1 2 3 4 5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE CENTRAL DISTRICT OF CALIFORNIA

7 Bye 9 | JUAN ROLANDO HERNANDEZ NO. CV 24-10826-ODW (AGR)

AGUILAR,

10 OPINION AND ORDER ON Petitioner, |} EMERGENCY PETITION FOR WRIT OF 11 HABEAS CORPUS (28 U.S.C. § 2241)) V. 12

DARIUS J. KIRKSEY, DHS/ICE

13 | SUPERVISOR VENTURA SUB-

OFFICE,

14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 On December 16, 2024, Petitioner, a noncitizen and a Mexico national, filed 20 || an Emergency Petition for Writ of Habeas Corpus by a Person in Federal Custody 21 || (‘Emergency Petition”) under 28 U.S.C. § 2241. (Dkt. No. 1.)' The next day, 22 || Petitioner filed a supporting memorandum. (Dkt. No. 3.) Petitioner is represented 23 || by counsel. 24 The Emergency Petition asks the Court to issue injunctive relief in the form 25 | of Petitioner's release and a stay of Petitioner’s removal from the United States 26 ' Citations are to the page and docket numbers generated by the Case Management Electronic Case Filing (“CM/ECF”) system in the header of each 27 || document. 28

1 which was apparently set to occur as early as December 16, 2024. Petitioner 2 seeks a stay of removal to allow the Board of Immigration Appeals (ABIA@) to 3 consider and rule on a pending motion to reopen filed concurrently with this 4 Emergency Petition and, if necessary, any subsequent petition for review in the 5 Ninth Circuit Court of Appeals. An attachment to the Petition indicates 6 Petitioner’s counsel filed a motion for emergency stay before the BIA. 7 The Court lacks jurisdiction to grant the relief Petitioner seeks because the 8 Immigration and Nationality Act (AINA@), as amended by the REAL ID Act of 2005, 9 Pub. L. No. 109-13, 119 Stat. 231, 302, vests sole authority to review final orders 10 of removal, claims arising from actions and proceedings brought in connection 11 with removals, and claims arising from Executive Branch decisions to execute 12 removal orders, in the Ninth Circuit Court of Appeals. 13 II. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Petitioner is a noncitizen and a national of Mexico. He entered the United 16 States as an infant. (Dkt. No. 3 at 1.) Petitioner has been engaged in 17 immigration proceedings for quarter of a century. The immigration proceedings 18 against Petitioner commenced in 1999 when he was found removable based on a 19 conviction for violating Cal. Health & Safety Code ' 11379(a), a drug charge 20 involving methamphetamine. (Dkt. No. 3 at 8.) He was ordered removed on 21 January 28, 2005 and is currently subject of a final order of removal. (Id. at 1; 22 Emergency Petition at 4.) 23 Over the years, Petitioner repeatedly sought relief from removal before the 24 BIA and in the Ninth Circuit Court of Appeals. (Id. at 2, 4-5; Dkt. No. 3 at 2-3.) 25 Petitioner also unsuccessfully challenged the underlying drug conviction in 26 California state courts. (Id. at 8.) 27 Relevant here, in 2010, the Ninth Circuit Court of Appeals denied 28 Petitioner=s petition for review challenging the BIA=s decision affirming the 1 immigration judge=s (AIJ@) final order of removal against Petitioner. See 2 Hernandez-Aguilar v. Holder, 594 F.3d 1069 (9th Cir. 2010). The Ninth Circuit 3 agreed with the BIA=s finding that Petitioner=s conviction for violating Cal. Health & 4 Safety Code ' 11379(a), which involved methamphetamine, rendered him 5 removable under 8 U.S.C. ' 1182(a)(2). Id. at 1073. 