Nava

MEMORANDUM **

Edgar Daniel Nava appeals from the denial of his petition for habeas corpus for lack of jurisdiction. For the reasons that follow, we affirm.

On December 29, 2010, an immigration judge ordered Nava removed to Mexico. On April 29, 2011, the Board of Immigration Appeals (BIA) affirmed that decision. On May 5, 2011, Nava filed a petition for review in this court for a stay of the order of removal, which we denied for lack of jurisdiction. On October 25, 2011, an immigration judge set a $20,000 bond, which the BIA later reduced to $7,500. On April 3, 2012, the mandate for the denial of the petition for review issued, which terminated the temporary stay of removal. On April 5, 2012, Nava’s sister attempted to post a bond but was rejected.

On February 17, 2012, while his petition for review was pending, Nava moved before the BIA to reopen proceedings. Nava argued in part that his motion was timely under 8 U.S.C. § 1229a(c)(7)(C)(iv), a provision pertaining to, inter alia, motions to reopen by aliens who have been battered or subjected to extreme cruelty by certain family members. On April 6, 2012, the BIA denied a request for a stay of removal pending its decision on…

dissenting:

The majority affirms the district court’s conclusion that it lacked jurisdiction over Nava’s habeas petition because the petition was filed after he had been removed from the United States. While it is ordinarily true that an alien “cannot avail himself of habeas corpus jurisdiction [where] he has already been removed and therefore is no longer ‘in custody,’ ” Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.2001), we have recognized an “extreme circumstances” exception to this general rule where the alien’s removal was itself unlawful, see id. at 1159 ; Singh v. Waters, 87 F.3d 346, 349 (9th Cir.1996). Because this “extreme circumstances” exception applies here, I respectfully dissent.

The crux of this appeal hinges on an opaque statute, which provides that when an alien moves to reopen his removal proceedings on the basis of a claim that he is eligible for cancellation of removal under the Violence Against Women Act (“VAWA”), see 8 U.S.C. § 1229b(b)(2), that filing “shall only stay the removal of a qualified alien ... pending the final disposition of the motion, including exhaustion of all appeals if the motion establishes that the alien is a qualified alien,” 8…