Salmeron Corrales v. Sessions, No. 3:2018cv05069 - Document 14 (N.D. Cal. 2018)

Court Description: ORDER DENYING 1 MOTION FOR EMERGENCY STAY OF REMOVAL AND DISMISSING ACTION FOR LACK OF JURISDICTION. Signed by Judge Alsup on 9/19/2018. (whalc1, COURT STAFF) (Filed on 9/19/2018)
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Salmeron Corrales v. Sessions Doc. 14 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 For the Northern District of California United States District Court 9 10 GERARDO SALMERON CORRALES, 11 Petitioner, 12 13 14 15 No. C 18-05069 WHA v. ORDER DENYING MOTION FOR EMERGENCY STAY OF REMOVAL AND DISMISSING ACTION FOR LACK OF JURISDICTION JEFFERSON B. SESSIONS, III, in his official capacity as United States Attorney General, Respondent. / 16 17 INTRODUCTION 18 Petitioner moves for a stay of removal pending the Board of Immigration Appeal’s 19 decision on his motion to reopen his removal proceedings. For the reasons explained below, the 20 motion is DENIED and this action is DISMISSED for lack of subject-matter jurisdiction. 21 22 STATEMENT Petitioner Gerardo Salmeron Corrales, a 22-year-old Mexican immigrant, entered the 23 United States without inspection at the age of three. In 2015, Immigration and Customs 24 Enforcement placed petitioner in removal proceedings after he was convicted of misdemeanor 25 possession of Xanax (a controlled substance). During petitioner’s removal proceedings, he 26 applied for asylum and relief from removal based largely on his status as a paraplegic, arguing 27 that returning to Mexico would put him at risk of being targeted by various criminal groups. 28 Although petitioner also testified during his asylum hearing that drug cartels in Mexico had 1 murdered his aunt and cousin, petitioner had no further information regarding those murders at 2 the time (Dkt. Nos. 1, 9-1 Exhs. A–C). 3 4 grounds that petitioner failed to articulate a cognizable ground for relief and further failed to 5 prove an exception to the one-year filing deadline under 8 U.S.C. § 208(a)(2)(B). The 6 immigration judge also ordered petitioner removed to Mexico. Petitioner timely appealed to the 7 BIA. While that appeal was pending, the immigration judge granted petitioner bond in the 8 amount of $10,000 (Dkt. Nos. 1-1 at 108, 9-1 Exhs. D–E). For the Northern District of California 9 United States District Court In June 2015, the immigration judge denied petitioner’s asylum application on the The BIA dismissed petitioner’s appeal in September 2015. Petitioner then sought 10 review by our court of appeals, which in September 2017 remanded the case to the BIA to 11 determine whether petitioner’s membership in his family could serve as a cognizable social 12 group for purposes of petitioner’s asylum application (Dkt. No. 10 Exhs. G–I). 13 Also in September 2017, law enforcement arrested petitioner (who had since been 14 released on bond) for crimes related to possession of a firearm and participation in a criminal 15 street gang. In March 2018, following reconsideration of petitioner’s asylum claim, the BIA 16 again dismissed petitioner’s appeal. Although the BIA indicated that persecution on account of 17 one’s membership in their family could be the basis for asylum, petitioner had not established 18 that any criminal group in Mexico held any animus towards petitioner’s family or that petitioner 19 had a reasonable fear of persecution. Petitioner did not seek judicial review of that decision 20 (Dkt. Nos. 9-1 Exhs. I–K, 10 Exh. J). 21 At some point, petitioner learned through his mother and extended family in Mexico the 22 reason for the murder of his aunt and cousin. Specifically, petitioner learned that his uncle had 23 been involved with a drug-trafficking group in Mexico and had slept with the wife of one of the 24 group’s members. The aggrieved group member then threatened to kill petitioner’s uncle’s 25 entire family, following which petitioner’s aunt and cousin were brutally murdered. Moreover, 26 while petitioner’s various appeals were pending, the drug-trafficking group kidnaped, tortured, 27 and murdered petitioner’s uncle (Dkt. Nos. 1-10, 9-1, 10 Exh. K). 