Gilberto G. v. Holder

Filing 7

ORDER Granting Respondent's Motion to Dismiss 6 , signed by Magistrate Judge Michael J. Seng on 9/7/11. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROSSATTY GILBERTO G.,
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Petitioner,
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v.
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ERIC H. HOLDER, JR.,
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Respondent.
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________________________________)

1:11-cv-00273 MJS HC
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS
[Doc. 6]

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Petitioner is proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241.

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It appears from the petition that Petitioner was ordered removed from the United States

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to the country of Guatemala. (Pet. at 1, ECF No. 1) In his Petition, Petitioner is challenging

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both the denial of relief from removability pursuant to former § 212(c) of the Immigration and

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Nationality Act (“INA”), 8 U.S.C. § 1182(c), and his eligibility for a bond hearing before an

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Immigration Judge pursuant to Casas-Castrillon v. Dept. Of Homeland Security,535 F.3d 942

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(9th Cir. 2008).

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The Court lacks jurisdiction to review this petition under the REAL ID Act, Pub.L. No.

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109-13, 119 Stat. 231 (May 11, 2005). Pursuant to the REAL ID Act, judicial review of all

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deportation, exclusion, or removal orders lies exclusively in the appropriate court of appeals,

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and the district courts no longer have jurisdiction to review such orders. Therefore, the

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exclusive means of asserting a challenge to a final order of removal and matters dependent

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thereon, is to file a petition for review in the appropriate court of appeals. 8 U.S.C. § 1252(a)(5)

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("a petition for review filed with an appropriate court of appeals in accordance with this section

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shall be the sole and exclusive means for judicial review of an order of removal entered or

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issued under any provision of this chapter...."); Garcia de Rincon v. Dep't of Homeland Sec.,

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539 F.3d 1133, 1140 (9th Cir. 2008) ("RIDA amended § 1252(b)(9) of the INA to vest the

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circuit courts with exclusive habeas jurisdiction over petitions challenging final orders of

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removal."); see also 8 U.S.C. § 1252(g) ("Except as provided in this section and

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notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause

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or claim by or on behalf of any alien arising from the decision or action by the Attorney General

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to commence proceedings, adjudicate cases, or execute removal orders against any alien

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under this chapter.").

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Although the REAL ID Act eliminated district court habeas corpus jurisdiction over

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orders of removal, "the REAL ID Act's jurisdiction stripping provisions ... do[ ] not apply [if the]

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claim is not a direct challenge to an order of removal." Puri v. Gonzales, 464 F.3d 1038, 1041

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(9th Cir. 2006); see also Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007) (holding that

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"both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders

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of removal"). In Singh, the Ninth Circuit held that the district court retained jurisdiction over a

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claim of ineffective assistance of counsel based upon counsel's failure to file a timely petition

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for review of the BIA's decision. The court reasoned that such a claim "cannot be construed

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as seeking judicial review of a final order of removal" because petitioner's "only remedy would

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be the restarting of the thirty-day period for the filing of a petition for review with [the court of

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appeals]. In other words, a successful habeas petition in this case will lead to nothing more

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than 'a day in court' for [the petitioner]." Singh, 499 F.3d at 979.

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Unlike Singh, it appears that Petitioner essentially seeks reversal of his removal order.

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Because Petitioner's claim does not fall within the exception to the REAL ID Act, this Court

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lacks jurisdiction over the petition. See Mejia-Espinoza v. Mukasey, 2009 U.S. Dist. LEXIS

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127321, 2009 WL 235625, *3 & n.2 (C.D.Cal. 2009) (holding that the district court lacked

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jurisdiction under the REAL ID Act where the petitioners sought to enjoin the government from

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executing their removal order while their motion to reopen is pending before the BIA because

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such relief would require the district court to review their final removal orders).
Accordingly the Motion to Dismiss is hereby granted, and the Petition is dismissed for

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lack of jurisdiction.
ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Motion to Dismiss is GRANTED;

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2. The Petition for Writ of Habeas Corpus is hereby DISMISSED for lack of

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jurisdiction; and
3. The Clerk of Court is DIRECTED to enter judgment.

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IT IS SO ORDERED.

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Dated:
ci4d6

September 7, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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