JACQUELINE SCOTT CORLEY United States Magistrate Judge

ORDER DISMISSING HABEAS PETITION FOR LACK OF JURISDICTION

Re: Dkt. No. 12

Presently before the Court is Petitioner Carlos Alberto Ramirez-Albarracin's Petition for Issuance of Writ of Habeas Corpus. (Dkt. No. 1.) Because the Court had questions regarding its jurisdiction to hear the petition in light of the jurisdiction stripping provisions of the REAL ID Act of 2005 ("REAL ID"), it issued an Order to Show Cause. (Dkt. No. 11.) Both Petitioner and Defendants Eric Holder, Attorney General of the United States, and Robin Barett, Acting District Director, San Francisco Office, United States Department of Homeland Security (referred to hereafter as "the government"), filed a response to the Court's Order to Show Cause. (Dkt. Nos. 12 & 14.) Having considered all of the papers and the entire record in this case, the Court concludes that the claims Petitioner seeks to raise are inextricably linked to his underlying order of removal and the Court therefore DISMISSES the habeas petition for lack of jurisdiction.

BACKGROUND

Petitioner is a native and citizen of Peru who has resided in the United States for 40 years. (Dkt. No. 1 ¶ 1.) Petitioner was deported in 1978, but he then re-entered the United States a short time later. (Dkt. No. 1 ¶ 2; Dkt. No. 12-1 at 7.) Petitioner married a United States citizen in 1987 and she filed a marriage-based visa on his behalf which was approved in 1990. (Dkt. No. 1 ¶¶ 9-10.) A year later, Petitioner filed an I-212, Permission to Re-Apply for Admission after Deportation ("I-212 waiver" or "I-212 application"), but that was denied. (Id. ¶¶ 11-12.) Petitioner's appeal of the denial to the Administrative Appeals Office was dismissed because "unfavorable factors outweigh the favorable ones." (Dkt. No. 14-1 at 5.) In 1996, Petitioner filed an application for adjustment of status ("I-485") which was denied June 3, 1999. (Dkt. Nos. 14-2 & 14-3.) Two months later, Petitioner filed a second application for an I-212 waiver. (Dkt. No. 1-1 at 7.) This 1999 I-212 waiver has never been adjudicated. (Id. ¶ 15.) According to the government, the United States Citizenship and Immigration Service does not have jurisdiction to adjudicate an I-212 that seeks retroactive approval unless the I-212 application is filed in conjunction with an I-485 application for adjustment of status. See 8 C.F.R. § 212.2(i)(2).

It does not appear that Petitioner had any further interactions with immigration authorities following his 1999 1-212 waiver application until March 12, 2014. On that date Immigration and Customs Enforcement arrested him following an "approved Fugitive Operations Field Operations Worksheet." (Dkt. No. 14-4 at 2.) That same day, Petitioner's 1978 removal order was reinstated. (Dkt. No. 12-1 at 7.) Petitioner is not currently in immigration custody—less than two weeks after his arrest, he was released on an order of supervision and his removal was temporarily stayed. (Dkt. No. 1-1 at 14-17.)

On May 8, 2014, Petitioner filed the underlying habeas petition. He seeks a court order (1) directing the government to permit Petitioner to submit an I-485 adjustment of status application, (2) allowing Petitioner to update his pending I-212 application, and (3) directing the government to make a decision on the updated I-212 application. Petitioner contends that under the current caselaw, he is ineligible for an I-212 waiver because he did not remain outside the United States for at least ten years following his deportation. See 8 U.S.C. § 1182(a)(9)(C)(ii); Morales-Izquirerdo v. Department of Homeland Security, 600 F.3d 1076, 1087 (9th Cir. 2010) (stating that under the current law of the Ninth Circuit "8 U.S.C. § 1182(a)(9)(C) bars aliens who have reentered the United States without inspection after removal from receiving discretionary waivers of inadmissibility before the ten-year bar has expired"). He insists that he must be given the opportunity to demonstrate that he remained in the United States at the time he filed his I-212 in reliance on the caselaw at the time. See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). Because the Court had concerns regarding its jurisdiction to hear such a challenge, it issued an Order to Show Cause. (Dkt. No. 11.) Petitioner and the government have both filed responses to the Court's Order. (Dkt Nos. 12-14.)

DISCUSSION

Federal district courts may grant a writ of habeas corpus if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Prior to enactment of REAL ID, petitions for writs of habeas corpus provided a legal avenue for individuals to seek relief from deportation. However, in 2005 REAL ID amended the Immigration and Nationality Act ("INA") to clarify the scope of the jurisdiction stripping provisions of the INA. See Singh v. Gonzales, 499 F.3d 969, 975-78 (9th Cir. 2007) (describing history of jurisdiction to review removal orders and purpose of REAL ID Act). The INA contains a provision entitled "Exclusive means of review," which reads, in relevant part:

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, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section.

