Rauda v. Jennings, No. 21-16062 (9th Cir. 2021)
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Matias, a native of El Salvador, unlawfully entered the U.S. in 2014. El Salvadoran authorities considered him a member of MS-13, a violent gang. In Maryland, Matias pleaded guilty to assault in the first degree after being involved in a shooting that authorities determined was retaliation for MS-13 gang activity, and identified Matias as an MS-13 “affiliate.” ICE detained Matias in 2018. Matias requested to be housed with a gang aligned with MS-13. An IJ denied him bond and later denied Matias relief under the Convention Against Torture (CAT) and ordered him removed. The Board of Immigration Appeals dismissed his appeal. The Ninth Circuit denied his petition for review in 2021.
Matias moved the BIA to reopen his case so that it could consider “new developments” regarding his request for CAT relief: claimed political changes in El Salvador and an alleged text from an MS-13 gang member labeling him a “snitch” and saying he will be killed if he returns to El Salvador. The BIA denied his request for an emergency stay. Matias filed a habeas petition, asking the court to enjoin the government from removing him until the BIA ruled on his motion to reopen. The district court denied his motion. The Ninth Circuit agreed with the district court, which denied Matias’s motion for a temporary restraining order, determining that 8 U.S.C. 1252(g)’s jurisdictional limits barred his claims.
Court Description: Immigration / Habeas Corpus. Affirming the district court’s denial of Willian Matias Rauda’s request for a temporary restraining order (TRO) to prevent the government from removing him, the panel: (1) concluded that the district court correctly determined that it lacked jurisdiction under 8 U.S.C. § 1252(g); (2) concluded that Matias’s Suspension Clause argument failed because his requested relief fell outside of the scope of habeas; and (3) directed the district court to dismiss Matias’s petition. In 2018, Matias, a native of El Salvador, was detained by immigration authorities. An immigration judge (IJ) denied bond, and an IJ later denied him relief under the Convention Against Torture and ordered his removal. The Board of Immigration Appeals dismissed his appeal, and this court denied his petition for review. In April 2021, Matias moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Matias filed a habeas petition with the district MATIAS RAUDA V. JENNINGS 3 court, which denied his motion to enjoin his removal until his motion to reopen and habeas petition were decided. On June 14, 2021, the district court denied Matias’s subsequently-filed motion for a TRO, and the government voluntarily agreed to stay removal up to and including August 13, 2021. The panel observed that the motion before it was Matias’s motion for stay pending appeal, but given the decisive jurisdictional issue, the panel reached the merits. The panel concluded that the district court correctly determined that jurisdiction was barred by 8 U.S.C. § 1252(g), which provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The panel explained that the execution of his removal order was precisely what Matias challenged here, and that Congress could have chosen to provide petitioners like Matias with access to judicial review of non-final immigration orders, but did not do so. The panel explained that the conclusion that it lacked jurisdiction was reinforced by the consideration that, as explained in Shaboyan v. Holder, 652 F.3d 988 (9th Cir. 2011), this court may only review final orders, and the BIA’s interim order denying a stay of removal pending resolution of a motion to reopen is not such an order. Noting that Shaboyan involved a petition for review, while this case involved a habeas petition, the panel explained that Shaboyan foreclosed review (direct or indirect) of the BIA’s denial of his stay request. 4 MATIAS RAUDA V. JENNINGS The panel rejected Matias’s claim that the Constitution’s Suspension Clause preserves judicial review here. The panel relied on DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), in which the Supreme Court determined that habeas relief applies to petitioners seeking release from executive detention, not to those seeking to remain in the United States. Because Matias was not seeking a remedy for unlawful detention, the panel concluded that only an extreme and unwarranted expansion of the habeas writ would encompass his requested relief. Matias attempted to distinguish his case from Thuraissigiam on the ground that he made it farther than 25 yards into the United States before being apprehended. The panel explained that the Supreme Court rejected essentially the same argument in Thuraissigiam, where the petitioner argued he was entitled to more process than an applicant for admission because he succeeded in making it 25 yards into the country. The Supreme Court rejected that argument, determining that it would undermine the sovereign prerogative of governing admission to the country and create a perverse incentive to enter at an unlawful location. Thus, the panel concluded that Matias was entitled to the process afforded by statute, but no more. The panel also observed that the process provided here was ample. Addressing Matias’s request that the court grant him a stay because he would be severely harmed or killed if removed to El Salvador, the panel explained that, if a court could inject itself into the agency’s process and force (another) stay because a removable alien newly represented that he would be severely injured or die when removed, all similarly situated petitioners would be incentivized to demand a stay. The panel explained that, if that were case, it seems foreseeable that this would become the new norm MATIAS RAUDA V. JENNINGS 5 and courts would essentially grant automatic stays of removal pending the BIA’s consideration of motions to reopen. Finally, the panel noted that Matias is not required to be in the United States for the adjudication of his motion to take place. Rather, he would continue to receive the statutorily required process even when he is removed, just as Congress designed.
The court issued a subsequent related opinion or order on December 12, 2022.
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