United States District Court, N.D. California
ORDER DENYING MOTION TO STAY DEPORTATION RE: DKT. NO.
ILLSTON UNITED STATES DISTRICT JUDGE
Aldo Martinez Contreras (“Contreras”) was
deported in 2005 after serving a sentence for a crime that
resulted in mandatory deportation. He reentered the United
States and, years later, was charged in this case with a
single count of illegal reentry following removal, 8 U.S.C.
§ 1326. On March 18, 2016, Contreras pled guilty. Dkt.
Nos. 46-47. The Court sentenced defendant to 28 months in
prison and entered judgment accordingly. Dkt. No. 54.
April 17, 2017, Contreras filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
Dkt. No. 55. In brief, Contreras claims ineffective
assistance of counsel in connection with the California state
conviction that led to his initial deportation in 2005.
Contreras alleges that his counsel in state court failed to
adequately inform him of the mandatory deportation that would
follow his prison sentence in that case. He alleges that this
rendered his 2001 no contest plea “involuntary.”
The government will oppose Contreras's § 2255 motion
in the coming weeks. Dkt. No. 58.
8, 2017, Contreras filed a motion to stay deportation and to
be released pending resolution of his § 2255 motion.
Dkt. No. 59. The government opposes the motion. Dkt. No. 61.
As set forth below, the Court DENIES Contreras's motion
government contends that the Court lacks jurisdiction to
order a stay of Contreras's deportation. The Court
disagrees. Courts in this District have found that a stay of
deportation constitutes a review of a final order of removal.
See Ma v. Holder, 860 F.Supp.2d 1048, 1060-62 (N.D.
Cal. 2012); Arce v. Holder, No. 12-4063-WHA, 2012 WL
3276994, at *2 (N.D. Cal. Aug. 9, 2012). Under 8 U.S.C.
§ 1252(a)(5), (g), district courts are divested of their
jurisdiction to review final orders of removal. See
Ma, 860 F.Supp.2d at 1060-62; Arce, 2012 WL
3276994, at *2. However, Contreras's motion to
stay comes in the context of a constitutional challenge to a
plea agreement. To be sure, Contreras's plea of no
contest in 2001 eventually led to an order of removal. But
here the Court is not tasked with reviewing the merits of a
final order of removal, such as would trigger the
jurisdiction-stripping provisions of the REAL ID Act. See
Jimenez v. Napolitano, No. 12-3558-RMW, 2012 WL 3144026,
at *4 (N.D. Cal. Aug. 1, 2012) (finding REAL ID Act did not
deprive court of jurisdiction to hear underlying ineffective
assistance claim because petitioner's claim did not
challenge the merits of final order of removal); Singh v.
Gonzalez, 499 F.3d 969, 979-80 (9th Cir. 2007). Instead,
Contreras's § 2255 motion asks the Court to consider
constitutional claims with regard to his 2001 no contest
plea. Consistent with the reasoning in Jimenez, the
Court finds that it has jurisdiction to decide
Contreras's motion to stay.
to the merits of defendant's motion to stay, the Court
may only order a stay upon a finding that defendant probably
faces irreparable harm and that defendant has shown
“either: (a) a strong likelihood of success on the
merits and that the public interest does not weigh heavily
against a stay; or (b) a substantial case on the merits and
that the balance of hardships tips sharply in the
petitioner's favor.” Jimenez v.
Napolitano, No. 12-3558-RMW, 2012 WL 3144026, at *2
(N.D. Cal. Aug. 1, 2012) (quoting Leiva-Perez v.
Holder, 640 F.3d 962, 964 (9th Cir. 2011)). Here, even
assuming that Contreras faces irreparable harm, at this time
he has presented neither “a strong likelihood of
success on the merits” nor “a substantial case on
§ 2255 motion focuses on alleged impropriety surrounding
his no contest plea to criminal charges in Napa Superior
Court some fifteen years before this Court sentenced him for
illegal reentry. As the Court understands Contreras's
claim, he might not have pled no contest in 2001 had he known
he would be deported after serving his sentence. However,
Contreras admits that his attorney told him he might lose his
status as a lawful permanent resident during those
proceedings. See Dkt. No. 55 at 16¶6. He
further admits that his plea agreement stated that his no
contest plea could result in deportation. Id. at 17
¶ 12, 20 ¶ 20; cf. Lee v. United States,
No. 16-327, 2017 WL 2694701, at *9 (U.S. June 23, 2017)
("Courts should not upset a plea solely because of
post hoc assertions from a defendant about how he
would have pleaded but for his attorney's deficiencies.
Judges should instead look to contemporaneous evidence to
substantiate a defendant's expressed preferences.").
On this record, the Court cannot say that Contreras has
presented a substantial case on the merits.
reasons set forth above, the Court hereby DENIES
defendant's motion to stay. The Court reserves ruling on
defendant's § 2255 motion until briefing is
order resolves Dkt. No. 59.
 At this time, the Court will not reach
the issue of whether it is appropriate for defendant to seek
relief under 28 U.S.C. § 2255 where he only challenges a
state court conviction that led to his 2005 removal, upon