall be the sole and exclusive means 17 for judicial review of an order of removal entered or issued 18 under any provision of this chapter, except as provided in 19 subsection (e) of this section. 20 chapter, in every provision that limits or eliminates 21 judicial review or jurisdiction to review, the terms 22 judicial review and jurisdiction to review include 23 habeas corpus review pursuant to section 2241 of Title 28, 24 or any other habeas corpus provision, sections 1361 and 1651 25 of such title, and review pursuant to any other provision of 26 law (statutory or nonstatutory). For purposes of this 27 28 8 U.S.C. § 1252(a)(5)(emphasis added); see also 8 U.S.C. § 2 1 1252(a)(2)(D) ( Nothing in subparagraph (B) or (C), or in any other 2 provision of this chapter (other than this section) which limits or 3 eliminates judicial review, shall be construed as precluding review of 4 constitutional claims or questions of law raised upon a petition for 5 review filed with an appropriate court of appeals in accordance with 6 this section. ). 7 date of the REAL ID Act, the district court plainly lack[s] 8 jurisdiction to consider petitioner s claim he is a United States 9 citizen and the Government has no power to remove him. Thus, for habeas petitions filed after the effective Iasu, 511 F.3d 10 at 887-88; Momeni, 521 F.3d at 1095. 11 matter jurisdiction to consider petitioner s claims, the habeas 12 petition should be summarily dismissed.1 13 ORDER 14 15 Since this Court lacks subject IT IS ORDERED that Judgment shall be entered summarily dismissing the habeas corpus petition for lack of subject matter jurisdiction. 16 17 18 DATE: October 30, 2009 PERCY ANDERSON UNITED STATES DISTRICT JUDGE 19 PRESENTED BY: 20 DATE: October 30, 2009 21 22 /s/ Rosalyn M. Chapman ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 Local Rule 72-3.2 provides that if it plainly appears from the [habeas] petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge. Local Rule 723.2. R&R-MDO\09-7612.mdo 10/30/09 3

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