Ramirez-Albarracin et al v. Holder, Jr.

Filing 11

ORDER TO SHOW CAUSE RE: JURISDICTION. Show Cause Response due by 8/1/2014.. Signed by Judge Jacqueline Scott Corley on 7/11/2014. (jsclc2, COURT STAFF) (Filed on 7/11/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CARLOS ALBERTO RAMIREZALBARRACIN, et al.,
Petitioner,

8
9
10

ORDER TO SHOW CAUSE
REGARDING JURISDICTION

v.
ERIC H HOLDER, JR.,
Respondent.

11
United States District Court
Northern District of California

Case No. 14-cv-02133-JSC

12
13
14

Presently before the Court is Petitioner Carlos Alberto Ramirez-Albarracin’s Petition for
Issuance of Writ of Habeas Corpus. (Dkt. No. 1.)

15
16

BACKGROUND
Petitioner is a native and citizen of Peru who has resided in the United States for 40 years.

17

(Dkt. No. 1 ¶ 1.) In 1977, Petitioner was deported, but he then re-entered the United States a short

18

time later and has resided here ever since. (Id. ¶ 2.) Petitioner married a United States citizen in

19

1987 and she filed a marriage-based visa on his behalf which was approved in 1990. (Id. ¶¶ 9-10.)

20

A year later, Petitioner filed an I-212, Permission to Re-Apply for Admission after Deportation,

21

but that was denied. (Id. ¶¶ 11-12.) In 1999, Petitioner filed an application for Lawful Permanent

22

Residency that has never been adjudicated. (Id. ¶¶ 13-15.) It does not appear that there was any

23

further activity regarding Petitioner’s immigration status until he was apprehended by immigration

24

authorities on or about March 16, 2014. (Id. ¶ 16.) Petitioner is not currently in immigration

25

custody. (Id. ¶ 8.) Petitioner contends that the government is moving to reinstate the 1977

26

removal order under 8 U.S.C. § 1251(a)(5), although he has not been issued a Notice to Appear.

27

(Id. ¶¶ 4, 7.)

28

DISCUSSION

1
2

Federal district courts may grant a writ of habeas corpus if the petitioner is “in custody in

3

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

4

Prior to enactment of the REAL ID Act of 2005, petitions for writs of habeas corpus provided a

5

legal avenue for individuals to seek relief from deportation. However, under the REAL ID Act, a

6

petition for review to the appropriate court of appeals is the “sole and exclusive means for judicial

7

review” of a final order of removal, deportation, or exclusion, and district courts do not have

8

statutory or nonstatutory habeas jurisdiction over such orders. See 8 U.S.C. § 1252; Martinez–

9

Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005).

10

The petition for habeas corpus here concerns reinstatement of a 1977 Order of Deportation.

United States District Court
Northern District of California

11

The Ninth Circuit has held, however, that a reinstatement order “qualifies as an order of removal

12

that can only be challenged in a petition for review filed directly with our court.” Morales–

13

Izquierdo v. Dept. of Homeland Sec., 600 F.3d 1076, 1085 (9th Cir. 2010). Although the Petition

14

includes a discussion of habeas jurisdiction under Real ID, Petitioner does not address Morales-

15

Izquierdo. Accordingly, petitioner shall show cause as to why the habeas petition should not be

16

dismissed for lack of jurisdiction.

17

Further, although Petitioner states that the government is moving to reinstate the 1977

18

removal order, it does not appear that the order has been reinstated as he has not attached such an

19

order to this Petition. If so, this Court lacks jurisdiction as Petitioner is not “in custody” for

20

purposes of 28 U.S.C. § 2241. See Veltmann-Barragan v. Holder, 717 F.3d 1086, 1087 (9th Cir.

21

2013) (holding that individuals who are removable, but not yet subject to a removal order, are not

22

“in custody” for purposes of § 2241). Petitioner shall also address this issue in his response to the

23

Order to Show Cause.
CONCLUSION

24
25

On or before August 1, 2014, Petitioner shall file with the Court and serve on Respondent

26

his response to this Order to Show Cause. Respondent shall file a reply to Petitioner’s response or

27

before August 15, 2014.

28
2

1
2
3
4

IT IS SO ORDERED.
Dated: July 11, 2014
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3