Vargas v. Holder et al

Filing 2

ORDER OF DISMISSAL. Signed by Judge Jeffrey S. White on 3/31/2011. (hlk, COURT STAFF) (Filed on 3/31/2011)

Vargas v. Holder et al

Doc. 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 Petitioners, 13 v. 14 ERIC HOLDER, ET AL., 15 Respondents 16 17 On March 31, 2011, Petitioners Raul Gonzalez and Graciela Gonzalez Vargas filed a petition 18 19 20 21 22 23 ICE served them with notices to depart by no later than April 1, 2011. (Id. ¶ 13.) 24 25 26 27 28 Petitioners further represent that they filed a motion to reopen removal proceedings with the Board of Immigration Appeals ("BIA") in January 2011 and the BIA has not yet ruled on the motion to reopen. (Id. ¶¶ 3, 14.) Petitioners also represent that the BIA has denied their motion for stay of deportation. (Id. ¶ 14.) for writ of habeas corpus and emergency request for stay of deportation. Petitioners represent that a final order of removal has been issued against them and are in the constructive custody of Immigration & Custom Enforcement ("ICE"). (Petition ¶ 4.) Petitioners represent that their appeals to the Board of Immigration Appeals ("BIA") and the Ninth Circuit were denied and that / RAUL GONZALEZ AND GRACIELA GONZALEZ VARGAS, No. C 11-1584 JSW ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioners seek habeas relief and an immediate stay of deportation. Petitioners contend that "waiting for the BIA's decision would prejudice Petitioner because the indefinite timeframe for administrative action would cause unreasonable delay." (Id. ¶ 12.) The Ninth Circuit has

4 5 6 7 8 9 of removal orders was to "`effectively limit all aliens to one bite of the apple with regard to 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 IT IS SO ORDERED. Attorney General of U.S., 484 F.3d 626, 632 (3d Cir. 2007). The Court determines that it lacks jurisdiction over the petition and request for stay. Singh, 499 F.3d at 977. The petition is therefore dismissed for lack of jurisdiction. The Clerk shall close the file. challenging an order of removal.'" Id. (quoting Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005)). The REAL ID Act does not, however, preclude habeas review over challenges to detention that are independent of challenges to removal orders. Casas-Castrillon v. Department of Homeland Sec., 535 F.3d 942, 946 (9th Cir. 2008). Petitioners' request for relief "directly implicate[s] the order of removal." Nnadika v. recognized that "the REAL ID Act expressly eliminated habeas review over all final orders of removal, but restored to the appellate courts jurisdiction over `constitutional claims or questions of law' in all cases - criminal and non-criminal." Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(D)). The REAL ID Act's purpose of eliminating district court review

Dated: March 31, 2011 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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