Carlos Alexandre Viana Grossi v. Current or Acting Field Office Director ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARLOS ALEXANDRE VIANA GROSSI,) NO. CV 23-8785-FMO(E) ) 12 Petitioner, ) ) 13 v. ) ORDER DISMISSING PETITION ) 14 CURRENT OR ACTING FIELD OFFICE) WITHOUT PREJUDICE DIRECTOR, LOS ANGELES FIELD ) 15 OFFICE, US IMMIGRATION AND ) CUSTOMS ENFORCEMENT, ET AL., ) 16 ) Respondents. ) 17 ______________________________) 18 19 PROCEEDINGS 20 21 On October 16, 2023, Petitioner filed a “Petition for Writ of 22 Habeas Corpus by a Person in Federal Custody; Exhibits (28 U.S.C. § 23 2241)” (“the Petition”). On November 15, 2023, Respondents filed the 24 “Government’s Motion to Dismiss Petition, etc.” (“Motion to Dismiss”). 25 On January 18, 2024, Petitioner filed “Opposition to Government’s 26 Motion to Dismiss.” 27 /// 1 BACKGROUND 2 3 In 2019, federal authorities arrested Petitioner, a Brazilian 4 citizen, at the Los Angeles International Airport as Petitioner was 5 traveling from London to Australia (Petition, p. 2; Declaration of 6 Paul Villagran, filed November 15, 2023).1 Following a jury trial in 7 federal court, Petitioner was convicted of a felony drug crime and 8 sentenced to a prison term. See United States v. Grossi, CR 19-302- 9 FMO. 10 11 Meanwhile, Petitioner sought asylum and withholding of removal 12 (Petition, pp. 6-10; Declaration of Paul Villagran). In August of 13 2023, after Petitioner had been transferred from the custody of the 14 Bureau of Prisons into the custody of the U.S. Immigrations and 15 Customs Enforcement (“ICE”), an asylum officer conducted an interview 16 of Petitioner (Petition, pp. 8-10; Declaration of Paul Villagran). 17 The asylum officer found no “credible fear” of prosecution or torture, 18 thereby denying asylum and ordering Petitioner’s exclusion and removal 19 (Petition, p. 10; Declaration of Paul Villagran). In a “final order,” 20 an immigration judge affirmed (Petition, p. 10; Exhibit G to 21 Declaration of Paul Villagran; “Opposition, etc.,” filed January 18, 22 2024). In November of 2023, Petitioner was removed to Brazil, where 23 he currently resides (“Opposition, etc.,” filed January 18, 2024). 24 25 Prior to this removal, while Petitioner was still in ICE 26 detention, Petitioner filed the Petition. Construed liberally, the 27 1 Petitioner states he then was “traveling outside of 1 Petition may seek to challenge the validity of: (1) Petitioner’s ICE 2 detention; (2) Petitioner’s conviction; and/or (3) Petitioner’s 3 exclusion and removal. 4 5 DISCUSSION 6 7 For the reasons discussed herein, the Petition is dismissed 8 without prejudice. Petitioner’s challenges to his former ICE 9 detention are moot, and this Court lacks section 2241 jurisdiction 10 over Petitioner’s challenges to his conviction, his exclusion and his 11 removal. 12 13 Petitioner’s multiple challenges to Petitioner’s former ICE 14 detention are moot. A federal court’s jurisdiction is limited to 15 cases or controversies. U.S. Const. art. III, § 2; see also Iron 16 Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1983). “[A] federal 17 court has no authority to give opinions upon moot questions or 18 abstract propositions, or to declare principles or rules of law which 19 cannot affect the matter in issue in the case before it.” Church of 20 Scientology of Calif. v. United States, 506 U.S. 9, 12 (1992) 21 (citations and quotations omitted). The “case and controversy” 22 requirement demands that the parties continue to have a personal stake 23 in the outcome of a federal lawsuit through all stages of the judicial 24 proceeding. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “This means 25 that, throughout the litigation, the [party seeking relief] must have 26 suffered, or be threatened with, an actual injury traceable to the 27 defendant and likely to be redressed by a favorable judicial 1 longer is in ICE detention. Thus, the Petition’s multiple challenges 2 to the legality of that detention, (including the Petition’s request 3 for an “intensive supervision” alternative to detention), no longer 4 present a live controversy. See United States v. Geophysical Corp., 5 732 F.2d 693, 698 (9th Cir. 1984) (“A claim is moot if it has lost its 6 character as a present, live controversy.”); see also Machuca-Tellez 7 v. Holder, 388 Fed. App’x 609, 610 (9th Cir. 2010) (section 2241 8 petition challenging immigration detention mooted by petitioner’s 9 removal from the United States); Carpio v. Dep’t of Homeland Sec., 10 2020 WL 7418966, at *1 (C.D. Cal. Mar. 13, 2020) (same). 