Paz-Samora et al v. Archambeault, No. 3:2018cv02187 - Document 13 (S.D. Cal. 2018)
Court Description: ORDER Denying 6 Petitioner's Emergency Motion for Stay and Dismissing Case for Lack of Subject Matter Jurisdiction. Signed by Judge Gonzalo P. Curiel on 11/5/18.(dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 HEIDI PAZ-ZAMORA, GILMA ZULETA DE PAZ, 15 16 17 v. GREGORY ARCHAMBEAULT, Field Office Direction, Dept. of Homeland Security, Immigration and Custom Enforcement , Defendant. 18 19 On October 29, 2018, Petitioner Gilma Zuleta De Paz (“Petitioner” or “Zuleta”) 20 21 22 23 24 25 ORDER DENYING PETITIONER’S EMERGENCY MOTION FOR STAY AND DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICITON Plaintiffs, 13 14 Case No.: 18cv2187-GPC(KSC) filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 along with an amended emergency motion for stay of removal pending petition for writ of habeas corpus.1 (Dkt. Nos. 5, 6.) The government filed a response on the emergency motion for stay on October 29, 2018. (Dkt. No. 9.) Petitioner filed a late reply on November 1, 2018. (Dkt. No. 11.) A hearing was held on November, 2, 2018. (Dkt. 26 27 1 28 Along with the amended petition for writ of habeas corpus, Petitioner Heidi Paz-Zamora filed a notice of voluntary dismissal of the petition. (Dkt. No. 7.) 1 18cv2187-GPC(KSC) 1 No. 12.) Willard Bakeman, Esq. appeared on behalf of Petitioner and Samuel Bettwy, 2 Esq. appeared on behalf of Respondent. 3 Background Petitioner is a native and citizen of Guatemala. (Dkt. No. 9-1, Ex. 12.) On August 4 5 28, 2018, she attempted to enter the United States without authorization by crossing the 6 United States-Mexico border in an area just east of the southbound pedestrian walkway at 7 the San Ysidro, California port of entry. (Id., Ex. 9.) A Border Patrol Agent spotted her, 8 and when he approached her, she tried to evade apprehension by running back into 9 Mexico. (Id.) The Border Patrol Agent arrested Zuleta and had her transported to the 10 Chula Vista Border Patrol station for processing to be prosecuted by the U.S. Attorney’s 11 Office for illegal entry under 8 U.S.C. § 1325. (Id., Exs. 3-4, 24-25.) 12 During the interview, she did not claim fear or persecution if she returned to 13 Guatemala and when Zuleta was specifically asked whether she had any fear of returning 14 to Guatemala, she refused to answer without an attorney present. (Id., Exs. 4, 13, 14.) 15 She was read her Miranda rights, and she invoked her right to remain silent, (id., Ex. 8), 16 and accepted the opportunity to speak with a Guatemalan consular representative. (Id., 17 Exs. 3, 8, 16.) 18 On August 29, 2018, a criminal complaint was filed against Zuleta for violation of 19 8 U.S.C. § 1325(a)(2) for knowingly eluding examination and inspection by immigration 20 officers in United States v. Zuleta, No. 18mj21231, Dkt. No. 1, (S.D. Cal.). On August 21 29, 2018, Zuleta was bonded out of criminal pretrial custody and released to the custody 22 of U.S. Immigration and Customs Enforcement (“ICE”), incident to her expedited 23 removal proceedings pursuant to 8 U.S.C. § 1225(b)(1). (Dkt. No. 9-1, Ex. 26.) 24 25 On September 21, 2018, ICE obtained a temporary travel pass for Zuleta from the government of Guatemala. (Id., Ex. 36.) On the same day, Zuleta filed the instant 26 27 28 2 The page numbers are based on the Respondent’s page numbers on its exhibits. 2 18cv2187-GPC(KSC) 1 petition for writ of habeas corpus and sought an emergency stay of removal. (Dkt. No. 2 1.) On September 24, 2018, Petitioner withdrew her motion to stay removal.3 (Dkt. No. 3 4.) 