Locon v. Napolitano et al
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Charles R. Breyer on 7/14/2011. (crblc1, COURT STAFF) (Filed on 7/14/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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No. C 10-04367 CRB
FREDDY CIVIL LOCON,
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ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
Plaintiff,
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v.
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JANET NAPOLITANO,
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Defendant.
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Presently before the Court is a Petition for a Writ of Habeas Corpus (“Petition”) filed
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by Guatemalan native and citizen, Freddy Civil Locon (“Petitioner”). On September 28,
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2010, following a series of administrative and judicial reviews of an immigration judge’s
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2004 removal order – which included claims of ineffective assistance of counsel and
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prejudicial fraudulent misrepresentation by a legal assistant – Petitioner was removed to
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Guatemala. Several hours after his return to Guatemala, Petitioner filed this Petition.
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However, as discussed below, because Petitioner was in Guatemala and no longer “in
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custody,” pursuant to 28 U.S.C. § 2241, when the Petition was filed, this Court lacks subject-
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matter jurisdiction over the Petition. Accordingly, the Petition must be dismissed.
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I.
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BACKGROUND
Due to the parties’ familiarity with the general sequence of events, the Court sets forth
only those facts necessary to frame the issues at bar.
On April 16, 1993, Petitioner, a native and citizen of Guatemala, applied for asylum in
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the United States. Pet. (dkt. 1) Ex. F. In 2002, Petitioner’s application was referred to an
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immigration judge, who, on August 7, 2003, denied his application and ordered him removed
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to Guatemala. Id. Exs. H, I, M. The Board of Immigration Appeals (“BIA”) affirmed this
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decision on September 8, 2004. Id. Ex. O. In both of these proceedings, Petitioner was
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represented by attorney Gloria Lopez. Id. Exs. H, K, O.
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On September 19, 2006, Petitioner, aided by new counsel, Hilari Allred, filed a
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motion to reopen with the BIA, arguing ineffective assistance of counsel by Lopez and
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fraudulent misrepresentation by Byron Vasquez – a man who Petitioner claims falsely
United States District Court
For the Northern District of California
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represented himself as an attorney, when, in fact, he was a legal assistant. Id. ¶¶ 17-19; id.
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Ex. S. The BIA denied this motion to reopen, and the Ninth Circuit affirmed that denial on
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appeal. Id. Exs. V, Y.
Petitioner then moved the BIA to reconsider, and on May 28, 2010, the BIA denied
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this motion as time- and number-barred. Id. Ex. BB, CC. Petitioner did not seek review of
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this denial from the Ninth Circuit. See Return (dkt. 7) at 3.
On September 28, 2010, Petitioner was removed to Guatemala – his flight left Mesa,
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Arizona, at 6:00 a.m. Pacific Standard Time (PST), and arrived in Guatemala City,
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Guatemala, at 10:19 a.m. PST. Proctor Decl. (dkt. 7-1) Ex. 2. Petitioner filed the instant
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habeas Petition with the Court at 1:00 p.m. PST, asking the Court to order the BIA to reissue
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its September 8, 2004 decision so Petitioner can timely seek judicial review. Pet. (dkt. 1) ¶
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33. In his Petition, Petitioner alleges that Vasquez misrepresented that he was an attorney
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and that this prevented Petitioner from making such timely review. Id. ¶ 30(a).
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II.
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DISCUSSION
A.
“In Custody” Requirement
1.
Legal Background
As a general matter, district courts have jurisdiction to review aliens’ habeas petitions
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filed under the general habeas corpus statute, 28 U.S.C. § 2241. I.N.S. v. St. Cyr, 533 U.S.
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289, 298-314 (2001). However, § 2241 provides that “[t]he writ of habeas corpus shall not
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extend to a prisoner unless . . . [h]e is in custody.” 28 U.S.C. § 2241(c) (emphasis added);
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see Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Miranda v. Reno, 238 F.3d 1156, 1158-
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59 (9th Cir. 2001). Whether a petitioner is “in custody” is determined as of the time the
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petition is filed. Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 382 (3d Cir. 2001) (citing
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Carafas, 391 U.S. at 331) (finding “in custody” requirement met when alien filed habeas
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petition before removal).
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“In custody” is not limited to physical restraint. Carfas, 391 U.S. at 239. Rather,
habeas corpus jurisdiction has been extended to individuals who, though not physically
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restrained, are subject to “restraints on . . . liberty . . . not shared by the public generally.”