6 Petitioner subsequently unsuccessfully filed multiple motions to reopen and 7 motions to reconsider prior decisions with the BIA. (Emergency Petition at 2.) 8 The petitions for review from 2011, 1018, and 2019 motions were considered and 9 rejected by the Ninth Circuit in Hernandez-Aguilar v. Garland, 2022 WL 874183 10 (9th Cir. 2022). With respect to Petitioner=s challenge of the BIA=s denial of his 11 2011 motion to reopen, the Ninth Circuit found no legal or constitutional error, and 12 determined that it lacked jurisdiction to consider Petitioner=s attacks on the BIA=s 13 factual determinations. With respect to the 2018 and 2019 motions to reopen and 14 motions to reconsider, the Court held that Petitioner waived any objection to the 15 BIA=s finding that all the motions were either time or number-barred. With respect 16 to Petitioner=s three motions asking the BIA to sua sponte reopen his case, the 17 Ninth Circuit held that it lacked jurisdiction to review the BIA=s decisions. Id. at *1. 18 On Monday, December 16, 2024, Petitioner reported to the Camarillo office 19 of the Ventura Sub-Office of the Department of Homeland Security (ADHS@) 20 Immigration and Customs Enforcement (AICE@) office. He was taken into custody 21 and informed that he would be removed to Mexico that same day or evening. 22 (Dkt. No. 3 at 2; Emergency Petition at 1.) Petitioner contacted counsel who in 23 turn contacted Respondent, the supervisor of the DHS ICE Ventura sub office. 24 (Dkt. No. 3 at 2.) Petitioner=s counsel asked Respondent for time to seek relief on 25 Petitioner=s behalf the following day, December 17, 2024, but was informed that 26 the office had no place to temporarily hold Petitioner and that Petitioner would be 27 removed that same day. (Id.) On the same day, counsel filed the underlying 28 1 Petition and a Motion to Reconsider Petitioner’s removal order and stay of 2 removal with the BIA. (Id. at 8; Emergency Petition at 1.) 3 It is unknown to the Court whether Petitioner has been removed to Mexico 4 or currently remains in the United States, or whether the BIA ruled on Petitioner=s 5 latest motion(s). 6 III. 7 DISCUSSION 8 The Emergency Petition sets forth four grounds for the requested relief. 9 Petitioner contends that: (1) his due process rights were violated when counsel 10 was not given notice and Petitioner was detained to be removed the same day; 11 (2) the BIA violated the Administrative Procedure Act (AAPA@) by failing to address 12 evidence in the record; (3) the Agency decision was arbitrary and capricious and 13 subject to judicial review under Loper Bright Enterprises v. Raimondo, 114 S. Ct. 14 224 (2024); and (4) ADHS/ICE has taken extraordinary measures to remove the 15 Petitioner with no notice.@ (Emergency Petition at 6-7; Dkt. No. 3 at 9-10.)2 16 Before the Court can consider the merits of Petitioner=s claims, it must first 17 determine whether it has jurisdiction to grant the emergency relief Petitioner 18 seeks B a stay of the BIA=s final order of removal so the BIA can adjudicate 19 Petitioner=s pending motion to reopen based on purported changes in governing 20 law. As discussed below, the REAL ID Act divests this Court of jurisdiction over 21 Petitioner=s request and places it in the Ninth Circuit Court of Appeals. 22