4 On October 3, 2018, the Asylum Officer conducted a two-hour credible fear 5 interview. (Id., Exs. 37-43.) On October 4, 2018, the Asylum Officer made a negative 6 credible fear determination and written analysis. (Id., Exs. 44-52.) On October 9, 2018, 7 the Supervisor Asylum Officer approved the Asylum Officer’s determination. (Id., Ex. 8 48.) On October 16, 2018, the Asylum Officer read and explained his negative credible 9 fear determination to Zuleta in Spanish. (Id., Exs. 53-54.) She sought review by the Immigration Judge (“IJ”) of the negative credible fear 10 11 determination. (Id., Ex. 53.); see 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 12 1003.42(d). On October 17, 2018, the Asylum Officer’s decision was referred to an IJ 13 for review. (Id., Exs. 54-56.) On October 19, 2018, IJ Olga Attia conducted a review of 14 the negative credible fear determination and heard Zuleta’s testimony. (Id., Ex. 57.) IJ 15 Attia affirmed the Asylum Officer’s determination and returned the case to ICE for 16 removal. (Id.) 17 The amended emergency motion for stay of removal states that Zuleta is set to be 18 removed on October 30, 2018. (Dkt. No. 6 at 1.) According to Respondent’s counsel, 19 ICE agreed to postpone the removal Zuleta until November 6, 2018, to allow the Court an 20 opportunity to rule on Zuleta’s motion to stay removal. (Dkt. No. 9 at 5.) 21 //// 22 //// 23 //// 24 25 26 27 28 3 According to counsel for Respondent, in her initial petition, Zuleta alleged that ICE had refused to afford her a credible fear determination before a USCIS Asylum Officer. (Dkt. No. 9 at 3.) Respondent’s counsel immediately contacted the appropriate ICE contacts and learned that there was no record that Zuleta or her attorney had ever asserted a fear of persecution or fear of returning to Guatemala or expressed a desire to apply for asylum. (Id.) However, based on the allegations in the habeas petition, ICE referred Zuleta to USCIS for a credible fear interview. (Id.) 3 18cv2187-GPC(KSC) 1 Discussion 2 A. Motion to Stay Removal Pending Ruling on Habeas Petition 3 The traditional stay factors apply to a motion to stay an alien’s removal pending 4 judicial review and include “(1) whether the stay applicant has made a strong showing 5 that he is likely to succeed on the merits; (2) whether the applicant will be irreparably 6 injured absent a stay; (3) whether issuance of the stay will substantially injure the other 7 parties interested in the proceeding; and (4) where the public interest lies.” Nken v. 8 Holder, 556 U.S. 418, 434 (2009) (noting “substantial overlap” between factors 9 governing preliminary injunctions under Winter4 and stays). The first two factors are the 10 most important. Id. Once the first two factors are met, the third and fourth factors, harm 11 to the opposing party and the public interest, merge when the Government is the 12 opposing party. Id. at 435. “There is always a public interest in prompt execution of 13 removal orders.” Id. at 436. If Petitioner fails to demonstrate the threshold issue of 14 likelihood of success on the merits, the court does not need to consider the other factors. 15 See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (addressing Winter factors 16 for preliminary injunction). 17 B. Likelihood of Success on the Merits 18 The government solely argues that Petitioner will not likely succeed on the merits 19 because the Court lacks jurisdiction over the expedited removal order and the negative 20 credible fear determination and Petitioner also fails to state a claim. In reply, Petitioner 21 does not address the government’s arguments on the Court’s subject matter jurisdiction or 22 substantively challenge whether she has failed to state a claim. 23 24 25 26 27 4 28 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). 4 18cv2187-GPC(KSC) 1 Except under certain limited exceptions under 8 U.S.C. § 1252(e), judicial review 2 of a removal order is explicitly barred by statute. See 8 U.S.C. § 1252(a)(2)(A)(i).5 3 Under § 1252(e), habeas corpus review of an expedited removal order is limited to 4 determining (1) “whether the petition is an alien”; (2) “whether the petitioner was ordered 5 removed under such section” and (3) “whether the petitioner can prove by a 6 preponderance of the evidence that the petitioner is an alien lawfully admitted for 7 permanent residence, [or is a refugee or has been granted non-terminated asylum].” 