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United States District Court
For the Northern District of California
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Jones v. Cunningham, 371 U.S. 236, 240 (1963). However, “there must be a significant
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restraint on the petitioner’s liberty to satisfy th[e] ‘custody’ requirement.” Patel v. U.S. Att’y
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Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (citing cases). In this and other Circuits, removal
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from the United States does not constitute a significant restraint on an alien’s liberty;
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therefore, already-deported aliens ordinarily fail to meet the “in custody” requirement.
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Miranda, 238 F.3d at 1159 (9th Cir. 2001); see Patel, 334 F.3d at 1263 (same); see also
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Terrado v. Moyer, 820 F.2d 920, 922 (7th Cir. 1987) (habeas petition filed after deportation
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does not satisfy “in custody” requirement).
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A narrow exception to this general rule exits for “extreme circumstances” – such as
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where “the INS remove[s] an immigrant ‘in violation of the immigration judge’s order and
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after interference with his right to counsel.’” Miranda, 238 F.3d at 1159 (quoting Singh v.
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Waters, 87 F.3d 346, 349 (9th Cir. 1996)) (finding no “extreme circumstances” meriting any
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exception where alien was removed pursuant to immigration judge’s order and counsel
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waived right to appeal order to BIA).
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2.
The Parties’ Claims
Respondents argue that the present Petition fails to meet the “in custody” requirement
because Petitioner had already been removed from the country when the Petition was filed.
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See Return (dkt. 7) at 4-5 (citing Miranda, 238 F.3d at 1158). In support of this contention,
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they submit1:
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(1) Petitioner’s I-205 Form,2 stamped: “Chandler[,] Arizona/Williams Gateway
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Airport3/Date Sep[.] 28, 2010/Via JPATS,4” Proctor Decl. (dkt. 7-1) Ex. 1;
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(2) a September 28, 2010 “ICE Charter flight”5 itinerary listing Petitioner as a
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passenger, and documenting departure from Mesa, Arizona at 6:00 a.m. PST, arrival
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in Guatemala City, Guatemala at 10:19 a.m. PST, and departure again from
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Guatemala City at 11:19 a.m. PST, id. Ex. 2; and
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(3) the cover of the Petition, stamped as filed in this Court at 1:00 p.m. PST on
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For the Northern District of California
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September 28, 2010, id. Ex. 3.
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Because Petitioner’s 1:00 p.m. PST filing time on September 28, 2010 came after the
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ICE flight had landed in, and again departed from, Guatemala, Respondents maintain that
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Petitioner had already been deported when the Petition was filed, and, therefore, was no
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longer “in custody,” as required by § 2241. See Return (dkt. 7) at 4-5.
Petitioner contests these submissions as factually erroneous. See Traverse (dkt. 9) at
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6-8.
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For ease of understanding the sequence of events, the Court sets forth all times in PST.
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An I-205 form is the United States Immigration and Naturalization Service’s Warrant of
Removal/Deportation. See id. Ex. 1; 8 C.F.R. § 299.1.
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The formerly named Williams Gateway Airport, now Phoenix-Mesa Gateway Airport, is
actually located in Mesa, Arizona, approximately ten miles from Chandler, Arizona. See History,
PHXMESA GATEWAY AIRPORT, http://www.phxmesagateway.org/History.aspx (last visited July 12,
2011).
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JPATS, the Justice Prisoner & Alien Transportation System, operates the air fleets for the
Marshals Service and the Bureau of Immigration and U.S. Immigration and Customs Enforcement
(“ICE”). Justice Prisoner & Alien Transportation System (JPATS), U.S. MARSHALS SERVICE,
http://www.usmarshals.gov/jpats/ (last visited July 12, 2011); see also supra at 5 n.5. JPATS, inter alia,
operates a fleet of aircraft to remove deportable aliens. Id. JPATS has a hub in Mesa, Arizona. Id.
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“ICE” is the U.S. Immigration and Customs Enforcement, and is charged with “apprehend[ing]
removable aliens, detain[ing] these individuals when necessary and remove[ing] illegal aliens from the
U.S.” See ICE Enforcement and Removal Operations, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, http://www.ice.gov/about/offices/enforcement-removal-operations/ (last visited July
12, 2011).
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3.
