Lopez-Velazquez v. Johnson

          ORDER GRANTING RESPONDENTS’ MOTION TO DISMISS; DENYING PETITIONER’S MOTION FOR A TEMPORARY RESTRAINING ORDER DOCKET NO. 17

          EDWARD M. CHEN United States District Judge.

         I. INTRODUCTION

         On March 11, 2016, Petitioner Juan Carlos Lopez-Velazquez filed a petition for writ of habeas corpus. Docket No. 1 (Habeas Pet.). Lopez-Velazquez is currently detained at Yuba County Jail by United States Immigration and Customs Enforcement (ICE), based on a reinstated order of removal. Id. at ¶ 1. Lopez-Velazquez alleges that this order of removal is invalid and void, having been “barred by the doctrine of res judicata.” Id. at ¶ 2. Because Lopez-Velazquez's detention “is to enforce an order that is void, he respectfully requests the Court grant a writ of habeas corpus ordering his immediate release from detention.” Id. An order to show cause was issued on March 21, 2016. Docket No. 9 (OSC).

         In response to the OSC, Respondents filed the instant motion to dismiss. Docket No. 17 (Mot. to Dismiss). Respondents assert that the Court lacks jurisdiction over the petition because Lopez-Velazquez is ultimately challenging the validity of the order of removal, and that the REAL ID Act stripped district courts of habeas jurisdiction over such final orders. Id. at 5. Thus, Lopez-Velazquez's petition must be before the Court of Appeals, where he currently has a petition for review pending. Id. at 7. Alternatively, Respondents contend that Lopez-Velazquez's petition must be dismissed because he failed to exhaust his administrative remedies. Id. at 7 n.2. In turn, Lopez-Velazquez filed an emergency motion for a temporary restraining order (TRO) after the Ninth Circuit denied his motion to stay his removal on July 19, 2016. Docket No. 24 (TRO Mot.).

         On July 28, 2016, Respondents' motion to dismiss and Lopez-Velazquez's TRO motion came on for hearing before the Court. For the reasons stated below, the Court GRANTS Respondents' motion to dismiss and DENIES Lopez-Velazquez's motion for TRO.

         II. BACKGROUND

         Lopez-Velazquez first entered the United States in March 1999, when he was admitted in H2A status (temporary agricultural worker). Habeas Pet. at ¶ 14. On February 1, 2000, Lopez-Velazquez pled no contest to a charge of delivery of a controlled substance, for which he was sentenced to 10 months imprisonment. Id. at ¶ 15. Due to a jailer's error, Lopez-Velazquez was released to the Immigration and Nationality Service (INS) after ten days, and he was thereafter detained and transferred to Arizona. Id.

         Prior to Lopez-Velazquez's February 2000 conviction, INS issued a Notice to Appear on December 1, 1999. Habeas Pet. Exhs. at 4 (December 1999 Not. to Appear). The Notice to Appear charged that Lopez-Velazquez was an alien present in the United States who had not been admitted or paroled. Id. The Notice to Appear was served on Lopez-Velazquez on December 2, 1999. Id. at 5. On February 2, 2000, Lopez-Velazquez made a request for a prompt hearing. Id. INS subsequently moved the Immigration Judge (IJ) to terminate the removal proceedings, and on March 9, 2000, the Immigration Judge terminated the removal proceedings, finding “no opposition from the parties.” Habeas Pet. at ¶ 17; Habeas Pet. Exhs. at 1 (3/9/00 Ord.).^[1] INS did not request that the termination be without prejudice, and the March 9, 2000 Order did not state that the termination was without prejudice. Id.

