Quiroz v. Immigration

Filing 10

ORDER: The Court concludes that it lacks jurisdiction to consider the instant Petition. The Petition for Writ of Habeas Corpus (Dkt # 1 ) filed by Petitioner is denied. Signed by Judge William Q. Hayes on 3/28/2017. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CRISTOBAL RAMOS QUIROZ, 11 12 v. IMMIGRATION, 13 Petitioner, CASE NO. 17cv60-WQH-JMA ORDER Respondent. 14 HAYES, Judge: 15 The matter before the Court is the Petition for Writ of Habeas Corpus (“Petition”) 16 filed by Petitioner Cristobal Ramos Quiroz pursuant to 28 U.S.C § 2241. (ECF No. 1). 17 18 BACKGROUND Petitioner is a native citizen of Mexico and has alleged that he is currently in 19 custody of the Department of Homeland Security (“DHS”) at Otay Mesa Detention 20 Center.1 (Exhibit H, ECF No. 8-9 at 2; ECF No. 1). Petitioner was granted lawful 21 permanent resident status in March 1988. (Exhibit B, ECF No. 8-3 at 2). On April 14, 22 1994, Petitioner was convicted of corporal injury to a spouse under California Penal 23 Code section 273.5(A) and assault causing great bodily injury with a deadly weapon 24 under California Penal Code section 245(a)(1). (Exhibit C, ECF No. 8-4 at 2). The 25 Immigration and Naturalization Services filed a notice to appear initiating removal 26 proceedings against Petitioner pursuant to section 237(a)(2)(A)(iii) of the Immigration 27 28 1 On March 2, 2017, Petitioner filed a Notice of Change of Address indicating that he is no longer at the Otay Mesa Detention Center. (ECF No. 9). -1- 17cv60-WQH-JMA 1 and Nationality Act due to an aggravated felony conviction. (Exhibit D, ECF No. 8-5 2 at 2). Petitioner was removed to Mexico on February 9, 1999. (Exhibit E, ECF No. 83 6). 4 Petitioner was removed again on February 6, 2008 following a conviction of 5 possession of a controlled substance in violation of California Health and Safety Code 6 section 11377(a). (Exhibit G, ECF No. 8-8; Exhibit F, ECF No. 8-7 at 2). 7 On March 10, 2016, DHS issued a notice to appear which alleges that Petitioner 8 arrived at the San Ysidro port of entry on or about January 31, 2016 and expressed a 9 credible fear of persecution or torture. (ECF No. 8-9 at 2). DHS charged him as subject 10 to removal as an arriving alien without any valid entry document. Id. On August 25, 11 2016, an Immigration Judge issued an order denying Petitioner’s application for 12 asylum, ordering Petitioner’s removal, Petitioner’s application for withholding or 13 removal and denying protection under the Convention Against Torture. (Exhibit A, 14 ECF No. 8-2 at 12). 15 On August 1, 2016, an Immigration Judge denied Petitioner’s request for a 16 change in custody status. (Exhibit J, ECF No. 8-11 at 2). The Board of Immigration 17 Appeals affirmed the custody determination decision on October 1, 2016. Id. at 3. On 18 October 24, 2016, Petitioner filed a petition for review with the Ninth Circuit Court of 19 Appeals. Ramos Quiroz v. Sessions, No. 16-73407 (filed Oct. 24, 2016). 20 On January 6, 2017, Petitioner filed the Petition for Writ of Habeas Corpus 21 pursuant to 28 U.S.C. § 2241. (ECF No. 1). On January 13, 2017, the Court dismissed 22 the Petition without prejudice and with leave to amend for failure to satisfy the filing 23 fee requirement. (ECF No. 2). On January 31, 2017, Petitioner filed a “Request for Fee 24 Waiver” which this Court construed as a motion to proceed in forma pauperis. (ECF 25 No. 4). On February 9, 2017, the Court granted the application to proceed in forma 26 pauperis and reopened the case. (ECF No. 5). 27 On February 9, 2017, the Court issued an Order to Show Cause why the Petition 28 should not be granted. (ECF No. 6). The Court ordered that a return shall be filed by -2- 17cv60-WQH-JMA 1 February 23, 2017 and any traverse shall be filed by March 9, 2017. Id. 2 On February 23, 2017, the Government filed a return. (ECF No. 8). The 3 Government contends that this Court lacks jurisdiction over this matter because 4 Petitioner seeks review of an order of removal and matters attendant to that order. Id. 5 at 6. The Government contends that Petitioner may not pursue this claim before a 6 district court by means of a habeas petition but must present his claim to the circuit 7 court through a petition for review. Id. at 6-7. The Government contends that the 8 Petition should be denied because DHS recently lodged new charges of inadmissibility 9 against Petitioner and Petitioner has failed to exhaust his administrative remedies. Id. 10 at 7. 11 The record reflects that Petitioner has not filed a traverse. 12 13 RULING OF THE COURT A federal court may grant a petition for writ of habeas corpus pursuant to 28 14 U.S.C. § 2241 if a federal petitioner can demonstrate that he “is in custody in violation 15 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). 16 17 Pursuant to 8 U.S.C. § 1252, habeas jurisdiction over removal orders is vested 18 solely with the courts of appeal. See 8 U.S.C. § 1252(a)(5) (“Notwithstanding any other 19 provision of law (statutory or nonstatutory), including section 2241 of Title 28, ... a 20 petition for review filed with an appropriate court of appeals in accordance with this 21 section shall be the sole and exclusive means for judicial review of an order of 22 removal.”). Section 1252 also provides for the consolidation of questions for judicial 23 review: 24 25 26 27 28 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 . . . to review such an order or such questions of law or fact. -3- 17cv60-WQH-JMA 1 8 U.S.C. § 1252(b)(9); see also Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2 2012). 3 In this matter, Petitioner seeks review of an order of removal. The Petitioner 4 seeks “reinstatement of my lawful permanent resident status” and contends that he was 5 wrongfully deported in 1999. (ECF No. 1 at 1, 3). The Court concludes that it lacks 6 jurisdiction to consider the instant Petition. See 8 U.S.C. § 1252. 7 IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus (ECF 8 No. 1) filed by Petitioner is DENIED. 9 DATED: March 28, 2017 10 11 WILLIAM Q. HAYES United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 17cv60-WQH-JMA

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