8 8 U.S.C. § 1252(e)(2); Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1139 9 (9th Cir. 2008). 10 Here, Petitioner does not claim that the Court may review her expedited removal 11 order under any of the limited exceptions. Instead, Petitioner argues that the Court has 12 jurisdiction because she alleges a due process violation by the conclusion reached by 13 Asylum Officer. However, she fails to support her argument with legal authority and 14 cases have held a court’s jurisdiction to review an expedited removal order is limited to 15 those under § 1252(e). See Castro v. United States Dep’t of Homeland Sec., 835 F.3d 16 422, (3d Cir. 2016) (“§ 1252 makes abundantly clear that if jurisdiction exists to review 17 any claim related to an expedited removal order, it exists only under subsection (e) of the 18 statute.”) Moreover, it appears she is challenging the evidentiary sufficiency of her 19 negative credible fear determination but the Court is barred from reweighing the evidence 20 in a credible fear determination. See 8 U.S.C. § 1252(a)(2)(A)(iii); Rais v. Holder, 768 21 F.3d 453, 462 n. 17 (6th Cir. 2014) (“[A] petitioner cannot create jurisdiction by alleging 22 23 24 25 26 27 28 5 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of [expedited] removal pursuant to section 1225(b)(1) of this title . . . 8 U.S.C. § 1252(a)(2)(A)(i) 5 18cv2187-GPC(KSC) 1 nothing more than a challenge to the [administrative agency's] discretionary and fact- 2 finding exercises cloaked as a question of law.”) (internal quotation marks omitted). 3 Therefore, the Court concludes it lacks jurisdiction to consider her claim. See 4 Thuraissigiam v. United States Dep’t of Homeland Sec., 287 F. Supp. 3d 1077, 1082 5 (S.D. Cal. 2018) (“the Court follows the clear precedent set forth by the Ninth Circuit and 6 its sister circuits and concludes that it does not have subject matter jurisdiction to hear 7 Petitioner’s claims challenging his removal order.”) (citing Rodaz v. Lynch, 656 Fed. 8 App’x. 860, 861 (9th Cir. 2016) (“To the extent [petitioner] challenges the underlying 9 2010 expedited removal order, we lack jurisdiction to consider this collateral attack.”)). 10 Furthermore, the statute provides that “no court shall have jurisdiction to review . . 11 . (iii) the application of such section to individual aliens, including the [credible fear] 12 determination made under section 1225(b)(1)(B) of this title . . . .” 8 U.S.C. § 13 1252(a)(2)(iii); Castro v. United States Dep’t of Homeland Security, 163 F. Supp. 3d 157, 14 165-68 (E.D. Pa. 2016) (district court lacks jurisdiction to consider credible fear 15 determination). If the Asylum Officer, and upon review, the IJ both determine that 16 credible fear has not been established, the alien is ordered removed from the United 17 States pursuant to the expedited removal order. 8 U.S.C. § 1225(b)(1)(B)(iii). The alien 18 is not entitled to any further review of the negative credible fear determination from 19 either the Board of Immigration Appeals (“BIA”) or federal courts. See 8 U.S.C. § 20 1252(a)(2)(A)(iii); 8 C.F.R. § 1003.42(f) (“No appeal shall lie from a review of an 21 adverse credible fear determination made by an immigration judge.”). 22 Therefore, the Court concludes it does not have subject matter jurisdiction to 23 consider Petitioner’s expedited removal order and her negative credible fear 24 determination, and consequently, Petitioner has failed to demonstrate a likelihood of 25 success on the merits. 26 27 Lastly, Respondent additionally argues that Petitioner has failed to state a claim under 28 U.S.C. § 2241. 28 6 18cv2187-GPC(KSC) 1 Under 28 U.S.C. § 2241, the district courts may grant writs of habeas corpus to 2 prisoners “in custody in violation of the Constitution or laws or treaties of the United 3 States[.]” 28 U.S.C. § 2241(c)(3). 