23 2 Petitioner concedes that Grounds One, Three, and Four are unexhausted. (Emergency Petition at 6-7.) 24 The Memorandum of Points and Authorities accompanying the Emergency 25 Petition sets forth two grounds for relief contending that Petitioner=s detention and imminent removal without the opportunity for a full and fair hearing on his new 26 claims for relief violates his right to substantive and procedural due process rights and his right to counsel (Count One), and challenges the validity of the underlying 27 removal order (Count Two). (Dkt. No. 3 at 9-10.) 28 1 A. Applicable Law 2 The Supreme Court has admonished that, A[f]ederal courts are courts of 3 limited jurisdiction. They possess only that power authorized by Constitution and 4 statute, which is not to be expanded by judicial decree.@ Kokkonen v. Guardian 5 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). As amended by 6 the REAL ID Act, 8 U.S.C. ' 1252 governs judicial review of orders of removal. 7 Three subsections are of particular relevance here. 8 Subsection 1252(a)(5), the exclusivity clause, states as follows: 9 Notwithstanding any other provision of law (statutory or nonstatutory), 10 including section 2241 of Title 28, or any other habeas corpus 11 provision, and sections 1361 and 1651 of such title, a petition for 12 review filed with the appropriate court of appeals in accordance with 13 this section shall be the sole and exclusive means for judicial review 14 of an order of removal entered or issued under any provision of this 15 chapter, except as provided in subsection (e) of this section. For 16 purposes of this chapter, in every provision that limits or eliminates 17 judicial review or jurisdiction to review, the terms Ajudicial review@ and 18 Ajurisdiction to review@ include habeas corpus review pursuant to 19 section 2241 of Title 28, or any other habeas corpus provision, 20 sections 1361 and 1651 of such title, and review pursuant to any 21 other provision of law (statutory or nonstatutory). 22 Congress further clarified the scope of jurisdiction in subsection (b)(9), 23 which states that: 24 Judicial review of all questions of law and fact, including nterpretation 25 and application of constitutional and statutory provisions, arising from 26 any action taken or proceeding brought to remove an alien from the 27 United States under this subchapter shall be available only in judicial 28 review of a final order under this section. Except as otherwise 1 provided in this section, no court shall have jurisdiction, by habeas 2 corpus under section 2241 of Title 28, or any other habeas corpus 3 provision, by section 1361 or 1651 of such title, or by any other 4 provision of law (statutory or nonstatutory), to review such an order or 5 such questions of law or fact. 6 8 U.S.C. ' 1252(b)(9). 7 Finally, subsection (g) states in relevant part: Ano court shall have 8 jurisdiction to hear any cause or claim by or on behalf of an alien arising from the 9 decision or action by the Attorney General to . . . execute removal orders against 10 any alien under this chapter.@ 8 U.S.C. ' 1252(g). 11 The Ninth Circuit has explained that, A' 1252(a)(5) and ' 1252(b)(9) mean 12 that any issue B whether legal or factual B arising from any removal-related 13 activity can be reviewed only through the PFR process.@ J.E.F.M. v. Lynch, 837 14 F.3d 1026, 1031 (9th Cir. 2016). It has further noted that these Anew judicial 15 review provisions were designed to make perfectly clear >that only courts of 16 appeals B and not district courts B could review a final removal order,= that >review 17 of a final removal order is the only mechanism for reviewing any issue raised in a 18 removal proceeding,= and that the statute was >intended to preclude all district 19 court review of any issue raised in a removal proceeding.=@ Id. at 1034 (quoting 6 20 H.R. Rep. No. 109-72, at 173) (added emphasis). 21 The INA thus provides exclusive judicial review through the petition for 22 review process in the Court of Appeals. 23 B. Analysis 24 The Emergency Petition asks this Court to stop the immigration removal 25 process. In other words, Petitioner seeks this Court’s intervention in the 26 execution of the removal order against him. It is thus indisputable that Petitioner=s 27 claims Aarise from@ removal proceedings under section 1252(b)(9). As such, his 28 claims for relief must be channeled through the petition for review process. See 1 Lynch, 837 at 1033 (AThe legislative history of the INA, as well as amendments to 2 ' 1252(b)(9), confirm that Congress intended to channel all claims arising from 3 removal proceedings . . . to the federal courts of appeals and bypass the district 4 courts.