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Moulic v. United States

United States District Court, C.D. California

September 11, 2014

ERNESTO MOULIC, JR., Petitioner,
v.
UNITED STATES OF AMERICA; JEH JOHNSON, Defendants.

ORDER DENYING EMERGENCY MOTION TO STAY REMOVAL [2]

OTIS D. WRIGHT, II, Magistrate Judge.

I. INTRODUCTION

On September 5, 2014, Petitioner Ernesto Moulic, Jr. filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 and an Emergency Motion to Stay Removal. (ECF Nos. 1, 2.) Moulic indicates that he is currently being held by the United States Department of Immigration and Customs Enforcement ("ICE") at its Adelanto Detention Facility in Adelanto, California. After considering Moulic's current and previously filed Petitions, Motion, and Ninth Circuit appeal of the Board of Immigration Appeals's ("BIA") decision, the Court finds that it lacks jurisdiction over Moulic's habeas corpus petition-and consequently over his stay-of-removal request. The Court thus DENIES Moulic's Emergency Motion. (ECF No. 2.)

II. PROCEDURAL HISTORY

A jury convicted Moulic of violating California Penal Code section 288.1 (lewd act with a minor). The trial court sentenced him to three years' imprisonment, which Moulic served. On October 22, 2012, after serving his state sentence, ICE picked Moulic up from state custody and detained him in immigration custody.

ICE served Moulic with a Notice to Appear under Immigration and Nationality Act ("INA") § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), which defines an "aggravated felony" as, among others, sexual abuse on a minor. An immigration judge eventually ordered Moulic's removal and denied discretionary relief. Moulic appealed the immigration judge's decision to the BIA. But on October 30, 2013, the BIA dismissed his appeal.

On November 26, 2013, Moulic appealed the BIA's decision to the Ninth Circuit Court of Appeals. Moulic v. Holder, No. 13-73902 (9th Cir. appeal filed Nov. 26, 2013). On August 19, 2014, the Ninth Circuit denied Moulic's motion for a stay of removal. Moulic then filed an emergency motion for a stay of mandate, which the court also denied.

On August 11, 2014, Moulic filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 in this Court. Moulic, Jr. v. California, No. 2:14-cv-06426-ODW(KKx) (pet. filed Aug. 11, 2014). Magistrate Judge Kato subsequently issued an Order to Show Cause Why This Action Should Not Be Dismissed, noting that the Court lacked jurisdiction. Judge Kato reasoned that since Moulic was no longer "in custody' under the conviction or sentence under attack at the time his petition [was] filed, " Moulic was not "in custody" under the meaning of 28 U.S.C. § 2241. See Maleng v. Cook, 490 U.S. 488, 490-91. That Order to Show Cause is still pending.

On September 5, 2014, Moulic filed an identical Petition in the Eastern Division of this Court, together with this Motion. (ECF Nos. 1, 2.) That Motion is now before the Court for decision.

III. LEGAL STANDARD

The Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") changed the default rule in favor of stays pending appeals of BIA decisions, now providing that service of a petition seeking a stay of a final order of removal "does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise." 8 U.S.C. § 1252(b)(3)(B). Despite this change in the law, the Ninth Circuit concluded that its pre-IIRIRA stay-of-removal test still applied. Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001).

To qualify for a stay of removal, a petitioner must demonstrate "either (1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor.'" Id. (quoting Abbassi v. I.N.S., 143 F.3d 513, 514 (9th Cir. 1998)).

IV. DISCUSSION

The Court finds that it lacks jurisdiction to consider Moulic's habeas corpus petition and therefore cannot grant the ...


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