Opinion
No. 21-16062
08-13-2021
Willian Matias RAUDA, Plaintiff-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.
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 Department of Justice, Washington, D.C.; for Defendants-Appellees.
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 Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: Johnnie B. Rawlinson, Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges.
OPINION
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.
U.S. Immigration and Customs Enforcement (ICE) detained Matias in November 2018, seeking to remove him. While in ICE custody, Matias requested to be housed with a gang aligned with MS-13. An immigration judge (IJ) denied him bond in January 2019, finding he was a danger to the community. In June 2019, an IJ denied Matias relief under the Convention Against Torture (CAT) and ordered him removed to El Salvador. Matias unsuccessfully appealed to the Board of Immigration Appeals (BIA), which dismissed his appeal in November 2019. On January 28, 2021, this court likewise denied his petition for review, determining that the evidence supported the IJ's findings. See Matias Rauda v. Wilkinson , 844 F. App'x 945 (9th Cir. 2021).
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. On May 14, 2021, after the Ninth Circuit's stay of 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.
The text is alleged to have come from a sender within the United States, but Matias has never authenticated the text, nor did he provide copies to the district court.
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 government from removing him until the BIA ruled on his motion to reopen and the court ruled on his habeas petition. The district court denied his motion.
ICE initially scheduled Matias's removal 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 8 U.S.C. § 1252(g) ’s jurisdictional limits barred his claims. But the district court granted a five-day administrative stay so that this court could hear Matias's appeal. Subsequently, the government voluntarily agreed to stay removal up to and including August 13, 2021.
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 before 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.
DISCUSSION
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 § 1252(g) bars judicial review of his claims challenging the government's execution of his removal order. The statute's plain language, however, bars review of his claims. Per § 1252(g), "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien." § 1252(g) (emphasis added).
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]." § 1252(g). Congress has explicitly precluded our review of this claim.
Beyond its plain text, legislative action (or inaction) corroborates that § 1252(g) was meant to preclude judicial review over claims like Matias's. While Congress could have chosen to provide Matias and other petitioners like him with access to judicial review of non-final immigration orders, it did not do so. Cf. DHS v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1983, 207 L.Ed.2d 427 (2020) ; Nken v. Holder , 556 U.S. 418, 424, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (explaining Congress's amendments to immigration procedures). Limiting federal jurisdiction in this way is understandable since Congress wanted to streamline immigration proceedings by limiting judicial review to final orders, litigated in the context of petitions for review. See Nken , 556 U.S. at 424, 129 S.Ct. 1749 ("Congress ... ‘repealed the old judicial-review scheme ... and instituted a new and (significantly more restrictive) one in 8 U.S.C. § 1252.’ The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review." (citation omitted)).
Matias asserts that applying the plain text of § 1252(g) and refusing to enter a stay of removal pending the resolution of his motion to reopen "would deprive a noncitizen [of] his statutory right to file a motion to reopen." But that's not true. Matias's motion to reopen has already been filed, and is currently pending before the BIA. Once the BIA decides that motion, Matias will be able to file a petition for our court to review that final agency action—including review of the BIA's denial of his request for a stay of removal pending its decision. See Shaboyan , 652 F.3d at 991. Matias has taken full advantage of his statutory rights and will continue to have access to the process guaranteed to him under the statute even if he is removed. See Nken , 556 U.S. at 424, 129 S.Ct. 1749.
Matias also attempts to avoid § 1252(g) ’s jurisdictional bar by arguing that his challenge pertains not to the Attorney General's discretionary authority, but rather to the Attorney General's allegedly unlawful decision to "remov[e] him now ." But § 1252(g) ’s jurisdictional bar on "claim[s] ... arising from the decision or action by the Attorney General to ... execute removal orders" does not include any temporal caveats. As the Third Circuit has observed, "the discretion to decide whether to execute a removal order includes the discretion to decide when to do it .... [and] [b]oth are covered by the statute." Tazu v. Att'y Gen. United States , 975 F.3d 292, 297 (3d Cir. 2020).
Similarly, the Sixth Circuit has also determined that § 1252(g) strips courts of jurisdiction in this instance. In Hamama v. Adducci , petitioners sought a stay while they argued that changed country conditions required reconsideration of their removal orders. 912 F.3d 869, 873 (6th Cir. 2018). The court held that, "[u]nder a plain reading of the text of the statute, the Attorney General's enforcement of long-standing removal orders falls squarely under the Attorney General's decision to execute removal orders and is not subject to judicial review." Id. at 874.
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 § 1252(g) deprived it of jurisdiction to hear Matias's claims.
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 petition for review," we lack jurisdiction to consider his claim. Id. at 989–90.
In Shaboyan , just as in this case, the petitioner was ordered removed. Shaboyan filed a motion to reopen with the BIA and the BIA denied her request for a stay of removal pending its consideration of that motion. Instead of filing a habeas petition in the district court seeking review of the BIA's denial of a stay like Matias did here, Shaboyan filed a petition for review with this court asking us to directly review the BIA's stay decision. Id. at 989. Applying § 1252, we determined that "[w]e may review only final orders of removal," and that "the BIA's interim order denying a stay of removal pending resolution of [petitioner's] motion to reopen cannot qualify as a final order of removal." Id. at 989, 990 (internal quotation marks omitted)). In reaching that conclusion, we recognized that the petitioner was not without recourse because the BIA's order denying the stay could be reviewed as part of its final order denying her motion to reopen. Id. at 991. But where a petitioner "seeks review of the denial of a stay as an independent matter. ... we lack jurisdiction." Id.
When one door is locked, it's natural to try another. Presumably recognizing that he 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 § 1252(g) and Shaboyan —Matias also cannot argue that he is seeking review of any other final order properly the subject of a petition for review. Shaboyan forecloses our review (direct or indirect) of the only thing Matias is ultimately challenging—the BIA's denial of his stay request.