@) (added emphasis). 5 AWhen a claim by an alien, however it is framed, challenges the procedure 6 and substance of an agency determination that is Ainextricably linked@ to the order 7 of removal, it is prohibited by section 1252(a)(5).@ Martinez v. Napolitano, 704 8 F.3d 620, 623 (9th Cir. 2012). All of Petitioner=s claims are inextricably linked to 9 the removal order and thus outside of this Court=s jurisdiction.3 See id. at 622 (A8 10 U.S.C. ' 1252(a)(5) prohibits Administrative Procedure Act claims that indirectly 11 challenge a removal order@). 12 Petitioner does not address the REAL ID Act or section 1252 in either the 13 Emergency Petition or the accompanying Memorandum. (See Emergency 14 Petition & Dkt. No. 3.) He acknowledges that, A[i]f the [BIA] denies Petitioner=s 15 Motion for Stay, then Petitioner has a right to obtain an automatic stay by filing a 16 Petition for Review with the Ninth Circuit Court of Appeals.@ (Dkt. No. 3 at 7.) 17 Petitioner, however, does not explain why he believes that he can bypass waiting 18 for the BIA=s and Ninth Circuit=s decisions, and get relief from this Court when 19 various subsections of 8 U.S.C. ' 1252 explicitly preclude it. Insofar as Petitioner 20 seeks a stay of the BIA=s final order of removal, which was previously upheld by 21 the Ninth Circuit, the REAL ID Act strips this Court of jurisdiction to consider such 22 a request. 23 24 3 Neither length of detention, conditions of confinement, nor the availability of 25 bond hearings are not at issue in this case. Cf. Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (noting that there is jurisdiction to review the legality of detention 26 under section 1225(b) where petitioners are Anot asking for review of an order of removal; ... not challenging the decision to detain them in the first place or seek 27 removal; and ... not even challenging any part of the process by which their removability will be determined.@). 28 1 Petitioner alleges that he was denied due process when Respondent tried 2 to remove him from the United States shortly after he was detained on December 3 16, 2024. He faults Respondent for not notifying his counsel or deferring removal 4 so that counsel can mount further legal challenges to its validity. Petitioner cites 5 no law, statutory or otherwise, that entitles him to notice that the final removal 6 order entered almost two decades ago will be effectuated. Petitioner had ample 7 opportunity to, and in fact did mount numerous legal challenges to the removal 8 order, the last of which was rejected by the Ninth Circuit over two years before his 9 recent detention and impending removal.4 Petitioner concedes that he is not a 10 United States citizen and is subject to an administratively final removal order. 11 (See Dkt. No. 3 at 1.) As noted above, the plain text of section 1252(g) precludes 12 the Court from considering claims challenging the order=s execution. 13 None of the cases cited in the Emergency Petition help Petitioner bypass 14 the jurisdictional bars set forth in section 1252. In fact, in Wilkinson v. Garland, 15 the Supreme Court held that the agency=s hardship determination in the 16 cancellation of removal context is reviewable under section 1252(a)(2)(D), which 17 gives Courts of Appeals jurisdiction to review questions of law.=@ 601 U.S. 209, 18 212 (2024) (added emphasis). Contrary to Petitioner=s contention, nothing in 19 Wilkinson alters the mandates of section 1252(a)(5)=s exclusivity clause. 20 In sum, the Court lacks jurisdiction to grant the relief Petitioner seeks 21 because the INA, as amended by the REAL ID Act of 2005, vests sole authority to 22 review final orders of removal, claims arising from actions and proceedings 23 brought in connection with removals, and claims arising from Executive Branch 24 4 Although the Astatutory scheme was designed to >limit all aliens to one bite of 25 the apple with regard to challenging an order of removal[,]l=@ see Singh v. Gonzales, 499 F.3d 969, 976 (9th Cir. 2007) (citation omitted), Petitioner has had 26 at least three, having the Ninth Circuit review his final order of removal in 2007 (case no. 06-71945), 2010 (same), and 2022 (case nos. 11-73790, 19-71762, & 27 20-70466). 28 1 | decisions to execute removal orders, in the Ninth Circuit Court of Appeals. 2 || Because the court lacks jurisdiction to grant the relief sought, the Petition will be 3 | summarily dismissed. 4 IV. 5 ORDER 6 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing 7 | the Petition and action for lack of jurisdiction. as / ye 9 DATED: _December 19, 2024 10 OTIS D. WRIGHT, II

United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28