In addition, Section 1252(b)(9) contains a "zipper clause" that consolidates all "questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien" into a petition for review. Through the zipper clause "Congress made clear that review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding." H.R.Rep. No. 109-72, at 173, 2005 U.S.C.C.A.N. 240, 298. "These modifications effectively limit all aliens to one bite of the apple with regard to challenging an order of removal." Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007) (internal quotation marks and citation omitted).

These provisions do not prohibit "the ability of a court to review claims that are independent of challenges to removal orders." Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (internal citation and quotation marks omitted); see also Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) ("Congress has clarified . . . that the REAL ID Act was not intended to "preclude habeas review over challenges to detention that are independent of challenges to removal orders.") (citing H.R. Rep. No. 109-72, at 175). However, 8 U.S.C. § 1252(a)(5) prohibits "claims that indirectly challenge a removal order." Martinez, 704 F.3d at 622. "When a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is inextricably linked to the order of removal, [a district court's review of the claim ] is prohibited by section 1252(a)(5)." Id. at 623 (internal citation and quotation marks omitted). The "distinction between an independent claim and indirect challenge will turn on the substance of the relief that a plaintiff is seeking." Id. (internal citations and quotation marks omitted). The determination of whether a case raises independent claims or indirectly challenges a final removal order requires "a case-by-case inquiry turning on a practical analysis." Singh, 638 F.3d at 1211.

Petitioner filed the underlying petition for habeas corpus following reinstatement of his 1978 removal order. He nonetheless contends that he does not seek review of the actual reinstated removal order; instead, he seeks to raise legal issues concerning his unadjudicated 1999 I-212 application. Thus, the question before the Court is whether Petitioner's challenge here is inextricably linked to his 1978 order of deportation; that is, whether he seeks to indirectly challenge his removal order. Martinez, 704 F.3d at 622. The Court concludes that he does.

A. Petitioner's Claim is Inextricably Linked to the Removal Order

Petitioner is indirectly challenging the order of his removal. He is ultimately seeking approval of his I-212 waiver application and an adjustment of status. Where, as here, the alien is subject to a reinstated order of removal, an "adjustment-of-status challenge is inextricably linked to the reinstatement of [the alien's] removal order." Morales-Izquierdo, 600 F.3d at 1082. "Until the Reinstatement Order is vacated, [the alien] is not eligible for any relief, including adjustment of status." Id. (citing 8 U.S.C. § 1231(a)(5). If the alien obtains "a nun pro tunc Form I-212 waiver of inadmissibility and adjustment of status to that of [a lawful permanent resident]—the Reinstatement Order would be rendered invalid." Id. at 1082-83. Therefore, Petitioner's challenge to the I-212 application "is properly construed as a challenge to an 'order of removal'" and thus this Court lacks jurisdiction. Id. at 1083.

That Petitioner merely seeks an order directing the government to adjudicate his I-212 application rather than an order directing the government to approve the application is of no moment. In Delgado v. Quarantillo, 643 F.3d 52 (2nd Cir. 2011) (per curiam), the plaintiff filed a mandamus petition in district court seeking to force the government to adjudicate his pending I-212 application. Id. at 55. The court held that under section 1252(a)(5) the district court lacked jurisdiction to consider a mandamus petition because it indirectly sought to challenge the reinstated order of removal. The court rejected the petitioner's argument that she was not challenging her removal because the government's granting of her I-212 application "would not 'per se prevent her removal.'" Id. at 55. The court reasoned: "[o]btaining such a waiver is a necessary prerequisite to her ultimate goal of adjustment of status," which would invalidate the order of removal. Id.; see also Martinez, 704 F.3d at 622 (citing Delgado with approval).

In Martinez, the Ninth Circuit adopted Delgado's holding regarding section 1252(a)(5)'s prohibition on APA claims which indirectly challenge a removal order. See Martinez, 704 F.3d at 622. Thus, just as in Morales-Izquierdo, Petitioner's "challenge to the adjudication of his [I-212] application is appropriately characterized as a challenge to an order of removal. [Petitioner] has been ordered removed from the United States, and [his] I-212 challenge is inextricably linked to the reinstatement of his [1978] removal order." Morales-Izquierdo, 600 F.3d at 1082. Section 1252(a)(5) thus deprives this Court of jurisdiction of the habeas petition.

Petitioner's reliance on Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) and Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007) is unavailing. These cases hold that under certain limited circumstances habeas jurisdiction remains in district court. For example, a district court has jurisdiction to decide an individual's challenge to his "immigration detention in a habeas petition without unduly implicating the order of removal" where the petitioner was being detained pending the resolution of a petition for review of a final order of removal. Singh, 638 F.3d at 1211. Likewise, an ineffective assistance of counsel claim based on an attorney's failure to file a timely petition for review of a final removal order is properly brought as a habeas petition as the "only remedy would be the restarting of the thirty-day period of the filing of a petition for review." Singh, 499 F.3d at 979. In those cases, unlike here, the petitioners' claims could be considered and the relief sought could be granted without implicating the order of removal.

