Perez-Alvarez v. United States of America et al

Filing 28

ORDER that 2 Motion for a Stay of Deportation is DENIED as Moot. FURTHER ORDERED that 17 Motion to Dismiss is DENIED as Moot in light of respondents' second motion to dismiss. FURTHER ORDERED that 26 Motion for an Extension of Time is GRANTED, nunc pro tunc, to April 15, 2013. FURTHER ORDERED that 27 Motion to Dismiss is GRANTED. The petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE. FURTHER ORDERED that petitioner is DENIED a Certificate of Appealability. FURTHER ORDERED that the clerk shall enter judgment accordingly. Signed by Judge James C. Mahan on 7/29/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID PEREZ-ALVAREZ,
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Petitioner,
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vs.
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UNITED STATES OF AMERICA, et al., )
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Respondents.
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____________________________________/

2:12-cv-02088-JCM-GWF
ORDER

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Petitioner, who is represented by counsel, has filed a habeas corpus petition, including a
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motion to stay of deportation. (ECF Nos. 1 & 2). On January 29, 2013, respondents filed a motion
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to dismiss the petition as moot. (ECF No. 17). Petitioner filed a response to the motion to dismiss.
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(ECF No. 20). On April 15, 2013, respondents filed a motion for an extension of time to file a reply,
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seeking a 2-day enlargement of time. (ECF No. 26). Two days later, on April 17, 2013, respondents
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filed a second motion to dismiss the petition. (ECF No. 27). Petitioner has not filed an opposition to
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respondents’ second motion to dismiss the petition. Pursuant to Local Rule 7-2(d), the failure of a
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party to file points and authorities in response to any motion shall constitute consent to the granting
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of the motion. As such, respondents’ second motion to dismiss could be granted solely on the basis
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of petitioner’s failure to file a response to the motion. Local Rule 7-2(d).
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The REAL ID Act of 2005, codified at 8 U.S.C. § 1252, significantly narrowed the scope of

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judicial review for removal orders in immigration cases. Pursuant to 8 U.S.C. § 1252(a)(5), a

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petition filed with the appropriate court of appeals “shall be the sole and exclusive means for judicial

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review of an order of removal entered or issued under any provision under this Act.” District courts

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do not have jurisdiction, habeas or otherwise, to review any removal order for any alien. See

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Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (interpreting 8 U.S.C. § 1252). In this

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case, petitioner challenges the immigration judge’s reinstated final order of removal, which was

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issued after the date of enactment of the REAL ID Act. The petition is therefore dismissed for lack

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of subject matter jurisdiction.

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In order to proceed with any appeal, petitioner must receive a certificate of appealability. 28

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U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951

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(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). District

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courts are required to rule on the certificate of appealability in the order disposing of a proceeding

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adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for

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certificate of appealability to be filed. Rule 11(a) of the Rules Governing Section 2254 and 2255

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Cases. Generally, a petitioner must make “a substantial showing of the denial of a constitutional

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right” to warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

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473, 483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at

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484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the

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issues are debatable among jurists of reason; that a court could resolve the issues differently; or that

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the questions are adequate to deserve encouragement to proceed further. Id. In this case, no

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reasonable jurist would find this court’s decision debatable or wrong. The court therefore denies

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petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that petitioner’s motion for a stay of deportation (ECF
No. 2) is DENIED AS MOOT.
IT IS FURTHER ORDERED that respondents’ first motion to dismiss is (ECF No. 17) is
DENIED AS MOOT in light of respondents’ second motion to dismiss.
IT IS FURTHER ORDERED that respondents’ motion for an extension of time (ECF No.
26) is GRANTED, nunc pro tunc, to April 15, 2013.
IT IS FURTHER ORDERED that respondents’ second motion to dismiss (ECF No. 27) is
GRANTED. The petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.
IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT
ACCORDINGLY.
29th
Dated this ______ day of July, 2013.

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UNITED STATES DISTRICT JUDGE
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