WILLIAN MATIAS RAUDA, Plаintiff-Appellant, v. DAVID JENNINGS, in his official capacity, Field Office Director of San Francisco Field Office, U.S. Immigration and Customs Enforcement; TAE D. JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement; MERRICK B. GARLAND, Attorney General; ALEJANDRO N. MAYORKAS, Acting Secretary of Department of Homeland Security, Defendants-Appellees.
No. 21-16062
United States Court of Appeals for the Ninth Circuit
August 13, 2021
D.C. No. 3:21-cv-03897-CRB
Submitted to Motions Panel July 13, 2021*
Before: Johnnie B. Rawlinson, Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
SUMMARY**
Immigration / Habeas Corpus
Affirming the district court‘s denial of Willian Matias Rauda‘s request for a temporary restraining ordеr (TRO) to prevent the government from removing him, the panel: (1) concluded that the district court correctly determined that it lacked jurisdiction under
In 2018, Matias, a native of El Salvador, was detained by immigration authorities. An immigration judge (IJ) denied bond, and an IJ later denied him relief under the Convention Against Torture and ordered his removal. The Board of Immigration Appeals dismissed his appeal, and this court denied his petition for review. In April 2021, Matias moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Matias filed a habeas petition with the district
The panel observed that the motion before it was Matias‘s motion for stay pending appeal, but given the decisive jurisdictiоnal issue, the panel reached the merits. The panel concluded that the district court correctly determined that jurisdiction was barred by
The panel explained that the conclusion that it lacked jurisdiction was reinforced by the consideration that, as explained in Shaboyan v. Holder, 652 F.3d 988 (9th Cir. 2011), this court may only review final orders, and the BIA‘s interim order denying a stay of removal pending resolution of a motion to reopen is not such an order. Noting that Shaboyan involved a petition for review, while this case involved a habeas petition, the panel explained that Shaboyan foreclosed review (direct or indirect) of the BIA‘s denial of his stay request.
Matias attempted to distinguish his case from Thuraissigiam on the ground that he made it farther than 25 yards into the United States before being apprehended. The panel explained that the Supreme Court rejected essentially the same argument in Thuraissigiam, where the petitioner argued he was entitled to more process than an applicant for admission because he succeeded in making it 25 yards into the country. The Supreme Court rejected that argument, determining that it would undermine the sovereign prerogative of governing admission to thе country and create a perverse incentive to enter at an unlawful location. Thus, the panel concluded that Matias was entitled to the process afforded by statute, but no more. The panel also observed that the process provided here was ample.
Addressing Matias‘s request that the court grant him a stay because he would be severely harmed or killed if removed to El Salvador, the panel explained that, if a court could inject itself into the agency‘s process and force (another) stay because a rеmovable alien newly represented that he would be severely injured or die when removed, all similarly situated petitioners would be incentivized to demand a stay. The panel explained that, if that were case, it seems foreseeable that this would become the new norm
Finally, the panel noted that Matias is not required to be in the United States for the adjudication of his motion to take place. Rather, he would continue to receive the statutorily required process even when he is removed, just as Congress designed.
COUNSEL
Manohar Raju, Public Defender; Matt Gonzalez, Chief Attorney; Francisco Ugarte and Genna Ellis Beier, Attorneys; Public Defender‘s Office, San Francisco, California; Sean Lai McMahon and Jehan Laner Romero, Pangea Legal Services, San Francisco, California; for Plaintiff-Appellant.
Brian M. Boynton, Acting Assistant Attorney General; William C. Peachey, Director; Elianis Perez, Assistant Director; Mary L. Larakers, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Depаrtment of Justice, Washington, D.C.; for Defendants-Appellees.
VANDYKE, Circuit Judge:
Petitioner Willian Matias Rauda appeals the district court‘s order denying his request for a temporary restraining order to prevent the government from removing him from the United States. In the district court, Matias argued that deportation prior to a ruling on his motion to reopen would violate his due process rights, the Convention Against Torture, and the Immigration & Nationality Act. In denying his motion, the district court concluded that it lacked jurisdiction to reach Matias‘s claim. We agree with the district court and affirm.
BACKGROUND AND PROCEDURAL HISTORY
Matias is a native of El Salvador and unlawfully entered the United States in February 2014. El Salvadoran authorities considered him a member of MS-13, a violent gang.
Leaving his partner and child, he moved to Maryland from the San Francisco Bay Area in October 2015. While residing in Maryland, Matias pleaded guilty to assault in the first degree after being involved in a gang shooting where two victims were shot. Authorities determined that the shooting was in retaliation for MS-13 gang activity, and identified Matias as an “affiliate” of MS-13. The government claims Matias admitted his status as an MS-13 gang member while he was imprisoned at Prince George‘s County Detention Center in Maryland. He was sentenced to twenty years in prison but was released from custody on a deferred sentence, after which he moved back to the Bay Area.
