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Lopez v. Johnson

United States District Court, C.D. California

January 23, 2015

BENITO PEREZ LOPEZ, Petitioner,
v.
JEH JOHNSON, et al., Respondents.

ORDER DENYING PETITION FOR AN EMERGENCY STAY OF REMOVAL AND DISMISSING ACTION

OTIS D. WRIGHT, II, District Judge.

I. SUMMARY

On January 14, 2015, Benito Perez Lopez ("petitioner"), who is represented by counsel in this action, filed an unverified Petition for an Emergency Stay of Removal ("Petition") with exhibits ("Petition Ex."), essentially seeking an order directing respondents to stay his removal from the United States pending further proceedings.

On January 15, 2015, respondents filed an opposition to the Petition ("Opposition") with exhibits ("Opp. Ex."), arguing that the Petition should be dismissed because this Court lacks subject matter jurisdiction pursuant to the Real ID Act and because the Petition is moot as petitioner was removed from the United States on January 14, 2015.

For the reasons discussed below, the Petition is denied and this action is dismissed.

II. BACKGROUND

Petitioner is a native and citizen of Mexico who last entered the United States in or about March 1989. (Petition at 5; Opp. Ex. 1 at 1).

Removal proceedings were originally initiated against petitioner in August 2001. (Opp. Ex. 1 at 5). An immigration judge found him removable and granted him a voluntary departure for the period of October 6, 2005 to December 4, 2005. (Petition Ex. 3; Opp. Ex. 1 at 5). He appealed to the Board of Immigration Appeals ("BIA") on October 28, 2005. (Opp. Ex. 1 at 5). The BIA dismissed the appeal on March 15, 2007 and granted petitioner a voluntary departure to sixty (60) days from the date of such order. (Opp. Ex. 1 at 5). He thereafter apparently made multiple other unsuccessful attempts to pursue immigration relief, including filing a motion to reopen with the BIA and filing five petitions with the United States Court of Appeals for the Ninth Circuit appealing BIA actions. (Opp. Ex. 1 at 5).[1] As of at least June 9, 2014, a final removal order was in place. (Opp. Ex. 3).

Meanwhile, on February 21, 2014, petitioner's son filed an I-130 visa petition for petitioner which was approved on March 18, 2014, and is apparently currently being processed by the Department of State National Visa Center. (Petition Ex. 5).

On September 19, 2014, petitioner through counsel, requested that the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") exercise prosecutorial discretion to join in a motion to reopen his case. (Petition Ex. 1 at 1-3). On November 5, 2014, ICE denied such request. (Petition Ex. 2).

On November 21, 2014, petitioner was convicted of driving under the influence for which he had been arrested on July 4, 2014. (Opp. Ex. 1 at 5). Such offense appears to qualify as a "significant misdemeanor" for immigration purposes. (Opp. Ex. 1 at 7).

On January 14, 2015, petitioner was arrested on a warrant of removal/ deportation based upon a final order by the BIA and left this country on foot. (Opp. Ex. 1 at 1-2).

III. DISCUSSION

Petitioner appears to argue that the Court should issue an emergency stay because (1) the National Visa Center is currently processing the visa for him resulting from his son's above-referenced I-130 application that was approved in March 2014; and (2) he will likely qualify for the "Deferred Action program" announced by the President on November 20, 2014 which will not "officially start" until May 5, 2015. (Petition at 2). He claims that this Court has jurisdiction because he assertedly has been "deprived of his right to have his immigration status adjudicated and corrected under the relevant statutes, laws and case interpretations of the United States" due to the asserted fraud/incompetence of petitioner's lawyers/advisors and due to respondents' assertedly incorrect assessment that his prior conviction qualifies as a "significant misdemeanor" so as to disqualify him from eligibility for the anticipated Deferred Action program. He claims he is ...


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