11 12 Petitioner’s multiple challenges to the validity of his 13 conviction cannot properly be brought under 28 U.S.C. section 2241. A 14 federal prisoner who contends that his or her conviction or sentence 15 is subject to collateral attack “may move the court which imposed the 16 sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 17 2255. A prisoner generally may not substitute a habeas petition under 18 28 U.S.C. section 2241 for a section 2255 motion. See 28 U.S.C. § 19 2255; see also Stephens v. Herrera, 464 F.3d 895, 897-99 (9th Cir. 20 2006), cert. denied, 549 U.S. 1313 (2007); Hernandez v. Campbell, 204 21 F.3d 861, 864 (9th Cir. 2000). 22 23 An application for a writ of habeas corpus in behalf of a 24 prisoner who is authorized to apply for relief by motion 25 pursuant to this section, shall not be entertained if it 26 appears that the applicant has failed to apply for relief, 27 by motion, to the court which sentenced him, or that such 1 remedy by motion is inadequate or ineffective to test the 2 legality of his detention. 3 4 28 U.S.C. § 2255(e); see Stephens v. Herrera, 464 F.3d at 897-99; 5 Hernandez v. Campbell, 204 F.3d at 864. 6 7 In the present case, Petitioner has failed to show that a section 8 2255 motion would be “inadequate or ineffective” within the meaning of 9 section 2255’s “saving clause.” See Jones v. Hendrix, 599 U.S. 465, 10 477-78 (2023) (narrowly construing section 2255’s “saving clause”; 11 even a petitioner’s alleged innocence does not constitute an exception 12 to the exclusivity of section 2255). Moreover, the United States 13 Court of Appeals for the Ninth Circuit recently determined that 14 Petitioner failed to show that his section 2255 remedy was “inadequate 15 or ineffective.” See Grossi v. United States, Ninth Circuit Case No. 16 23-55598, Dkt. 30, filed December 15, 2023. Therefore, as Petitioner 17 repeatedly has been advised, he may not properly challege his 18 conviction under 28 U.S.C. section 2241. See id.; Grossi v. United 19 States, CV 23-3405-FMO, Dkt. 7, filed June 20, 2023. 20 21 Petitioner’s multiple challenges to the validity of Petitioner’s 22 exclusion and removal also cannot properly be brought in district 23 court under 28 U.S.C. section 2241. The REAL ID Act of 2005 (“the 24 Act”), signed into law May 11, 2005, generally provides that “a 25 petition for review filed with an appropriate court of appeals . . . 26 shall be the sole and exclusive means for judicial review of an order 27 of removal. . . .” 8 U.S.C. § 1252(a)(5) (as amended by section 1 jurisdiction over orders of removal and vested jurisdiction to review 2 such orders exclusively in the courts of appeals.” Puri v. Gonzales, 3 464 F.3d 1038, 1041 (9th Cir. 2006) (citation omitted); accord Paz v. 4 California, 2019 WL 1581418, at *4 (C.D. Cal. Feb. 11, 2019). Thus, 5 the Act “makes the circuit courts the ‘sole’ judicial body able to 6 review challenges to final orders of deportation, exclusion, or 7 removal.” Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 8 2005); 8 U.S.C. § 1252(a). Therefore, to the extent the present 9 Petition challenges a final order of exclusion and/or removal, this 10 Court lacks jurisdiction over the Petition. Dismissal without 11 prejudice is appropriate. See Iasu v. Smith, 511 F.3d 881, 888-89 12 (9th Cir. 2007) (transfer to the Ninth Circuit of a habeas petition 13 filed after May 11, 2005 is not an option).2 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 2 In arguing that the Court should not dismiss the 26 Petition, Petitioner cites Zegarra-Gomez v. I.N.S., 314 F.3d 1124 (9th Cir. 2003). However, as recognized in Rios-Bamac v. Lynch, 27 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 1 ORDER 2 3 For all of the foregoing reasons,3 IT IS ORDERED that the 4 Petition is dismissed without prejudice.4 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: January 24, 2024. 9 10 11 _______________/_s_/_________________ FERNANDO M. OLGUIN 12 UNITED STATES DISTRICT JUDGE 13 14 Presented this 24th day of 15 January, 2024, by: 16 17 /S/ CHARLES F. EICK 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 3 The Court need not and does not consider any of the 26 other bases for dismissal urged in the Motion to Dismiss. 27 4 Because of the fundamental, jurisdictional nature of the defects in the Petition, amendment of the Petition would be