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Palacios-Bernal v. Barr

United States District Court, C.D. California

October 22, 2019

WILLIAM P. BARR, United States Attorney General, Respondent.




         On October 14, 2019, Ana Karin Palacios-Bernal (“Petitioner”), represented by counsel, filed a document entitled “Petition in the Nature of Writ of Habeas Corpus and Application for Stay of Removal.” (“Petition, ” ECF No. 1.) The Court construes the Petition as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (“Section 2241”).[1] Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”) and the Court's obligation to consider its own jurisdiction, the Petition must be dismissed.


         Petitioner is a citizen of Guatemala who resides in this District. (Petition 1.) She is presently in the custody and control of United States Attorney General William P. Barr (“Respondent”) in that she is subject to removal from the United States. (Petition 1-2.) Petitioner avers that she “has been the victim of a crime and will be the beneficiary of a ‘U' visa[2] entitling her to remain in the United States.” (Petition 2.) Despite this, Respondent will not postpone her removal. (Id.) Petitioner challenges her imminent removal, “which will deny her the ability to utilize the benefits and advantages of a ‘U' visa.” (See id.) Petitioner prays for a stay of removal until her purported U visa expires. (Id.)

         On October 14, 2019, Petitioner filed a document entitled “Motion for Emergency Stay of Removal Pending Petition in the Nature of Writ of Habeas Corpus.” (“Motion, ” ECF No. 2.) Petitioner stated that she is scheduled to be removed to Guatemala on October 24, 2019, and that Respondent will not postpone her removal. (Id. at 2.) Petitioner requested an order staying her removal pending adjudication of the Petition. (Id.) On October 16, 2019, Respondent filed a document entitled “Respondents' Opposition to Petitioner's Motion for Emergency Stay of Removal Pending Petition for Writ of Habeus [sic] Corpus.” (ECF No. 6.) Respondent argued that the Court should deny the Motion because (1) the Court lacks jurisdiction over removal proceedings, (2) Petitioner failed to exhaust administrative remedies, and (3) Petitioner failed to establish she is qualified for or has applied for a U visa. (Id. at 1.) Respondent also noted that Petitioner did not provide adequate notice of the Motion. (Id. at 1 & n.1.) The Court denied Petitioner's Motion on October 17, 2019. (ECF No. 7.) The Court construed the Motion as a request for a temporary restraining order and concluded that Petitioner failed to meet the procedural requirements for requesting a temporary restraining order without adequate notice to Respondent and failed to address the factors relevant to her. (Id. at 2-4.) At that time, the Court declined to decide whether it had jurisdiction over the action. (Id. at 2.)

         On October 21, 2019, Petitioner filed a document entitled “Amended Motion for Emergency Stay of Removal Pending Petition for Writ of Habeas Corpus.” (“Amended Motion, ” ECF No. 8.) She again seeks a stay of her removal pending the resolution of this action. (Id. at 2.) Petitioner states that irreparable harm will result absent a stay of removal, that she is likely to succeed on the merits, that the government will not be prejudiced by a stay of removal, that petitioner is not a danger to society, and that the public interest in law enforcement favors granting a stay. (Id.) Petitioner includes in her Amended Motion papers a declaration from her counsel (ECF No. 8-1), the police report describing the criminal activity undergirding her U visa application (ECF No. 8-2), and a photograph of a document entitled “Notice to Obligor to Deliver Alien” (ECF No. 9). Respondent filed an opposition to the Amended Motion on October 22, 2019, reiterating and elaborating upon the three arguments presented in the opposition to the original Motion. (ECF No. 10.)


         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”) requires summary dismissal of a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See also Habeas Rule 1(b) (permitting district courts to apply Habeas Rules to Section 2241 habeas proceedings); Lane v. Feather, 584 Fed.Appx. 843, 843 (9th Cir. 2014) (affirming district court's application of Habeas Rule 4 to dismiss Section 2241 petition). Additionally, a federal court is obligated to consider sua sponte whether it has subject matter jurisdiction over a Section 2241 petition. See Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006). Here, the Court lacks jurisdiction over the Petition, which subjects this action to summary dismissal.

