Opinion
CV 23-8785-FMO (E)
01-24-2024
CARLOS ALEXANDRE VIANA GROSSI, Petitioner, v. CURRENT OR ACTING FIELD OFFICE DIRECTOR, LOS ANGELES FIELD OFFICE, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., Respondents.
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
ORDER DISMISSING PETITION WITHOUT PREJUDICE
FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE
PROCEEDINGS
On October 16, 2023, Petitioner filed a “Petition for Writ of Habeas Corpus by a Person in Federal Custody; Exhibits (28 U.S.C. § 2241)” (“the Petition”). On November 15, 2023, Respondents filed the “Government's Motion to Dismiss Petition, etc.” (“Motion to Dismiss”). On January 18, 2024, Petitioner filed “Opposition to Government's Motion to Dismiss.”
BACKGROUND
In 2019, federal authorities arrested Petitioner, a Brazilian citizen, at the Los Angeles International Airport as Petitioner was traveling from London to Australia (Petition, p. 2; Declaration of Paul Villagran, filed November 15, 2023) . Following a jury trial in federal court, Petitioner was convicted of a felony drug crime and sentenced to a prison term. See United States v. Grossi, CR 19-302-FMO.
Petitioner states he then was “traveling outside of Brazil for the first time in his life” (Petition, p. 2).
Meanwhile, Petitioner sought asylum and withholding of removal (Petition, pp. 6-10; Declaration of Paul Villagran). In August of 2023, after Petitioner had been transferred from the custody of the Bureau of Prisons into the custody of the U.S. Immigrations and Customs Enforcement (“ICE”), an asylum officer conducted an interview of Petitioner (Petition, pp. 8-10; Declaration of Paul Villagran). The asylum officer found no “credible fear” of prosecution or torture, thereby denying asylum and ordering Petitioner's exclusion and removal (Petition, p. 10; Declaration of Paul Villagran). In a “final order,” an immigration judge affirmed (Petition, p. 10; Exhibit G to Declaration of Paul Villagran; “Opposition, etc.,” filed January 18, 2024). In November of 2023, Petitioner was removed to Brazil, where he currently resides (“Opposition, etc.,” filed January 18, 2024) .
Prior to this removal, while Petitioner was still in ICE detention, Petitioner filed the Petition. Construed liberally, the Petition may seek to challenge the validity of: (1) Petitioner's ICE detention; (2) Petitioner's conviction; and/or (3) Petitioner's exclusion and removal.
DISCUSSION
For the reasons discussed herein, the Petition is dismissed without prejudice. Petitioner's challenges to his former ICE detention are moot, and this Court lacks section 2241 jurisdiction over Petitioner's challenges to his conviction, his exclusion and his removal.
Petitioner's multiple challenges to Petitioner's former ICE detention are moot. A federal court's jurisdiction is limited to cases or controversies. U.S. Const. art. III, § 2; see also Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1983). “[A] federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Calif. v. United States, 506 U.S. 9, 12 (1992) (citations and quotations omitted). The “case and controversy” requirement demands that the parties continue to have a personal stake in the outcome of a federal lawsuit through all stages of the judicial proceeding. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “This means that, throughout the litigation, the [party seeking relief] must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. (citation and quotations omitted). Petitioner no longer is in ICE detention. Thus, the Petition's multiple challenges to the legality of that detention, (including the Petition's request for an “intensive supervision” alternative to detention), no longer present a live controversy. See United States v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984) (“A claim is moot if it has lost its character as a present, live controversy.”); see also Machuca-Tellez v. Holder, 388 Fed. App'x 609, 610 (9th Cir. 2010) (section 2241 petition challenging immigration detention mooted by petitioner's removal from the United States); Carpio v. Dep't of Homeland Sec., 2020 WL 7418966, at *1 (C.D. Cal. Mar. 13, 2020) (same).
Petitioner's multiple challenges to the validity of his conviction cannot properly be brought under 28 U.S.C. section 2241. A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. A prisoner generally may not substitute a habeas petition under 28 U.S.C. section 2241 for a section 2255 motion. See 28 U.S.C. § 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000).
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; Hernandez v. Campbell, 204 F.3d at 864.
In the present case, Petitioner has failed to show that a section 2255 motion would be “inadequate or ineffective” within the meaning of section 2255's “saving clause.” See Jones v. Hendrix, 599 U.S. 465, 477-78 (2023) (narrowly construing section 2255's “saving clause”; even a petitioner's alleged innocence does not constitute an exception to the exclusivity of section 2255). Moreover, the United States Court of Appeals for the Ninth Circuit recently determined that Petitioner failed to show that his section 2255 remedy was “inadequate or ineffective.” See Grossi v. United States, Ninth Circuit Case No. 23-55598, Dkt. 30, filed December 15, 2023. Therefore, as Petitioner repeatedly has been advised, he may not properly challege his conviction under 28 U.S.C. section 2241. See id.; Grossi v. United States, CV 23-3405-FMO, Dkt. 7, filed June 20, 2023.
Petitioner's multiple challenges to the validity of Petitioner's exclusion and removal also cannot properly be brought in district court under 28 U.S.C. section 2241. The REAL ID Act of 2005 (“the Act”), signed into law May 11, 2005, generally provides that “a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal. . . .” 8 U.S.C. § 1252(a)(5) (as amended by section 106(a) of the Act). The Act “eliminated district court habeas jurisdiction over orders of removal and vested jurisdiction to review such orders exclusively in the courts of appeals.” Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) (citation omitted); accord Paz v. California, 2019 WL 1581418, at *4 (C.D. Cal. Feb. 11, 2019). Thus, the Act “makes the circuit courts the ‘sole' judicial body able to review challenges to final orders of deportation, exclusion, or removal.” Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005); 8 U.S.C. § 1252(a). Therefore, to the extent the present Petition challenges a final order of exclusion and/or removal, this Court lacks jurisdiction over the Petition. Dismissal without prejudice is appropriate. See Iasu v. Smith, 511 F.3d 881, 888-89 (9th Cir. 2007) (transfer to the Ninth Circuit of a habeas petition filed after May 11, 2005 is not an option).
In arguing that the Court should not dismiss the Petition, Petitioner cites Zegarra-Gomez v. I.N.S., 314 F.3d 1124 (9th Cir. 2003). However, as recognized in Rios-Bamac v. Lynch, 2019 WL 13214051, at *5 n.4 (D. Colo. Nov. 20, 2019), the Act has superseded the holding of Zegarra-Gomez with respect to the jurisdictional issue discussed herein.
ORDER
For all of the foregoing reasons, IT IS ORDERED that the Petition is dismissed without prejudice.
The Court need not and does not consider any of the other bases for dismissal urged in the Motion to Dismiss.
Because of the fundamental, jurisdictional nature of the defects in the Petition, amendment of the Petition would be futile.
LET JUDGMENT BE ENTERED ACCORDINGLY.