Jose Anguiano-Hernandez v. United States

FILED
NOT FOR PUBLICATION SEP 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANGUIANO-HERNANDEZ, No. 13-16803
Petitioner - Appellant, D.C. No. 2:13-cv-00926-MMD-
CWH
v.
UNITED STATES OF AMERICA; et al., MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Argued and Submitted September 12, 2014
San Francisco, California
Before: FISHER, BERZON, and CHRISTEN, Circuit Judges.
Jose Anguiano-Hernadez, a native and citizen of Mexico, appeals from the
district court’s order dismissing his petition for a writ of habeas corpus. The
district court concluded that under the REAL ID Act of 2005, 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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§ 1252(a)(5) and (b), it lacked jurisdiction to consider the petition. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
I. The REAL ID Act precludes habeas review of Anguiano-Hernandez’s
removal order.
The REAL ID Act provides that “no court shall have jurisdiction, by habeas
corpus” to review an order of removal. 8 U.S.C. § 1252(b)(9); see also Singh v.
Holder, 638 F.3d 1196, 1210 (9th Cir. 2011) (“The REAL ID Act expressly
eliminated habeas review over all final orders of removal.” (internal quotation
marks omitted)). Instead, “the sole and exclusive means for judicial review of an
order of removal” is a petition for review. 8 U.S.C. § 1252 (a)(5). The REAL ID
Act’s jurisdiction-stripping provisions also apply to indirect challenges that are
“inextricably linked” to a removal order. Martinez v. Napolitano, 704 F.3d 620,
623 (9th Cir. 2012). “[T]he distinction between an independent claim and indirect
challenge will turn on the substance of the relief that a plaintiff is seeking.” Id. at
622 (internal quotation marks omitted).
In Singh, this court held that the district court did not have jurisdiction to
review a habeas petition in which a petitioner claimed he was unremovable and
that removal proceedings had violated his substantive due process rights. Id. at
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The parties are familiar with the facts, so we will not recount them
here.
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1210–12. We agreed with the district court’s statement that Singh’s argument was
a “backdoor attempt to have this Court review the underlying merits of Petitioner’s
removal, which this Court cannot do under the REAL ID Act.” Id. at 1210. We
reached this conclusion after observing that Singh made the same arguments in his
habeas petition that he made in his petition for review, that Singh’s habeas
challenge rested entirely on his assertion that he presented a meritorious argument
in his petition for review, and that Singh explicitly asked the court to evaluate
whether he was likely to prevail on his claim that he was not removable. Id. at
1211–12.
The same considerations are present here. Anguiano-Hernandez argues that
the 1990 removal order was “obtained unlawfully” and was “wholly improper”
because his temporary lawful permanent resident status was never rescinded. He
frames the central question in his habeas petition as “[w]hether it was a
fundamental error . . . for the Department of Homeland Security to issue an Order
to Show Cause . . . and thereafter for the Immigration Judge to issue a removal
order against him.” And he explicitly asks this court to vacate his order of removal
as a consequence of invalidating his 1990 deportation order.
We conclude that Anguiano-Hernandez’s habeas petition challenges a final
order of removal. As such, it is precluded by the REAL ID Act.
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II. The “gross miscarriage of justice” exception is not applicable.
Anguiano-Hernandez also argues that the REAL ID Act permits habeas
review of a removal order if the petitioner can show that he has suffered a “gross
miscarriage of justice.” But the post-REAL ID Act cases Anguiano-Hernandez
cites—Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir.
2008), Martinez-Merino v. Mukasey, 525 F.3d 801 (9th Cir. 2008), and Singh v.
Gonzales, 499 F.3d 969 (9th Cir. 2007)—do not suggest the district court had
jurisdiction to hear Anguiano-Hernandez’s habeas petition. Indeed, Singh notes
that “the REAL ID Act expressly eliminated habeas review over all final orders of
removal” without hinting at an exception for gross miscarriages of justice. 499
F.3d at 977.
Because the gross miscarriage of justice exception cannot confer district
court jurisdiction over Anguiano-Hernandez’s petition, we do not consider whether
the 1990 removal order was unconstitutional or otherwise invalid.
AFFIRMED.
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