Oscar Alan Martinez v. Eric H Holder et al

Filing 6

ORDER TO SHOW CAUSE WHY WRIT PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION. Petitioner's response to order to show cause is due 12/10/2014, 12 noon. Order to Show Cause Hearing set for 12/10/2014 03:00 PM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Nathanael Cousins on 12/8/2014. (lmh, COURT STAFF) (Filed on 12/8/2014)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12

OSCAR ALAN MARTINEZ,

13

Petitioner,

14
15

ORDER TO SHOW CAUSE WHY
WRIT PETITION SHOULD NOT BE
DISMISSED FOR LACK OF
JURISDICTION

v.

16
17
18

Case No. 14-cv-05253 NC

ERIC HOLDER, Attorney General of the
United States, and others,
Dkt. No. 1
Respondents.

19
20
21
22
23
24

Oscar Alan Martinez petitions for a Writ of Habeas Corpus vacating his Final Order
of Administrative Removal. In his petition, Martinez asserts that he is a citizen and national
of Mexico and he is presently being detained by U.S. immigration authorities at a facility in
Elk Grove, California. Dkt. No. 1 ¶ 7. The petition further asserts that Martinez is subject

25

to a Final Administrative Removal Order. Dkt. No. 1 ¶ 11. In both his “CLAIM FOR

26

RELIEF” and “PRAYER FOR RELIEF” Martinez seeks to vacate the Final Order of

27

Administrative Removal. Dkt. No. 1 at 4-5.

28
Case No. 14-CV-05253 NC
ORDER TO SHOW CAUSE

1

In a separately filed Motion for Stay of Removal, Martinez asks for a stay of his

2 removal, so that he may “challenge the illegality of the Final Administrative Order which
3 was issued in his case.” Dkt. No. 4 at 1.
4

No defendants have yet appeared in this action.

5

The Court now issues this Order to Show Cause why the petition should not be

6 dismissed for lack of jurisdiction. In 2005, Congress enacted the REAL ID Act of 2005,
7 which expanded the jurisdiction of the circuit courts over final orders of removal and
8 eliminated district court jurisdiction. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050,
9 1052 (9th Cir. 2005). The Act eliminated habeas jurisdiction, including under 28 U.S.C. §
10 2241, over final orders of deportation, exclusion, or removal. Id. The central jurisdictional
11 provision of the Act is 8 U.S.C. § 1252(b)(9):
12
13
14
15
16
17
18
19
20
21
22
23
24

Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States under this subchapter
shall be available only in judicial review of a final order under this section. Except as
otherwise provided in this section, no court shall have jurisdiction, by habeas corpus
under section 2241 of Title 28 or any other habeas corpus provision, by section 1361
or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to
review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9).
Accordingly, petitioner must show cause in writing by December 10, 2014, at noon
why this action should not be dismissed for lack of jurisdiction. See Rogelio BarraganCampos v. Michael Chertoff, ECF No. 06-cv-07057 CRB, Dkt. No. 31 (N.D. Cal. Jan. 10,
2007) (dismissing challenge to deportation order for lack of jurisdiction). If the Court
lacks jurisdiction, then it does not possess authority to rule on petitioner’s application for
order to show cause and motion for stay of removal. Dkt. Nos. 3, 4.
The Court will hold a hearing on the OSC on December 10, 2014, 3:00 p.m. in San

25

Francisco Courtroom A. Petitioner’s counsel may participate by telephone by contacting

26

the Court’s deputy in advance at [phone].

27
28
Case No. 14-CV-05253 NC
ORDER TO SHOW CAUSE

2

1

IT IS SO ORDERED.

2

Date: December 8, 2014
_________________________
Nathanael M. Cousins
United States Magistrate Judge

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
Case No. 14-CV-05253 NC
ORDER TO SHOW CAUSE

3