United States District Court, N.D. California
ORDER GRANTING RESPONDENTS’ MOTION TO DISMISS;
DENYING PETITIONER’S MOTION FOR A TEMPORARY RESTRAINING
ORDER DOCKET NO. 17
M. CHEN United States District Judge.
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.
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
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
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.
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.). 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.
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.
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.
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.
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
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.
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 ...