Pacheco-Tellez v. Gonzales et al

Filing 5

IT IS THEREFORE ORDERED that the Petition is denied and this action is dismissed. IT IS FURTHER ORDERED denying 3 Petitioner's Motion to Stay, denying as moot 4 Petitioner's Motion to Appoint Counsel.. Signed by Judge David G Campbell on 11/21/05. (TLJ, )

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Pacheco-Tellez v. Gonzales et al Doc. 5 1 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 vs. Albert o R. Gonzales, et al., Respondents. M art iniano Pacheco-Tellez, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 05-3649-PHX-DGC (VAM ) O RDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA WO JK M Pet it ioner M art iniano Pacheco-Tellez (A92-561-114), who is confined in the Eloy Det ent ion Center in Eloy, Arizona, has filed a pr o s e P et it ion for Writ of Habeas Corpus p ursuant to 28 U.S.C. 2241. Petitioner also has filed a M ot ion for Emergency St a y of D e p ort at ion (Doc. # 3) and a M ot ion for Appointment of Counsel (Doc. #4). The action w i l l be dismissed and Petitioner's motions will be denied. PETITIO N Pet it ioner is a native and cit i z en of M exico. In 1998, he was convicted of Open or Gross Lewdness in violation of N e v a d a law. On February 18, 2004, an immigration judge found Petitioner removable under 8 U.S.C. 1227(a)(2)(A)(iii) as an alien convicted of an aggravat ed felony, and under 8 U.S.C. 1227(a)(2)(E)(i) as an alien convicted of a child abuse offense. On M a r c h 18, 2005, the Board of Immigration Appeals ("BIA") dismissed Pet it ioner's appeal. O n J u l y 21, 2005, the United States Court of Appeals for the Ninth Pacheco-Tellez v. Circui t denied Petitioner's petition for review for lack of jurisdiction. Case 2:05-cv-03649-DGC--VAM Document 5 Filed 11/21/2005 Page 1 of 3 1 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 Gonz ales, No. 05-71741 (9th Cir. Jul. 21, 2005) (unpublished order). On October 6, 2005, the Nint h Circuit denied Petitioner's mot i on for reconsideration. No. 05-71741 (9th Cir. Oct. 6, 2005) (unpublished order). Pet it i o n e r as s e r t s four grounds in support of his Petition for Writ of Habeas Corpus: (1) the immigration judge erred in his finding that Petitioner's Nevada conviction qualifies as an aggravated felony; (2) the immigration judge's factual and legal errors caused the BIA to reach the wrong decision; (3) Ninth Circuit erred in dismissing his Petition for review for lack of jurisdiction; and (4) Petitioner's removal from the United States should be stayed pending resolution of this action. DIS CUS S IO N On M ay 11, 2005, the President s i gn e d into law the REAL ID Act of 2005. Pub. L. No. 109-13, 119 Stat. 231 (M ay 11, 2005). As amended by t h e REAL ID Act, 8 U.S.C. 1252(a)(5) now provides in relevant part: (5) EXCLUSIVE M EANS OF REVIEW. Notwithstanding any other p r o v i s i o n of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance w it h 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 Act, except as provided in subsection (e). REAL ID Act 106(a)(1)(B). By this amendment, Congress has deprived the district courts of habeas corpus jurisdiction to review orders of removal entered under the Immigration and Nationalit y A c t . This jurisdiction stripping provision is retroactive. REAL ID Act Pacheco-Tellez v. Gonzales, 106(b) ("subsection (a) shall take effect up o n t h e date of enactment of this division and shall apply to cases in which the final administrative order of removal, dep o r t at ion, or exclusion w a s is s u e d before, on, or after the date of enactment"). The REAL ID Act also p rovides that if any 2241 habeas corpus case "challenging a final administrative order of removal . . . is p ending in a district court on the date of enactment, then the district court shall transfer the case . . . to the [appropriate] court of ap p e a l s." REAL ID Act 106(c). T his action, however, cannot be transferred under 106(c) because it was not pending on Case 2:05-cv-03649-DGC--VAM Document -52 - Filed 11/21/2005 Page 2 of 3 1 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 t he date of enactment . p et it ion for review. M oreover, the Ninth Circuit has already rejected Petitioner's Petitioner asks this Court to hold that the Ninth Circuit erred in dismissing his p e t it ion for review, but a district court cannot reconsider a decision made by a court of ap p eals. See Nunes v. A s h c r o f t , 375 F.3d 805, 809-10 (9th Cir. 2004) (an alien may not relit igat e in district court a p rior determination made by the court of appeals). This action will therefore be dismissed for lack of jurisdiction. REQ UES T FOR S TAY OF REMOVAL Because the underlying Petition is not cogniz a b l e , Petitioner's request for a stay of removal must also be denied. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9t h Cir. 1987) (if the applicant shows no chance of success on the merit s , a p r e l i m i nary injunct ion should not issue). IT IS THEREFORE ORDERED that the Petition is denied and t h i s action is di smi sse d. IT IS FURTHER ORDERED that Petitioner's M ot ion for Emergency Stay of Dep ort at ion Pending (Doc. #3) is denied and Petitioner's M o t i o n for Appointment of Counsel (Doc. #4) is denied as moot. DAT ED this 21st day of November, 2005. Case 2:05-cv-03649-DGC--VAM Document -53 - Filed 11/21/2005 Page 3 of 3

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