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Petitioner Was Not “In Custody” When his Petition Was Filed
Although Petitioner claims that there are two errors, neither detracts from the
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documents’ proof that he filed his Petition after he had been removed. First, Petitioner takes
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issue with the fact that the I-205 form’s departure stamp reads, “Chandler[,]
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Arizona/Williams Gateway Airport,” while the flight itinerary records departure from “Mesa,
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AZ.” Id. However, this typographical inconsistency is inconsequential: Williams Gateway
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Airport, a hub for JPATS, is in Mesa, Arizona, approximately ten miles from Chandler; these
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documents are consistent as to Petitioner’s place of departure. See supra at 5 n.3. Second,
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Petitioner finds error in the submission of an “ICE Charter flight” itinerary, when the I-205
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United States District Court
For the Northern District of California
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form records Petitioner departing on “via JPATS.” Traverse (dkt. 9) at 6-8. These, too, are
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one and the same: JPATS operates chartered ICE removal flights. See supra at 5 n.4.
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The records in this case thus demonstrate that Petitioner had been removed to
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Guatemala several hours before he filed the instant Petition. “No interpretation of § 2241
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that is not utterly at war with its plain language permits us to exercise habeas corpus
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jurisdiction over . . . [i]mmigrants who have already been removed . . . [and] do not satisfy
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the ‘in custody’ requirement of habeas corpus jurisdiction.” Miranda, 238 F.3d at 1159.
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Accordingly, this Court lacks subject-matter jurisdiction hear Petitioner’s claims.
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Further, this Petition does not fall under Waters’ “extreme circumstances” exception.
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Petitioner here was removed pursuant to an immigration judge’s order, following a full
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process administrative and judicial review – both of his removal order6 and his ineffective-
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assistance-of-counsel and fraudulent-misrepresentation claims.7
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Petitioner’s removal order was reviewed by the BIA and the Ninth Circuit on multiple
occasions, and Petitioner has not sought review of the last May 28, 2010, BIA decision denying his
motion for reconsideration. See Pet. (dkt. 1) Exs. S, Y, CC. Nor does Petitioner challenge this decision;
rather, Petitioner brings claims of ineffective assistance and fraudulent misrepresentation against
Vasquez. Id. ¶¶ 27-30 However, the claims against Vasquez have already been heard, as well. See infra
at n.7.
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Petitioner was heard by the BIA on September 19, 2006, on his ineffective assistance claim as
to Lopez and his misrepresentation and fraud claims against Vasquez, in connection with his motion to
reopen. See Pet. (dkt. 1) Ex. S, at 6-22. During this proceeding, Petitioner was represented by counsel
Allred, against whom Petitioner makes no ineffective-assistance claim. See id. at 24. The Ninth Circuit
affirmed this decision on November 30, 2009. See id. Ex. Y.
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Nor does Petitioner find jurisdictional relief from Singh v. Gonzales, 499 F.3d 969
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(2007). Gonzalez deals with the reach of the REAL ID Act’s8 “jurisdiction-stripping
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provisions,” which generally stripped district courts of jurisdiction to review removal orders.
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Gonzalez, 499 F.3d at 971-72; see 8 U.S.C. § 1252(a)(5). In Gonzalez, the Ninth Circuit
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held that district courts, nevertheless, may retain jurisdiction over “a narrow claim of
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ineffective assistance of counsel in connection with a post-administrative filing of an appeal
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with the court of appeals.” Id. at 981. However, Gonzalez strictly limited its holding to the
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scope of the REAL ID Act’s “jurisdiction-stripping” and did not eliminate or otherwise
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impinge upon the “in custody” requirement. Id. at 981; see, e.g., Gutierrez-Ramos v. Martin,
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United States District Court
For the Northern District of California
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No. SACV 08-0040GPSJTL, 2008 WL 2811497, at *1-2 (C.D. Cal. July 21, 2008) (declining
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habeas jurisdiction over claims filed after REAL ID Act and after petitioner had been
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deported because he was not “in custody”).
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III.
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CONCLUSION
For the reasons set forth above, the Petition for Writ of Habeas Corpus is dismissed
for lack of jurisdiction.
IT IS SO ORDERED.
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CHARLES R. BREYER
UNITED STATES DISTRICT
JUDGE
Dated: July 14, 2011
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Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 310 (2005) (codified at 8 U.S.C. § 1252(a)(5)).
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