United States District Court, S.D. California
August 22, 2005.
GUILLERMO GRANADOS, Petitioner,
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
[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.
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
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).
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.
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