Free Memorandum in Opposition - District Court of California - California

Case 4:07-cv-04953-SBA

Document 4

Filed 09/26/2007

Page 1 of 4

1 SCOTT N. SCHOOLS, SC SBN 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division ILA C. DEISS, NY SBN 3052909 4 Assistant United States Attorney 5 6 7 Attorneys for Respondents 8 9 10 11 12 GUMARO GARCIA GARNICA, 13 14 v. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4953 SBA 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

15 MICHAEL CHERTOFF, Secretary, Department of Homeland Security; 16 NANCY ALCANTAR, Field Office Director, Immigration and Customs Enforcement, and 17 PETER KEISLER, Acting Attorney General of the United States, 18 Respondents. 19 20

RESPONDENTS' OPPOSITION TO BOTH PETITION FOR WRIT OF HABEAS CORPUS AND REQUEST FOR A TEMPORARY RESTRAINING ORDER

Petitioner asks this Court to enjoin and restrain Respondents from removing him to Mexico on

21 September 26, 2007, and seeks to have the privilege of voluntary departure reinstated. This Court 22 lacks jurisdiction to review Petitioner's claims and should deny the request for a temporary 23 restraining order and dismiss the petition. 24 25 BACKGROUND On June 10, 2005, the Board of Immigration Appeals (BIA), upheld the Immigration Judge's

26 (IJ) order of removal. See Petition for a Writ of Habeas Corpus (Petition), Exh. M. The BIA 27 granted Petitioner 60 days to depart the United States voluntarily and warned Petitioner that failure 28 to depart would subject him to a civil fine and would preclude him from being eligible for a list of Respondents' Opposition to TRO and Petition for Write of Habeas Corpus C-07-4953 SBA

Case 4:07-cv-04953-SBA

Document 4

Filed 09/26/2007

Page 2 of 4

1 relief from removal. Id. Petitioner moved to reopen before the BIA and on September 15, 2005, 2 the BIA agreed to consider the motion to reopen because it was filed before the voluntary 3 departure period had lapsed (3 days before lapsing), citing Azarte v. Ashcroft, 394 F.3d 1278, 4 1288-89 (9th Cir.2005) (holding that where a motion to reopen is filed within the voluntary 5 departure period and a stay of removal or voluntary departure is requested, the voluntary departure 6 period is tolled during the period the BIA is considering the motion). 7 On September 15, 2005, the BIA denied the motion to reopen and three days later, his

8 voluntary departure period lapsed. Petition, Exhibit P. Petitioner timely appealed to the Ninth 9 Circuit Court of Appeals, seeking a stay of removal, but without raising a voluntary departure 10 argument. Petition, Exh. Q. On December 1, 2006, the Ninth Circuit summarily denied the 11 Petition for Review and on January 23, 2007, the mandate issued. On August 28, 2007, Petitioner 12 received a letter from the Department of Homeland Security, noting that he Petitioner was subject 13 to a final order of removal and directing him to surrender on September 26, 2007. This petition 14 was filed with this Court on September 25, 2007. 15 16 ARGUMENT This Court may entertain a petition for a writ of habeas corpus from a person claiming to be "in

17 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 18 2241(c)(3). 19 20 A. This Court Has No Jurisdiction Over this Habeas Petition The REAL ID Act of 2005 eliminated district court habeas corpus jurisdiction over final orders

21 of deportation or removal and vested jurisdiction to review such orders exclusively in the courts of 22 appeals: 23 24 25 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act, except as provided in subsection (e).

26 INA § 242(a)(5), 8 U.S.C. § 1252(a)(5). The REAL ID Act further provided: 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 Respondents' Opposition to TRO and Petition for Write of Habeas Corpus C-07-4953 SBA

Case 4:07-cv-04953-SBA

Document 4

Filed 09/26/2007

Page 3 of 4

1 2 3

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. INA § 242(b)(9), 8 U.S.C. § 1252(b)(9). Furthermore, Section 242(g) of the INA, 8 U.S.C. §

4 1252(g), as amended by the REAL ID Act, now provides, 5 (g) Exclusive jurisdiction 6 7 8 9 10 Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. Thus, the only courts with subject matter jurisdiction to review such final orders are the courts

11 of appeals. Although the REAL ID Act did not eliminate habeas jurisdiction over challenges to 12 detention that are independent of challenges to final orders of removal, Petitioner's claims clearly 13 present a challenge to the Attorney General's action to execute his final order of removal. Cf. 14 Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) ("By its terms, the 15 jurisdiction-stripping provision [of the REAL ID Act] does not apply to federal habeas corpus 16 petitions that do not involve final orders of removal."). The BIA and the Ninth Circuit have 17 reviewed Petitioner's claims and rejected them. Petitioner is subject to a final order of removal 18 and his opportunity to voluntarily depart has lapsed. See 8 C.F.R. § 1241.1(f). As a result, this 19 Court lacks jurisdiction to entertain both Petitioner's habeas petition and request for a temporary 20 stay of deportation. 21 22 B. There is No Judicial Review Of the Privilege of Voluntary Departure To the extent Petitioner is attempting to raise an ineffective assistance of counsel claim for

23 failing to preserve Petitioner's voluntary departure privilege, attempting to fit into the narrow 24 holding of Singh v. Gonzales, --- F.3d ----, 2007 WL 2406862 (9th Cir. 2007), this argument also 25 fails. Pursuant to 8 C.F.R. § 1240.26(f), once a removal order has issued, authority to extend the 26 voluntary departure period rests with the agency. Petitioner asked the agency on the eve of 27 September 25, 2007, the day before he is scheduled to surrender, for a reinstatement of his lapsed 28 voluntary departure, arguing ineffective assistance of prior counsel. Regardless of the outcome, Respondents' Opposition to TRO and Petition for Write of Habeas Corpus C-07-4953 SBA

Case 4:07-cv-04953-SBA

Document 4

Filed 09/26/2007

Page 4 of 4

1 there is no judicial review over requests for voluntary departure. See 8 U.S.C. § 1229c(f); Garcia 2 v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir. 2004) (no jurisdiction over requests to reinstate 3 voluntary departure); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003); see also 4 Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.2007) ("Section 106 [of RIDA] does not restore 5 jurisdiction over discretionary determinations"). 6 7 CONCLUSION Accordingly, petitioner's habeas petition should be denied and dismissed for lack of

8 jurisdiction, and the any stay of deportation pendente lite should be denied as should any request 9 to reinstate the privilege of voluntary departure, which lapsed in 2005. 10 Dated: September 26, 2007 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents' Opposition to TRO and Petition for Write of Habeas Corpus C-07-4953 SBA /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Respondents Respectfully submitted, SCOTT N. SCHOOLS United States Attorney