28 2 1 Also, following petitioner’s release from immigration detention, petitioner married 2 Monica Rodriguez, a United States citizen who suffers from bipolar disorder and relies on 3 petitioner’s support to deal with her mental illness. Petitioner has since submitted an 4 application for cancellation of removal based on his relationship with his wife (Dkt. Nos. 1-11, 5 10 Exhs. L–N). 6 7 the Mexican Consulate of petitioner’s physical disability and impending removal. The Mexican 8 Consulate then interviewed petitioner to coordinate petitioner’s removal, recommended a 9 commercial flight to Acapulco, Guerrero, and informed ICE that petitioner’s father agreed to 10 11 For the Northern District of California United States District Court ICE re-arrested petitioner in August 2018 to effectuate the removal process and notified care for petitioner upon his arrival in Mexico (Dkt. No. 9-1 Exh. G). On August 3, petitioner asked the BIA to reopen his removal proceedings and requested 12 an emergency stay of removal. On August 19, petitioner filed the instant emergency application 13 for a stay of removal pending the BIA’s adjudication of his motion to reopen. The following 14 day, an order stayed petitioner’s removal to allow time for briefing on the emergency 15 application. On August 21, the BIA denied petitioner’s request for a stay of removal, 16 concluding that “there is little likelihood” that the motion to reopen will be granted. This order 17 follows full briefing and oral argument (Dkt. Nos. 1, 5, 7, 10 Exh. O). 18 19 ANALYSIS Pursuant to the REAL ID Act of 2005, district courts lack habeas jurisdiction to review 20 final orders of removal. Rather, such review is vested exclusively in the circuit courts. 8 21 U.S.C. § 1252(a)(5). Moreover, Section 1252(g) states that “no court shall have jurisdiction to 22 hear any cause or claim by or on behalf of any alien arising from the decision or action by the 23 Attorney General to commence proceedings, adjudicate cases, or execute removal orders 24 against any alien under this chapter.” Accordingly, this order must decide whether or not 25 petitioner’s motion “aris[es] from” the decision to execute a removal order against him. 26 The government argues that Section 1252 divests district courts of subject-matter 27 jurisdiction to review motions like petitioner’s motion because they “arise from” the execution 28 of removal orders. Petitioner, in turn, contends that Section 1252 does not apply in the instant 3 1 case because he is “not challenging the Attorney General’s discretionary decision to execute his 2 order of removal,” but instead merely requests an opportunity to meaningfully present his claim 3 for relief prior to his removal from the country. This order concludes that the government has 4 the stronger argument. For the Northern District of California United States District Court 5 Our court of appeals has not directly addressed whether or not district courts have 6 jurisdiction over a motion to stay removal pending the BIA’s resolution of a motion to reopen. 7 Courts in this district are split on the issue. Compare Ma v. Holder, 860 F. Supp. 2d 1048, 1062 8 (N.D. Cal. 2012) (Judge Edward Davila), and De Leon v. Napolitano, No. C 09-3644, 2009 WL 9 4823358 (N.D. Cal. Dec. 10, 2009) (Judge James Ware), with Sied v. Nielson, No. C 17-6785, 10 2018 WL 1142202 (N.D. Cal. Mar. 02, 2018) (Magistrate Judge Laurel Beeler). Nevertheless, 11 two prior decisions by the undersigned warrant discussion. In Arce v. Holder, No. C 12-04063 12 WHA, 2012 WL 3276994 (N.D. Cal. Aug. 9, 2012), the habeas petitioner sought a stay of 13 removal pending the BIA’s ruling on his application to reopen his asylum claim. The petitioner 14 had not moved for a stay a removal with the BIA and accordingly sought a stay of removal from 15 the district court in the first instance. Because the petitioner’s habeas petition “clearly [sought] 16 to ‘halt the execution of the final order of removal arising from a proceeding brought in 17 connection with Petitioner’s removal,” the Court found that it lacked jurisdiction over the 18 petitioner’s claims. Id. at *2 (citing Rosales v. Aitken, 2011 WL 4412654, at *3 (N.D. Cal. 19 Sept. 21, 2011) (Judge Lucy Koh). 