WILLIAN RAUDA V. DAVID JENNINGS, ET AL, No. 21-16062 (9th Cir. 2022)
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Plaintiff, 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, Plaintiff moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Plaintiff filed a habeas petition with the district 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 Plaintiff subsequently-filed motion for a TRO, and the government voluntarily agreed to stay removal up to and including August 13, 2021.
The Ninth Circuit filed: 1) an order amending the opinion filed August 13, 2021; and 2) an amended opinion affirming the district court’s denial of Plaintiff’s request for a temporary restraining order (TRO) to prevent the government from removing him. The panel concluded that the district court correctly determined that jurisdiction was barred by 8 U.S.C. Section 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 rejected Plaintiff’s claim that the Constitution’s Suspension Clause preserves judicial review here.
Court Description: Immigration / Habeas Corpus. The panel filed: 1) an order amending the opinion filed August 13, 2021; and 2) an amended opinion 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. In the amended opinion, the panel: (1) concluded that the district court correctly determined that it lacked jurisdiction under 8 U.S.C. § 1252(g); (2) concluded that neither the Suspension Clause nor the Due Process Clause preserve judicial review; and (3) directed the district court to dismiss * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). MATIAS RAUDA V. JENNINGS 3 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 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 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 4 MATIAS RAUDA V. JENNINGS 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. 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. The panel also rejected Matias’s argument that § 1252(g) violates due process by denying review of his claims. The panel explained that § 1252(g) does not immunize his claims from review—it merely prevents him from filing a habeas petition challenging the discretion to execute a valid order of removal while his motion to reopen is pending. Instead, he must wait to raise his claims in a petition for review of a final order. Noting that an alien is entitled to file a motion to reopen and seek a stay of removal from the agency until that motion is decided, the panel explained that this court lacks jurisdiction to intervene if the stay is denied precisely because an alien’s presence in the United States is not required for adjudication of the motion to reopen. The panel concluded that this statutorily provided process satisfies any demands of the Due Process Clause when an alien subject to a valid, final order of removal seeks to reopen his removal proceedings. MATIAS RAUDA V. JENNINGS 5 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 and courts would essentially grant automatic stays of removal pending the BIA’s consideration of motions to reopen.
This opinion or order relates to an opinion or order originally issued on August 13, 2021.
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