Opinion
No. CV 05-1369-PHX-NVW (JRI).
November 22, 2005
REMAND ORDER
This action was originally filed with the United States Court of Appeals for the Ninth Circuit as a petition for review from a decision of the Board of Immigration Appeals ("BIA"). The Ninth Circuit treated the action as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and transferred it to this Court.Salvatierra-Cermeno v. Gonzales, 404 F.3d 1119 (9th Cir. 2005). The matter will now be remanded to the immigration judge for further proceedings consistent with Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004).
BACKGROUND
Petitioner is a native and citizen of Guatemala who entered the United States in 1991. Petitioner filed an application for asylum in 1993. The application was referred to the immigration court. The immigration judge found that Petitioner was deportable, but granted his applications for asylum and withholding of removal. The Board of Immigration Appeals ("BIA") sustained the Government's appeal, reversed the immigration judge's order granting asylum and withholding of removal and issued its own order for Petitioner's removal to Guatemala. Petitioner sought review in the United States Court of Appeals for the Ninth Circuit. The court of appeals held that the "BIA had no authority to issue an order removing Salvatierra-Cermeno to Guatemala." Salvatierra-Cermeno, 404 F.3d at 1119. The court also held, however, that "because 8 U.S.C. § 1252 gives [the courts of appeals] jurisdiction to review only final orders of removal, we lack jurisdiction to consider Salvatierra-Cermeno's petition for review." Id. Rather than dismissing the appeal, however, the Ninth Circuit treated the petition for review as a petition for writ of habeas corpus and transferred the action to this Court under 28 U.S.C. § 1631, citing Molina-Camacho, 393 F.3d at 942. Salvatierra-Cermeno, 404 F.3d at 1119.
DISCUSSION
Shortly after this case was transferred by the Ninth Circuit, the President signed into law the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). As amended by the REAL ID Act, 8 U.S.C. § 1252(a)(5) now provides in relevant part:
(5) EXCLUSIVE MEANS OF REVIEW. — Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, 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 Act, except as provided in subsection (e).
REAL ID Act § 106(a)(1)(B) (emphasis added). By this amendment, Congress has deprived the district courts of habeas corpus jurisdiction to review "an order of removal" entered under the Immigration and Nationality Act. This jurisdiction stripping provision is retroactive. REAL ID Act § 106(b) ("subsection (a) shall take effect upon the date of enactment of this division and shall apply to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment"). Additionally, REAL ID Act § 106(c) provides that if any § 2241 habeas corpus case "challenging a final administrative order of removal . . . is pending in a district court on the date of enactment, then the district court shall transfer the case . . . to the [appropriate] court of appeals." REAL ID Act § 106(c). Thus, if Petitioner is seeking judicial review of "an order of removal," this Court no longer has jurisdiction to entertain the action and the action must be transferred back to the Ninth Circuit. Here, however, the Court retains habeas corpus jurisdiction because, as explained inMolina-Camacho, the order of removal entered by the BIA is a "legal nullity." Molina-Camacho, 393 F.3d at 941-42.
In Molina-Camacho, an immigration judge found Molina removable, but granted his application for cancellation of removal. The BIA reversed and entered an order removing Molina to Mexico. On direct review, the Ninth Circuit held that "the BIA acted ultra vires in issuing a deportation order instead of remanding to the [immigration judge]." Molina-Camacho, 393 F.3d at 941. The court of appeals further held that the "BIA's act of issuing the order of removal render[ed] that portion of the proceedings a `legal nullity.'" Id. (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 884 (9th Cir. 2003). In the absence of a proper removal order, the Ninth Circuit found itself without jurisdiction to entertain the petition for review because direct review in the courts of appeals under 8 U.S.C. § 1252 is limited to the review of a "final order of removal." Molina-Camacho, 393 F.3d at 942. Rather than dismissing the appeal, however, the Ninth Circuit treated the petition for review as a petition for writ of habeas corpus and transferred the action to the district court under 28 U.S.C. § 1631. Id. The Ninth Circuit instructed the district court to remand the matter to the immigration judge for further proceedings and noted that if the immigration judge issues an order of removal, Molina would then be permitted to raise the merits of his claims on direct review to the court of appeals. Id. at 942 n. 4.
Here, as in Molina-Camacho, the BIA's ultra vires removal order is a legal nullity. This Court therefore retains jurisdiction over this habeas corpus action because the jurisdiction striping provisions of the REAL ID Act only limit the district courts' jurisdiction to review "orders of removal" and there is no such order in this case. Accordingly, this matter will be remanded to the immigration judge for further proceedings consistent with Molina-Camacho. If upon remand the immigration judge enters a final order of removal, the Ninth Circuit will then have jurisdiction to consider a direct petition for review.See Molina-Camacho, 393 F.3d at 942 n. 4. IT IS THEREFORE ORDERED this matter is remanded to the immigration judge for further administrative proceedings consistent with this Order and Molina-Camacho, 393 F.3d at 942. This Order terminates the action in this Court.
IT IS FURTHER ORDERED that in addition to serving counsel of record for Petitioner and Respondent, the Clerk of Court shall serve a copy of this Remand Order upon the United States Attorney for the District of Arizona by certified mail addressed to the civil process clerk at the office of the United States Attorney.