On April 22, 2021, Matias moved the BIA to reopen his case so that it could consider “new developments” regarding his request for CAT relief. The new developments that Matias contends undermine the BIA‘s previous decision are: (1) claimed political changes in El Salvador, and (2) an alleged text from an MS-13 gang member labeling him a “snitch” and saying he will be killed if he returns to El Salvador.1 On May 14, 2021, after the Ninth Circuit‘s stay оf removal terminated, Matias moved the BIA for an emergency stay while his motion to reopen was being considered. One week later, on May 21, 2021, the BIA denied his request for a stay.
Because he could not file a direct petition for review with this court (which, as discussed below, is foreclosed by precedent), Matias filed a habeas petition with the district court on May 24, 2021, asking the court to enjoin the
ICE initially scheduled Matias‘s rеmoval for the first week of June 2021, but that deadline has repeatedly slipped. On June 14, 2021, the district court denied Matias‘s subsequently-filed motion for a temporary restraining order (TRO), determining that
Matias appeals the district court‘s order denying his TRO and argues that this court has jurisdiction to consider his claim. Meanwhile, Matias‘s motion to reopen remains pending befоre the BIA. Notably, the motion brought before this panel was Matias‘s motion for stay pending appeal. But given the decisive jurisdictional issue at play, we reach the overall merits of Matias‘s claim.
STANDARD OF REVIEW
“We have jurisdiction to determine whether jurisdiction exists.” Shaboyan v. Holder, 652 F.3d 988, 989 (9th Cir. 2011) (per curiam). In the immigration context, “[w]e may review only final orders of removal.” Id.
I. We Lack Jurisdiction to Review Matias‘s Claims.
A. Section 1252(g) Deprives Us of Jurisdiction.
Matias argues that the district court erred in determining that
The execution of his removal order is precisely what Matias challenges here. Matias seeks to enjoin the government from removing him—or in other words, enjoin “action by the Attorney General to . . . execute removal orders against [Matias].”
Beyond its plain text, legislative action (or inaction) corroborates that
Matias asserts that applying the plain text of
Matias also attempts to avoid
Similarly, the Sixth Circuit has also determined that
We agree with our sister circuits. No matter how Matias frames it, his challenge is to the Attorney General‘s exercise of his discretion to execute Matias‘s removal order, which we have no jurisdiction to review. See Camarena v. Dir., ICE, 988 F.3d 1268, 1274 (11th Cir. 2021) (“[W]e do not have jurisdiction to consider ‘any’ cause or claim brought by an alien arising from the government‘s decision to execute a removal order. If we held otherwise, any petitioner could frame his or her claim as an attack on the government‘s authority to execute a removal order rather than its execution of a removal order.“). The district court correctly concluded that
B. We May Only Review Final Orders.
That we lack jurisdiction over Matias‘s claims is reinforced by another consideration. As explained in Shaboyan, 652 F.3d at 989, we may only review final orders. While Matias is asking us to review the denial of a TRO that he filed alongside a habeas petition in district court, what he fundamentally seeks is a stay of removal pending the BIA‘s resolution of his motion to reopen. Because Matias asks us to review an interim order and not a “‘final order of removal’ that may . . . give rise to a petitiоn for review,” we lack jurisdiction to consider his claim. Id. at 989–90.
When one door is locked, it‘s natural to try another. Presumably recognizing that hе was foreclosed by Shaboyan from seeking our direct review of the BIA‘s denial of a stay, Matias is attempting to obtain the same relief sought by Shaboyan, just by a different route: through the district court via a habeas petition. But Shaboyan‘s rationale applies equally to this attempt. Congress has intentionally (and unequivocally) stripped us of jurisdiction to review non-final orders. The IJ ordered Matias removed, like the petitioner in Shaboyan. While he cannot contend that he is entitled to direct review of that removal order—because such review is squarely foreclosed by
