Jane Doe v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE; JOHN DOE, through their No. 09-16787
Guardian ad Litem, Fernando Aguirre-
Guerra, D.C. No. 3:08 cv-0457 LRH
Plaintiffs - Appellants,
MEMORANDUM*
v.
ERIC H. HOLDER, JR., Attorney General,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted July 19, 2011**
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Jane and John Doe, the United States citizen minor children of an alien
subject to removal, brought suit challenging the constitutionality of 8 U.S.C.
§ 1229b(b)(1)(D), which requires an alien to establish “exceptional and extremely
unusual hardship” to a U.S. citizen spouse, parent, or child to qualify for
cancellation of removal. The district court concluded that it had jurisdiction and
then dismissed the action on its merits. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We conclude that the district court lacked jurisdiction, and therefore
remand with directions that the action be dismissed on that basis.
Plaintiffs’ father was ordered removed from the United States. His
application for cancellation of removal,1 on the ground that his removal would
cause exceptional and extremely unusual hardship on his U.S. citizen minor
children, was denied. Subsequently, Plaintiffs filed suit, alleging that the
“exceptional and extremely unusual hardship” standard of 8 U.S.C.
§ 1229b(b)(1)(D) infringes on their “fundamental right . . . to live with their father
in the United States.” The district court granted the government’s motion to
1
The Attorney General, at his discretion, may cancel the removal of a
deportable alien if the alien, among other things, “establishes that removal would
result in exceptional and extremely unusual hardship to the alien’s spouse, parent,
or child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1229b(b)(1).
2
dismiss the complaint for failure to state a claim for which relief may be granted,
and entered judgment dismissing the action on that basis.
We review de novo whether there is subject matter jurisdiction. Atwood v.
Fort Peck Tribal Court Assiniboine & Sioux Tribes, 513 F.3d 943, 946 (9th Cir.
2008). We also review de novo a dismissal for failure to state a claim pursuant to
Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A dismissal
may be affirmed on any proper ground supported by the record. Johnson v.
Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008).
The district court erred in exercising jurisdiction over Plaintiffs’ claims. The
REAL ID Act, 8 U.S.C. § 1252(b)(9), vests exclusive jurisdiction over claims
“arising from” final orders of removal in the courts of appeals. See Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83 (dubbing 8
U.S.C. § 1252(b)(9) a “zipper clause”). Section 1252(b)(9) provides:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall be
available only in judicial review of a final order under this section.
Except as otherwise provided in this section, no court shall have
jurisdiction . . . to review such an order or such questions of law or
fact.
3
8 U.S.C. § 1252(b)(9) (emphasis added). “Through this section, ‘Congress made
clear that review of a final removal order is the only mechanism for reviewing any
issue raised in a removal proceeding.’” Singh v. Gonzales, 499 F.3d 969, 976 (9th
Cir. 2007) (quoting H.R. Rep. No. 109-72, at 173).
Here, by directly challenging the standard applied to their father’s
application for cancellation of removal, Plaintiffs seek review of a question of law
arising from the action to remove their father.2 They acknowledge that their
father’s removal is the sole motive for the suit and seek injunctive relief to prevent
it. Critically, the constitutional issue raised by Plaintiffs could have been asserted
by their father in his immigration proceedings, including in his petition for judicial
review of his final order of removal. E.g., Martinez-Rosas v. Gonzales, 424 F.3d
926, 930 (9th Cir. 2005) (explaining that under the REAL ID Act, the courts of
appeals have jurisdiction to review due process challenges to final orders of
2
A “final order of removal” “means the administrative order
concluding that the alien is removable or ordering removal.” Galindo-Romero v.
Holder, 621 F.3d 924, 927 (9th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(47)(A))
(quotation marks and alterations omitted).
4
removal); 8 U.S.C. § 1252(a)(2)(D).3 As such, the constitutionality of the
“exceptional and extremely unusual hardship” standard is a “question of law” that
“aris[es] from” the action to remove Plaintiffs’ father. 8 U.S.C. § 1252(b)(9). The
district court lacked subject matter jurisdiction. For this reason, the judgment of
the district court dismissing Plaintiffs’ action on the merits is vacated and the case
is remanded to the district court with directions that the action be dismissed for
lack of jurisdiction. No costs.
VACATED and REMANDED.
3
Children of aliens do not have standing intervene in removal
proceedings. E.g. Agosto v. Boyd, 443 F.2d 917 (9th Cir. 1971) (per curiam).
Nevertheless, alien parents of U.S. citizen children can raise the constitutional
claims of their children in removal proceedings. See, e.g., Urbano de Malaluan v.
INS, 577 F.2d 589, 594-95 (9th Cir. 1978).
5