         Federal district courts are authorized to grant a writ of habeas corpus under Section 2241 where a petitioner is “in custody under or by color of the authority of the United States . . . in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2241(c)(1), (3). “The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention, ” including individuals subject to a final deportation order. Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012); see also Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995). However, pursuant to 8 U.S.C. § 1252(g) (“Section 1252(g)”), federal courts lack jurisdiction to extend habeas review under Section 2241 to “any cause or claim by or on behalf of any alien arising from the decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders against any alien.” “Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999) (“AADC”). Although the Supreme Court has acknowledged that Section 1252(g) “applies to only a limited subset of deportation claims, ” the Court also has observed that the “discretionary determinations” enumerated in the statute are not reviewable. Id. at 483, 485, 487; see also Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018) (noting that the AADC decision “did not interpret this language to sweep in any claim that can technically be said to ‘arise from' the three listed actions”; instead, the Court “read the language to refer to just those three specific actions themselves” (citing AADC, 525 U.S. at 482-83)); Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (“[W]e have limited [Section 1252(g)'s] jurisdiction-stripping power to actions challenging the Attorney General's discretionary decisions to initiate proceedings, adjudicate cases, and execute removal orders.”); Catholic Soc. Servs. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (“[Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.”).

         Here, Petitioner does not argue that the removal order is invalid, that Respondent's refusal to postpone removal is unlawful, or that the process by which Respondent has sought her removal is inappropriate in any way. Petitioner has not alleged that any constitutional provision, federal law, or treaty has been violated by Respondent's discretionary decision not to stay her removal. Indeed, the Petition, which consists entirely of a jurisdictional statement, sparse factual allegations, and a prayer for relief, lacks legal claims justifying the requested relief. (See generally Petition.) Nor can the Court discern from the Petition what federal law Respondent allegedly has violated by exercising the prosecutorial discretion to enforce the removal order. Indeed, “[t]he filing of a [U visa petition] has no effect on [Immigration and Customs Enforcement's (“ICE”)] authority to execute a final order [of removal, deportation, or exclusion].” 8 C.F.R. § 214.14(c)(1)(ii). Instead, given Petitioner's requested relief, it appears that Petitioner seeks judicial intervention by means of the great writ to enjoin Respondent from proceeding with her scheduled removal despite her purported eligibility for a U visa.[3] (See Petition 1-2.) Based on the cursory allegations in the Petition, Section 1252(g) divests the Court of jurisdiction to intervene.

         Balogun v. Sessions, 330 F.Supp.3d 1211 (C.D. Cal. 2018), is directly analogous to the case at bar. The petitioner in Balogun was subject to a final order of removal, but he also was awaiting a final decision on his application for a U visa. 330 F.Supp.3d at 1211. He requested stays of removal pending decision of the application, but only one stay was granted. Id. at 1211-12. He filed a Section 2241 petition and Administrative Procedure Act complaint in this District Court, seeking to enjoin ICE from executing his removal pending a final decision on his U visa application. Id. at 1212. The petitioner did not contest the validity or legality of his removal order, did not dispute that the government had discretionary authority to stay his removal pending the decision of his U visa application, and did not dispute that the government could grant him a U visa even after his removal from the United States. Id. The petitioner argued that Section 1252(g) did not strip the Court of its habeas jurisdiction because ICE “failed to follow its own internal agency guidance that favors postponing removal, ” which was arbitrary and capricious and an abuse of discretion. Id. The Court rejected the argument:

[A] challenge to ICE's refusal to stay removal is the paradigmatic claim arising from a decision to execute a removal order. If ICE's enforcement discretion is to mean anything, it must include the discretion to decide whether and when to start removal proceedings and execute removal orders. . . . [T]he refusal to stay removal cannot be . . . a legally-distinct decision somehow divisible from the decision to execute removal. ...

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