4 Here, the Petition alleges a due process violation for Respondent’s failure to 5 recognize a particular social group, “married women in Guatemala who are unable to 6 leave their relationship”, in contravention to the ruling in Matter of A-R-C-G-, 26 I. & N. 7 Dec. 388 (BIA 2014). Because the Attorney General overruled Matter of A-R-C-G- in 8 Matter of A-B-, 27 I. & N. Dec. 316 (2018) on June 11, 2018, Petitioner argues that 9 Court should “uphold” the decision in Matter of A-R-C-G- and order her another credible 10 fear interview. (Dkt. No. 5 at 3.) In her reply, Petitioner argues, for the first time, that 11 although there is no case law that spousal rape is a ground for granting a credible fear 12 interview, spousal rape should be an “even more narrowly defined subgroup” than what 13 was articulated in Matter of A-R-C-G-. 14 To be eligible for asylum, an applicant must demonstrate she is a member of a 15 “particular social group” and that group is composed of members who “share a common 16 immutable characteristic”, that must be “defined with particularity” and must be “socially 17 distinct within the society in question.” Paloka v. Holder, 762 F.3d 191, 195-96 (2d Cir. 18 2014) (citing In re M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)). In Matter of A- 19 R-C-G-, the BIA concluded “married women in Guatemala who are unable to leave their 20 relationship” satisfies membership in a particular social group for asylum purposes. 21 Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). This ruling was overruled by the 22 Attorney General on June 11, 2018 in the case of Matter of A-B-, 27 I&N Dec. 316 23 (2018). 24 Despite the recent Attorney General ruling, the Asylum Officer in Petitioner’s 25 case, acknowledged Petitioner’s proposed particular social group, “Guatemalan women 26 viewed as property by virtue of their position within a domestic relationship.” (Dkt. No. 27 9-1, Ex. 50). In considering her particular social group, and the facts as provided by 28 Petitioner, the Asylum Officer concluded she could not “establish at a full hearing that 7 18cv2187-GPC(KSC) 1 she was harmed due to her membership in the proposed particular social group.” (Dkt. 2 No. 9-1, Ex. 51.) 3 Respondent explains that the Department of Homeland Security has applied the 4 “viewed as property” standard even before the BIA’s ruling in Matter of A-R-C-G-, and 5 continues to apply it even after the Attorney General rescinded it. See e.g., Restrepo- 6 Perez v. Session, 719 Fed. App’x 654 (9th Cir. 2018) (“Board concluded that its decision 7 in A-R-C-G- was not a fundamental change in the law”). 8 9 Accordingly, because the Asylum Officer applied the definition of a particular social group proposed by Petitioner, she fails to state a claim for a due process violation. 10 Petitioner’s new argument, that spousal rape, itself, should be considered a “particular 11 social [sub]group” is not supported by case law and since the Asylum Officer considered 12 the broader “Guatemalan women viewed as property by virtue of their position within a 13 domestic relationship”, her subgroup would have been considered by the Asylum Officer. 14 Moreover, Petitioner concedes she did not propose this particular social group to the 15 Asylum Officer and does not provide any legal authority for the Court to exercise 16 jurisdiction over the issue. 17 Because Petitioner has failed to demonstrate a likelihood of success on the merits, 18 the Court DENIES Petitioner’s amended emergency motion for stay. See Garcia, 786 19 F.3d at 740 (if threshold factor of likelihood of success on the merits is not met, court 20 need not consider the other factors). 21 22 Conclusion Based on the reasoning above, the Court DENIES Petitioner’s amended emergency 23 motion for stay and DISMISSES the case for lack of subject matter jurisdiction. See 24 Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes 25 that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its 26 entirety.”) 27 IT IS SO ORDERED. 28 8 18cv2187-GPC(KSC) 1 Dated: November 5, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 18cv2187-GPC(KSC)
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