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Diaz-Amezcua v. Barr

United States District Court, W.D. Washington, Seattle

September 9, 2019

MARTIN DIAZ-AMEZCUA, Petitioner,
v.
WILLIAM BARR, et al., Respondents.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND AND DENYING MOTION TO DISMISS

          BARBARA JACOBS ROTHSTEIN U.S. DISTRICT COURT JUDGE

         I. INTRODUCTION

         Petitioner Martin Diaz-Amezcua (“Petitioner”) is a native and citizen of Mexico who is subject to a final order of removal. He brings this 28 U.S.C. § 2241 habeas action to obtain a judicial stay of removal pending the Board of Immigration Appeals' (“BIA”) adjudication of his motion to reopen his removal proceedings.

         This matter comes before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge Mary Alice Theiler regarding the Motion to Dismiss filed by Respondent William Barr (“Respondent”). That motion seeks dismissal on the grounds that this Court lacks subject matter jurisdiction over the “Emergency Petition for Writ of Habeas Corpus” filed by Petitioner. After careful consideration of the R&R, which recommends denying the Motion to Dismiss, the objections thereto, the relevant legal authority, and the record of the case, the Court finds and rules as follows:

         II. BACKGROUND

         The Court adopts in its entirety the section “II. Background” of the R&R, which is both thorough, and undisputed by either party in this case. See R&R, pp. 2-4. Briefly summarized, Petitioner is a 29-year-old Mexican citizen living in the United States, who is subject to a final order of removal, having entered the U.S. without being admitted or paroled after inspection by an immigration officer. After years of proceedings regarding his removal, including before Immigration Judges (“IJ”), the Board of Immigration Appeals (“BIA”), and the Ninth Circuit, Petitioner was ultimately detained in December 2018, and scheduled for deportation on or about January 2, 2019. Petitioner's instant habeas petition seeks stay of his removal pending a ruling by the BIA on his recently filed motion to reopen removal proceedings, which would enable him to seek asylum. That motion to reopen is based upon alleged changed country conditions in Mexico, which Petitioner claims put him in fear for his safety. More specifically, Petitioner has alleged that in June 2018, his cousin was shot as part of an ongoing gang feud involving his extended family, and that he, Petitioner, would be a target in that feud if returned to Mexico. On January 2, 2019, the Court granted an emergency temporary stay of removal to allow briefing on whether Petitioner is entitled to a stay of removal pending the BIA ruling on his motion to reopen.

         III. DISCUSSION

         A. Standard of Review

         A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         B. The Plain Meaning of 8 U.S.C. §1252 Deprives This Court of Jurisdiction Over Habeas Claims “Arising From” the Execution of Removal Orders

         Respondent seeks dismissal of the petition for lack of jurisdiction, citing 8 U.S.C. § 1252(g). That section provides:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any [noncitizen] arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any [noncitizen] under this chapter.

         The Court concludes, in concurrence with the R&R, that the plain meaning of 8 U.S.C. § 1252(g) would deprive the Court of jurisdiction to stay Petitioner's removal pending resolution of his motion to reopen. Although the Ninth Circuit has not addressed this issue under the exact circumstances presented here, this interpretation is supported by the weight of authority in other circuits, as well as by district courts in the Ninth Circuit, as outlined in the Report and Recommendation. See R&R at 5-8, citing, inter alia, Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018); Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002); Rodriguez-Henriquez v. Asher, No. 14-1719, 2015 WL 778115, at *4 (W.D. Wash. Feb. 24, 2015). This conclusion also comports with an order filed in this district, regarding a previous habeas petition filed by Petitioner in Diaz-Amezcua v. Johnson, No. C14-1313-MJP[1] (“Petitioner's request to stay his removal arises from the decision or action by the Attorney General to execute his removal order, and this Court therefore is without jurisdiction to hear such a claim.”). Here, Petitioner is again asking this Court to stay the order of removal pending resolution of his motion to reopen removal proceedings, filed with the BIA. The plain meaning of the phrase “arising from the decision or action by the Attorney General to . . . execute removal orders” in 8 U.S.C. § 1252(g) supports the conclusion that Congress has stripped the district court of jurisdiction over the habeas petition in this case. Neither party has filed an objection to this conclusion in the R&R, which the Court hereby adopts.

         C. Section 1252(g) as Applied in This Case Violates ...


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