United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION AND AND
DENYING MOTION TO DISMISS
BARBARA JACOBS ROTHSTEIN U.S. DISTRICT COURT JUDGE
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.
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:
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.
Standard of Review
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).
The Plain Meaning of 8 U.S.C. §1252 Deprives This Court
of Jurisdiction Over Habeas Claims “Arising From”
the Execution of Removal Orders
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.
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 (“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.
Section 1252(g) as Applied in This Case Violates ...