II. The Suspension Clause Does Not Preserve Judicial Review.
Recognizing the problem that
Applying Thuraissigiam, the district court determined that “the scope of the writ protected by the Suspension Clause . . . does not extend to the type of claim at issue here.” After noting that the “historic role of habeas is to secure release from custody,” Thuraissigiam, 140 S. Ct. at 1970, the district court pointed out that “Matias . . . is not challenging his deportation order or any ruling that he is ineligible for relief from removal. Instead, he is challenging thе government‘s imminent execution of his removal order.” As a result, the district court concluded “Matias‘s claims do not ‘call for traditional habeas relief’ even under an evolving understanding of the writ, [and] applying
In Thuraissigiam, the Supreme Court determined that habeas relief applies to petitioners seeking release from executive detention but not to petitioners seeking to remain in the United States. Id. at 1969–71. There, the petitioner argued that Congress unconstitutionally “placed restrictions on the ability of asylum seekers to obtain review under the federal habeas statute.” Id. at 1963. The Court determined that, as an alien who was not lawfully admitted, the petitioner had “no entitlement to procedural rights other than those afforded by statute.” Id. at 1964; see also id. at 1983 (“[A]n alien in respondent‘s position has only those rights regarding admission that Congress has provided by statute.“). “[A]s to ‘foreigners who have never been naturalized, nor acquired any domicil[e] or residence within the United States, nor even been admitted into the country pursuant to law,’ ‘the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.‘” Id. at 1982 (citation omitted). The Court also pointed out that “[r]espondent and amici . . . have not unearthed evidence that habeas was . . . used [before and around the time of the adoption of the Constitution] to obtain anything like what is sought here, namely, authorization for an alien to remain in a country other than his own or to obtain administrative or judicial review leading to that result.” Id. at 1971.
Like the petitioner in Thuraissigiam, Matias is not seeking “a remedy for unlawful executive detention,” and his claims are thus outside of the scope of habeas relief. Id. at 1970–71, 1975 (citation omitted). Rather than seeking the traditional use of habeas, Matias specifically wants to avoid being released (into El Salvador). As the Court noted, the common law reserves habeas relief for remedies from unlawful custody. Id. at 1969. But Matias seeks tо remain in the United States, even if that requires staying in custody. Matias is not using habeas in anything like the traditional sense, and therefore, as the Supreme Court held in Thuraissigiam, the relevant statute limiting habeas review does not violate the Suspension Clause. Id. at 1983; see also Hamama, 912 F.3d at 880 (“There is no Suspension Clause violation because the Suspension Clause can only be triggered when a petitioner is requesting relief from custody.” (emphasis added)).
Matias attempts to distinguish his case from Thuraissigiam because he made it farther than “25 yards” into the United States before being apprehended. But this argument is unpersuasive. The petitioner in Thuraissigiam made essentially the same argument, just tailored to the facts of his case. He claimed that he was entitled to more process because he “was not taken into custody the instant he
The Supreme Court‘s answer in Thuraissigiam applies equally here. If we were to grant Matias more process because he had successfully eluded immigration authorities for longer than the petitioner in Thuraissigiam, we would likewise be creating the same “perverse incentive” the Court warned against. See id. at 1983. Matias differs from Thuraissigiam only in that he managed to “reside” unlawfully in the U.S. for a longer period, which is irrelevant because both petitioners were present in the U.S. illegally. Cf. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (“[I]n all cases, deportation is necеssary in order to bring an end to an ongoing violation of United States law.“). As the government points out, it would be strange to afford Matias, who committed crimes and evaded authorities, more process than an alien who lawfully presented himself at the border. Matias, like Thuraissigiam, is entitled to the process afforded by statute, but no more. See Thuraissigiam, 140 S. Ct. at 1983; Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
And to be clear, the process provided by our immigration laws is ample, which Matias knows by experience. He sought CAT relief before an IJ. He appealed the decision to
III. Matias‘s Assertions of Alleged Harm Cannot Warrant a Stay.
Matiаs asks us to grant him a stay because he contends that he will be severely harmed or killed if removed to El Salvador. He urges us to balance the equity of entering a stay against the potential future harm upon removal. With respect to the latter, Matias essentially asks us to take his word for it and assume “the allegations contained in his declaration are true.”
If a court could inject itself into the agency‘s process and force (another) stay because a removable alien—whose petition for review had already been denied by оur court—newly represented to us that he would be severely injured or die when removed, all similarly situated petitioners would be incentivized to demand a stay and make similar claims to keep themselves in the country while the BIA considers their motions to reopen. And without records from the agency to review, we would be presented with just the petitioners’ untested claims of possible future harm. That this would become the new norm, and that courts would essentially be granting automatic stays of removal pending the BIA‘s consideration of motions to reopen, seеms foreseeable enough.
Matias points to INS v. St. Cyr, 533 U.S. 289 (2001), as supporting his argument that judicial intervention is constitutionally necessary. But St. Cyr did not expand the scope of judicial review in immigration proceedings. Cf. Thuraissigiam, 140 S. Ct. at 1966 (noting that “a major objective of IIRIRA” was to prevent “undue interference by the courts“). While the Court in St. Cyr acknowledged that ”some judicial intervention in deportation cases” is required, 533 U.S. at 300 (emphasis added, citation and internal quotation marks omitted), that is a far cry from saying that judicial intervention is required at every step of the process. Ultimately, Matias has had (and will have) access to judiсial review where Congress provided for it, such as this court‘s previous consideration of his petition for review, and its likely future consideration of the BIA‘s final decision on his motion to reopen.3
The district court correctly determined that it lacked jurisdiction to hear Matias‘s claims under
AFFIRMED.
All pending motions are denied as moot.