II. The Suspension Clause Does Not Preserve Judicial Review.
Recognizing the problem that § 1252 poses to his attempt to secure immediate review of the BIA's stay denial, Matias attacks that statute. He argues that the Constitution's Suspension Clause gives what § 1252 purports to take away, and thus Congress cannot have properly removed our jurisdiction over his habeas claim. But the Suspension Clause does not preserve judicial review in this case because only an extreme and unwarranted expansion of the habeas writ would encompass Matias's requested relief.
The Suspension Clause states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., Art. I, § 9, cl. 2.
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 the 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 § 1252(g) to bar his claims does not implicate the Suspension Clause." (quoting Thuraissigiam , 140 S. Ct. at 1970 ).
On appeal, Matias argues that the writ applies to "individuals who are challenging the process employed by the government that results in their detention and deportation." He asserts that the Suspension Clause would be violated if he is denied an avenue to challenge the BIA's stay denial. But these arguments misconstrue the scope of the habeas writ, as set forth by the Supreme Court at length in Thuraissigiam .
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.
The Court explained that the "core" of habeas relief is release from unlawful executive detention, not the right to remain in a country. Id. at 1975. Where "respondent did not ask to be released," but rather sought relief from removal, respondent was seeking relief that fell "outside the scope of the common-law habeas writ." Id. at 1969–70. The Supreme Court determined that respondent had received his due process and that the Suspension Clause was not triggered by § 1252(g) ’s limit on habeas relief. Id. at 1983.
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 to 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 attempted to enter the country. ... [but] succeeded in making it 25 yards" across the border into the U.S. Thuraissigiam , 140 S. Ct. at 1982. The Supreme Court rejected this argument, determining that it would "undermine the ‘sovereign prerogative’ of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location." Id. at 1983 (citation omitted). Therefore, the Court treated the respondent as "an applicant for admission," and determined he only had "those rights regarding admission that Congress has provided by statute." Id. at 1982–83.
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, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("[I]n all cases, deportation is necessary 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, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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 the BIA. He petitioned this court for review. During the more than two years it took for all of these layers of process to play out, his removal was stayed. After this court denied his petition, he was allowed to ask the BIA to reopen his case (which he did) and ask for a stay of removal while the BIA considered his motion (which he did). What Matias is not allowed is to have a court evaluate the BIA's denial of his stay request before the BIA has completed its review of his motion to reopen. All process has its limits. This hardly seems to be an unreasonable one.
III. Matias's Assertions of Alleged Harm Cannot Warrant a Stay.
Matias 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 our 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, seems foreseeable enough.
Congress, at least, seems to have anticipated this problem in its decision to limit judicial review in a way that does not permit this court to review interim, non-final orders like motions to stay pending the resolution of motions to reopen—even if petitioners present their requests dressed as petitions for habeas relief. Congress has already balanced the amount of due process available to petitioners with the executive's prerogative to remove individuals, and we decline to expand judicial review beyond the parameters set by Congress. See, e.g. , Thuraissigiam , 140 S. Ct. at 1983 ; see also Nken , 556 U.S. at 424–25, 129 S.Ct. 1749. This balance struck by Congress and recognized by this court in Shaboyan is not unreasonable.
Matias points to INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (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, 121 S.Ct. 2271 (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 judicial 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. Finally, we note that while Matias may be entitled to adjudication on his motion to reopen, he is not required to be present in the United States for that adjudication to take place. Nken , 556 U.S. at 424, 129 S.Ct. 1749 (citing § 1252). As the Supreme Court explained, it was precisely "to allow for more prompt removal" that Congress amended the immigration adjudication system, creating a means for aliens to continue having their cases heard even after they were removed. Id. "Congress repealed the presumption of an automatic stay ... [and] restricted the availability of injunctive relief." Id. at 425, 129 S.Ct. 1749. Once his removal order is executed, Matias will be the beneficiary of Congress's "streamlined" system. Id. at 424, 129 S.Ct. 1749. He presently has a motion to reopen pending before the BIA. Even if Matias is removed, his motion will remain pending until its adjudication. Matias is not stripped of any process due him by being removed. Rather, the system created by Congress will function precisely how it was intended. We have no authority to interfere with that system by granting Matias's request for a stay.
Citing St. Cyr and Thuraissigiam , Matias also asserts that we must construe § 1252(g) narrowly to avoid a constitutional concern, and that limits on review "must overcome ... [a] strong presumption in favor of judicial review." (citation omitted). But where Congress has provided a clear statement in favor of limiting judicial review, as it did in § 1252(g), we must follow the language of the statute. See St. Cyr , 533 U.S. at 298, 121 S.Ct. 2271. Further, there is no "constitutional concern" here because aliens are not "entitle[d] to procedural rights other than those afforded by statute," which Matias has received. Thuraissigiam , 140 S. Ct. at 1964.
Matias's alternative arguments in support of jurisdiction under Article III of the Constitution, the Due Process Clause, and 18 U.S.C. § 1331 are without merit because he is only entitled to the process provided by statute. See Thuraissigiam , 140 S. Ct. at 1964.
CONCLUSION
The district court correctly determined that it lacked jurisdiction to hear Matias's claims under § 1252(g). Matias's requested relief falls outside of the scope of habeas. His Suspension Clause argument therefore fails and should be dismissed for lack of jurisdiction. Matias has been afforded due process, and he will continue to receive the statutorily required process even when he is removed, just as Congress designed. The district court's denial of the TRO is affirmed and the district court is directed to dismiss Matias's petition.
AFFIRMED .
All pending motions are denied as moot.