The rub here is that the rationale underlying many of the jurisdictional decisions—that allowing "a habeas corpus petition would be contrary to a central purpose of the REAL ID Act [which] .... sought to limit all aliens to one bite of the apple with regard to challenging an order of removal, in an effort to streamline what the Congress saw as uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)"—does not apply as Petitioner failed to timely file a petition for review of the reinstated removal order. Id. at 1083 (internal citation and quotation mark omitted). And the 30-day filing deadline for filing a petition for review is mandatory and jurisdictional. Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012). Nonetheless, Petitioner has not argued—and the Court is unaware of any authority that would suggest—that the Court has jurisdiction because Petitioner failed to timely exercise his right to obtain review before the proper court. While unfortunate, it does not provide a basis to ignore the jurisdiction stripping provisions of sections 1252(a)(5) and (a)(9). Further, as the habeas petition would not be timely even if construed as a petition for review, transfer of the habeas petition is inappropriate. Puri v. Gonzales, 464 F.3d 1038, 1042-43 (9th Cir. 2006) (stating that "[a]n immigration case is 'transferable' when the following three conditions are met: (1) the transferee court would have been able to exercise its jurisdiction on the date the action was misfiled; (2) the transferor court lacks jurisdiction; and (3) the transfer serves the interest of justice.").

B. Duran Gonzales Does Not Provide a Basis for Jurisdiction

Petitioner attempts to circumvent the jurisdictional bar by arguing that the Ninth Circuit's decision in Duran Gonzales v. DHS (Duran Gonzales III), 712 F.3d 1271 (9th Cir. 2013) supersedes Morales-Izquierdo. The Court disagrees.

In Duran Gonzales III, the Ninth Circuit issued its third decision regarding I-212 waivers sought by a putative class of undocumented immigrants. The Duran Gonzales plaintiffs had all applied from within with United States for adjustment of status and an I-212 waiver of their inadmissibility due to their previous removal and unlawful reentry. Id. at 1272. They sought to challenge the statutory requirement that ten years elapse between an individual's last departure from the United States and his or her waiver application in light of Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). As explained, supra, Perez-Gonzalez held that an undocumented immigrant could apply for an I-212 waiver from within the United States even if he or she had not complied with the statutory ten-year bar. Duran Gonzales has a complicated procedural history in large part due to an intervening contrary decision from the Board of Immigration Appeals ("BIA") (see In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006)), and an en banc decision from the Ninth Circuit regarding the proper test for retroactivity (see Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)).

In short, the Ninth Circuit originally held that it had to defer to the BIA's decision in In re Torres-Garcia, which was contrary to Perez-Gonzalez and rendered the Duran Gonzales plaintiffs ineligible to adjust their status and receive I-212 waivers. Duran Gonzales v. DHS (Duran Gonzales I ), 508 F.3d 1227, 1242 (9th Cir. 2007). In Duran Gonzales v. DHS (Duran Gonzales II), 659 F.3d 930, 939-41 (9th Cir. 2011), the Ninth Circuit held that Duran Gonzalez I would have full retroactive effect notwithstanding the plaintiffs' reliance on preexisting Ninth Circuit precedent. However, the mandate in Duran Gonzales II was stayed pending resolution of en banc proceedings in another Ninth Circuit case, Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), addressing the test for retroactivity. Finally, in Duran Gonzales III, the Ninth Circuit applied a different test for retroactivity consistent with the Garfias-Rodriguez en banc decision .

Petitioner contends that Duran Gonzales III supersedes Morales-Izquierdo and means that habeas jurisdiction over reinstated removal orders remains in the district court. The Court is unpersuaded. Duran Gonzales did not address reinstated removal orders; there is no discussion of section § 1252(a)(5) and whether it deprived the district court of jurisdiction because the plaintiffs, unlike Petitioner, were not subject to reinstated removal orders. See, e.g., Duran Gonzales I, 508 F.3d at 1233-34 (discussing the effect the district court's injunction had on the government's ability to initiate reinstatement proceedings). Thus, the claims were not indirectly attacking an order of removal as is the petition here. Moreover, the question before the Ninth Circuit was whether its decision in Duran Gonzales I should be applied retroactively in light of a new en banc decision regarding retroactivity. Id. at 1276-77. In sum, nothing in Duran Gonzales III controls whether this Court has habeas jurisdiction here.

Accordingly, the Court concludes that Petitioner's challenge to the government's failure to adjudicate his pending I-212 application is "inextricably linked to the reinstatement of his [1978] removal order" and is an impermissible challenge to that removal order. Morales-Izquierdo, 600 F.3d at 1082. Therefore, the Court lacks jurisdiction over Petitioner's habeas petition.

CONCLUSION

For the reasons stated above, the Court lacks jurisdiction to decide Petitioner's challenges to his unadjudicated 1999 I-212. The petition is DISMISSED.

IT IS SO ORDERED. Dated: September 17, 2014

/s/_______

JACQUELINE SCOTT CORLEY

United States Magistrate Judge