         On March 8, 2000, INS issued a second Notice to Appear. Habeas Pet. Exhs. at 6 (March 2000 Not. to Appear). This Notice alleged that Lopez-Velazquez was admitted to the United States on a H2A status for a temporary period not to exceed November 2, 1999, but that he had remained in the United States beyond November 2, 1999 without authorization from the INS. Id. The Notice also stated that Lopez-Velazquez had been convicted of delivery of a controlled substance. Id. Thus, it charged that Lopez-Velazquez was removable for: (1) remaining in the United States for a time longer than permitted, per Section 237(a)(1)(B) of the Immigration and Nationality Act (INA); (2) being convicted of an aggravated felony, per Section 237(a)(2)(A)(iii) of the INA; and (3) being convicted of a violation of any law or regulation relating to a controlled substance, per Section 237(a)(2)(B)(i) of the INA. Id. During the removal proceedings, Lopez-Velazquez made arguments based on res judicata. Habeas Pet. at ¶ 19. On March 17, 2000, the IJ granted removal based on the three charges, and ordered Lopez-Velazquez removed from the United States. Habeas Pet. Exhs. at 2; Docket No. 17-1 (Respondents' Exhs.), Exh. A.

         Lopez-Velazquez was removed pursuant to the IJ's March 17, 2000 Order. Habeas Pet. at ¶ 20. He then re-entered the United States around September 15, 2000. Respondents' Exhs., Exh. B. On September 18, 2000, the March 17, 2000 removal order was reinstated, which Lopez-Velazquez did not contest. Id. He was subsequently removed. Respondents' Exhs., Exh. H at 3.

         Lopez-Velazquez again re-entered the United States at an unknown time. On January 7, 2016, he was arrested by ICE. Habeas Pet. at ¶ 20. That same day, ICE filed a notice of intent/decision to reinstate the March 17, 2000 removal order. Id. at ¶ 21; Respondents' Exhs., Exh. C. ICE did not file a new Notice to Appear asserting any new factual allegations. Habeas Pet. at ¶ 21.

         While detained, Lopez-Velazquez asserted a fear of persecution if he was removed, and he was placed in reasonable fear proceedings. On January 13, 2016, an asylum officer determined that Lopez-Velazquez had not established a reasonable fear of persecution. Respondents' Exhs., Exh. D at 3. Lopez-Velazquez requested IJ review, and on January 25, 2016, the IJ affirmed ICE's reasonable fear determination. Habeas Pet. at ¶ 22; Respondents' Exhs., Exh. G. Lopez-Velazquez timely filed a petition for review with the Ninth Circuit, which remains pending before the Ninth Circuit. Habeas Pet. at ¶ 23. In his petition for review, Lopez-Velazquez challenges the validity of the underlying order of removal, on the ground that res judicata applies (based on termination of the removal proceedings in 2000). Case No. 16-70231, Docket No. 1-3 (Petition for Review & Mot. for Stay of Removal) at 2-5. A temporary stay of removal was put in effect pending further order.

         Lopez-Velazquez then filed the instant petition for a writ of habeas, asserting two causes of action. First, he alleges that his detention violates the INA because the IJ terminated the original removal proceedings in 2000, and thus res judicata barred the subsequent removal proceedings. Id. at ¶ 25. Thus, “because the IJ had already ruled in [Lopez-Velazquez]'s favor, he was wholly without any authority to enter the [removal] order. Consequently, [Lopez-Velazquez]'s continued detention pursuant to that order (or a reinstatement of it) is unlawful.” Id. at ¶ 32. Second, Lopez-Velazquez asserts a violation of his Fifth Amendment due process right, specifically the right to be free of non-criminal detention without adequate justification and sufficient procedural safeguards. Id. at ¶ 34. Lopez-Velazquez contends that that the IJ never had authority to enter the removal order, and thus he cannot be held under its authority. His “custody challenge . . . in essence asks the Court to find that he is likely to prevail in his Ninth Circuit appeal because the IJ lacked jurisdiction to enter an order of removal . . . .” Id. at ¶ 41.

         On July 19, 2016, the Ninth Circuit denied Lopez-Velazquez's motion for stay and supplemental motion for a stay of the removal. Case No. 16-70231, Docket No. 11. Lopez-Velazquez then moved this Court for a TRO enjoining his removal. TRO Mot. at 2. The Court set Lopez-Velazquez's TRO motion for hearing on the same day as Respondents' motion to dismiss. Docket No. 30. Lopez-Velazquez then learned that his deportation was scheduled for July 26, 2016, and filed a second motion for a TRO. Docket No. 31. The Court granted the motion, temporarily enjoining the removal for seven ...