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GRANADOS v. GONZALEZ

United States District Court, S.D. California


August 22, 2005.

GUILLERMO GRANADOS, Petitioner,
v.
ALBERTO GONZALEZ; Attorney General of the United States, et al., Respondents.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

ORDER (1) DENYING PETITIONER'S REQUEST FOR A TEMPORARY RESTRAINING ORDER; and (2) DISMISSING THE PETITION FOR LACK OF JURISDICTION
[Doc. No. 1.]
Presently before the Court is Guillermo Granados' ("petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Accompanying petitioner's habeas petition is a request for an emergency temporary restraining order ("TRO") to stay his deportation pending resolution of his petition. For the reasons discussed below, the Court denies petitioner's request for a TRO and dismisses his petition for lack of jurisdiction.

BACKGROUND

  Petitioner is a native and citizen of the Philippine Islands. Petitioner first entered the United States on a non-immigrant visitor visa on June 15, 1986. (Petition, Case No. 02-CV-0540-IEG, Doc. No. 17.) However, on October 10, 1995, an immigration judge (1) found petitioner deportable; (2) granted petitioner voluntary departure; and (3) ordered that petitioner be deported if he failed to voluntarily depart. (Pet.'s Mem. ISO TRO and Pet. at 2.) Thereafter, the Board of Immigration Appeals and the Ninth Circuit denied petitioner's direct appeals. Additionally, this Court dismissed petitioner's previous habeas petition for lack of jurisdiction. (Case No. 02-CV-0540-IEG, Doc. No. 17.)

  In the instant petition, petitioner alleges that his I-130 Immigrant Visa Petition was approved on June 10, 2005, based on his marriage to an American citizen. (Pet.'s Mem. ISO TRO and Pet. at 3.) Additionally, petitioner alleges that he has had two immigration interviews with regard to his I-485 petition for Adjustment of Status. (Id.) During his most recent immigration interview, petitioner alleges that the immigration officer informed he and his wife that his I-485 application would likely be approved. (Id.)

  In spite of petitioner's pending immigration applications, petitioner was arrested on August 17, 2005 by officers from the Department of Homeland Security. Petitioner alleges that he is currently in custody and is subject to immediate deportation based on the final deportation order issued in 1995 by the Immigration Judge.

  DISCUSSION

  A. Legal Standard

  On May 11, 2005, the President of the United States signed into law the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief Act, 2005 (the "Act"). Title I, Section 106 of the Act amends Section 242 of the Immigration and Nationality Act (the "INA").*fn1 Specifically, the Act strips United States District Courts of jurisdiction over challenges to final orders of removal under the INA. Section 1252 now provides:

(5) EXCLUSIVE MEANS OF REVIEW — 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, 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). For purposes of this Act, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms `judicial review' and `jurisdiction to review' include habeas corpus review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5) (emphasis added). The amendment is retroactive and "appl[ies] to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of the enactment of this division." Pub.L. No. 109-13, Title I, § 106(b).

  B. Analysis

  In this case, petitioner argues that this Court retains jurisdiction over his petition and request for a TRO because he is challenging his detention, rather than his final order of removal. However, petitioner's detention in this case stems directly from the final order of removal issued by the Immigration Judge on October 10, 1995. As a result, while petitioner's immediate goal may be to be released from custody, the merits of his section 2241 petition contest the validity of the final order of removal.

  Because petitioner challenges his final order of removal, Public Law 109-13, enacted on May 11, 2005, strips this Court of jurisdiction, and instead vests jurisdiction within the Ninth Circuit Court of Appeal. As a result, the Court DENIES petitioner's request for an emergency TRO and DISMISSES the petition for lack of jurisdiction.

  IT IS SO ORDERED.

20050822

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