20 In Gbotoe v. Jennings, No. C 17-06819 WHA, 2017 WL 6039713 (N.D. Cal. Dec. 6, 21 2017), by contrast, the BIA had already denied the petitioner’s application for a stay of removal 22 by the time the petitioner filed his habeas petition in the district court. In light of the BIA’s 23 denial of a stay without ruling on the simultaneously-filed motion to reopen, the petitioner’s 24 habeas petition requested a stay of removal pending the BIA’s decision on the motion to reopen. 25 The undersigned judge distinguished the petitioner’s request from that presented in Arce. As an 26 initial matter, the petitioner could not appeal the BIA’s interim order denying a stay of removal 27 directly to our court of appeals, Shaboyan v. Holder, 652 F.3d 988, 911 (9th Cir. 2011), and so 28 declining jurisdiction over the petitioner’s claims would have made the BIA’s order effectively 4 1 unreviewable. Moreover, because the petitioner’s challenge to the BIA’s denial of a stay was 2 collateral to the petitioner’s removal order, he did not seek direct review over his removal order. 3 The undersigned judge accordingly rejected the government’s argument that Section 1252 4 divested the district court of jurisdiction. For the Northern District of California United States District Court 5 The facts of the instant action are more akin to those in Arce than those in Gbotoe. 6 Petitioner’s motion, which petitioner filed while his application to stay was still pending before 7 the BIA, clearly challenges “the decision or action” to “execute removal orders against” him. 8 8 U.S.C. § 1252(g). Although the BIA denied petitioner’s application for a stay after petitioner 9 filed the instant motion, petitioner’s cursory request in his reply brief that the undersigned 10 consider the BIA’s denial of the stay “as well” does not sufficiently raise the issue for review. 11 Petitioner fails to explain, for example, whether or how the BIA erred in denying his requested 12 stay. Unlike in Gbotoe, petitioner’s motion does not challenge events that occurred after the 13 removal order was entered, and accordingly the Court lacks subject-matter jurisdiction to hear 14 petitioner’s request. 15 Contrary to petitioner, application of the REAL ID Act here does not violate the 16 Suspension Clause. The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas 17 Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety 18 may require it.” U.S. CONST. art. I, § 9, cl. 2. The Supreme Court has held, however, that “the 19 substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality 20 of a person’s detention does not constitute a suspension of the writ of habeas corpus.” Swain v. 21 Pressley, 430 U.S. 372, 381 (1977). If a substitute remedy provides the same scope of review 22 as a habeas remedy, it is adequate and effective. Id. at 381–82. Our court of appeals has 23 accordingly found that the REAL ID Act does not violate the Suspension Clause because the 24 statute “provides an ‘adequate substitute’ by allowing judicial review of the final order of 25 removal through the courts of appeals.” Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007). 26 Petitioner argues that the administrative review process does not provide an adequate 27 means by which he may petition our court of appeals for review of his removal order because 28 such review will likely occur after his removal to Mexico. Not so. Removed aliens may 5 1 continue to pursue their cases even after removal. Reyes-Torres v. Holder, 645 F.3d 1073, 2 1074–75 (9th Cir. 2011). Petitioner, who is represented by counsel, has failed to show that he 3 would be unable to contest his case in our court of appeals from Mexico following a merits 4 decision by the BIA. For this same reason, this order rejects petitioner’s summary argument 5 that application of the REAL ID Act in this case would violate the Due Process Clause. 6 7 8 CONCLUSION Because this Court lacks jurisdiction, the motion for a stay of removal is DENIED. The government’s request for dismissal is GRANTED. 9 IT IS SO ORDERED. 11 Dated: September 19, 2018. For the Northern District of California United States District Court 10 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6