Arce v. Holder et al
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND EMERGENCY REQUEST FOR STAY AND GRANTING MOTION TO DISMISS BASED ON LACK OF JURISDICTION by Hon. William Alsup granting 6 Motion to Dismiss for Lack of Jurisdiction.(whalc2, COURT STAFF) (Filed on 8/9/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EVER V. ARCE,
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For the Northern District of California
United States District Court
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No. C 12-04063 WHA
Petitioner,
v.
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
AND EMERGENCY REQUEST
FOR STAY AND GRANTING
MOTION TO DISMISS BASED ON
LACK OF JURISDICTION
ERIC HOLDER, U.S. Attorney General, JANET
NAPOLITANO, Secretary of the Department of
Homeland Security, TIMOTHY AIKEN, Field
Director of Detention and Removal Immigration
and Customs Enforcement,
Respondents.
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/
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Petitioner Ever Vicente Arce is a native and citizen of El Salvador. He entered the
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United States without inspection in September 2003. On August 8, 2006, the Department of
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Homeland Security issued to petitioner a notice to appear for removal proceedings. In those
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proceedings, petitioner sought asylum and withholding of removal, claiming he feared
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persecution in El Salvador because he resisted gang recruitment and gang members wrongly
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believed his family was involved in the murder of a gang member. On January 29, 2008, the
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immigration judge denied petitioner’s applications for relief but granted his application for
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voluntary departure (Pet. ¶¶ 12, 17).
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On February 24, 2009, the Board of Immigration Appeals denied petitioner’s appeal of
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the immigration judge’s decision (id. ¶ 18). On March 2, 2012, our court of appeals denied
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petitioner’s petition for review on the grounds that he had not shown a nexus to a protected
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ground (Proctor Exh. A). On June 25, 2012, Immigration and Customs Enforcement notified
petitioner that he was to surrender into custody on July 24, 2012 (Proctor Exh. B). On July 30,
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2012, petitioner moved the BIA to reopen his case (Pet. ¶ 20). As stated at today’s hearing,
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petitioner did not request that the BIA stay his deportation. The basis for the motion to reopen is
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that there are changed circumstances, namely the perception that petitioner is wealthy, his long
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residence in the United States, and growing gang violence in El Salvador, that will enable
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petitioner to establish eligibility for asylum. On July 31, 2012, petitioner submitted a copy to
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DHS of an itinerary for a flight he purchased for himself showing a departing flight from San
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Francisco on August 7, 2012, to San Salvador, El Salvador.
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On August 2, 2012, petitioner filed the instant petition for writ of habeas corpus and
emergency request for stay of deportation. The petition brings a claim for violation of the
Immigration and Nationality Act, alleging that “deportation prior to the Board’s adjudication of
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For the Northern District of California
United States District Court
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his motion to reopen would violate INA §§ 208 and 241(b)(3), which require that an alien who
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has a reasonable fear of returning to his country on account of statutorily protected ground be
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given a reasonable opportunity to present his case” (Pet. ¶ 27). His second claim alleges that
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deportation prior to the Board’s adjudication of his motion to reopen would violate the
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Convention Against Torture (id. ¶ 29). Petitioner seeks an order granting the petition and an
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order “enjoining respondents from removing petitioner from the United States until the Board
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rules on petitioner’s motion to reopen” (Dkt. No. 1 at 9).
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A hearing was held on the instant petition on August 6, 2012, and a briefing schedule set
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for a motion to dismiss. The government now moves to dismiss the petition for lack of
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jurisdiction, arguing this Court lacks jurisdiction over petitioner’s claims because he is not in
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custody and because the claims are barred by the REAL ID Act’s jurisdiction-stripping
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provisions. Because this order holds that the REAL ID Act’s jurisdiction-stripping provisions
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leave this Court without jurisdiction over petitioner’s claims, it need not decide the issue of
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whether petitioner is in custody.
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The REAL ID Act of 2005, stripped district courts of habeas jurisdiction over final orders
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of deportation or removal and vested jurisdiction to review such orders exclusively in the court
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of appeals. In relevant part, 8 U.S.C. 1252(a)(5) provides:
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Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
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habeas corpus provision, and sections 1361 and 1651 of such title,
a petition for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive means
for judicial review of an order of removal entered or issued under
any provision of this chapter.
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In addition, Section 1252(g) states, “no court shall have jurisdiction to hear any cause or
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claim by or on behalf of any alien arising from the decision or action by the Attorney General to
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commence proceedings, adjudicate cases, or execute removal orders against any alien under this
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chapter.” Thus, circuit courts are the “sole” judicial body vested with the power to review
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challenges to final orders of deportation, exclusion, or removal. See Alvarez-Barajas v.
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Gonzalez, 418 F.3d 1050, 1052 (9th Cir. 2005).
Here, petitioner seeks an order granting his petition for writ of habeas corpus and staying
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For the Northern District of California
United States District Court
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his removal. It is clear that petitioner seeks to “halt the execution of the final order[] of removal
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arising from a proceeding brought in connection with Petitioner’s removal, and therefore this
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Court lacks jurisdiction.” Rosales v. Aitken, 2011 WL 4412654, at *3 (N.D. Cal. Sept. 21, 2011)
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(Koh, J.) (quoting DeLeon v. Napolitano, 2009 WL 4823358, at *3 (N.D. Cal. Dec. 10, 2009)
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(Ware, J.). See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)
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(holding that Section 1252(g) precludes review of decisions to commence proceedings,
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adjudicate cases, or execute removal orders); Ma v. Holder, 2012 WL 1755840, at *8–10 (N.D.
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Cal. May 16, 2012) (Davila, J.) (finding, pursuant to Section 1252(g), no jurisdiction to stay
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removal pending decision on motion to reopen).
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Petitioner argues that district courts have not been stripped of jurisdiction over “collateral
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matters that do not implicate final orders of removal,” citing Singh v. Gonzalez, 499 F.3d 969
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(9th Cir. 2007) (Reply Br. 2). Petitioner’s reliance on Singh is misplaced. In Singh, our court of
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appeals held that the narrow claim of ineffective assistance of counsel by an alien, in connection
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with his attorney’s post-administrative failure to file a timely petition with the court of appeals
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for review of the BIA’s order of removal, could be raised in federal district court
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notwithstanding the jurisdiction-stripping provisions of the REAL ID Act. The court reasoned
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that “Singh’s only remedy would be the restarting of the thirty-day period for the filing of a
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petition for review with this court . . . In other words, a successful habeas petition in this case
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will lead to nothing more than ‘a day in court’ for Singh.” Id. at 979. Therefore, the court
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concluded that Singh’s claim for ineffective assistance of counsel could not be construed as
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seeking judicial review of his final order of removal. Here, however, a successful habeas
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petition would directly lead to a stay of execution of a pending order of deportation. Singh is not
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controlling here.
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Because this Court lacks jurisdiction, the petition and request for stay are DENIED, and
the motion to dismiss, for the reasons stated herein, is GRANTED.
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IT IS SO ORDERED.
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For the Northern District of California
United States District Court
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Dated: August 9, 2012.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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