Garnica v. Chertoff et al Doc.

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Case 4:07-cv-04953-SBA Document 8 Filed 09/27/2007 Page 1 of 2

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA
3 OAKLAND DIVISION
4 GUMARO GARCIA GARNICA, )
) No. C 07-4953 SBA
5 Petitioner, )
)
6 v. )
) ORDER DENYING TEMPORARY
7 MICHAEL CHERTOFF, Secretary, ) RESTRAINING ORDER AND DISMISSING
Department of Homeland Security; ) PETITION FOR A WRIT OF HABEAS
8 NANCY ALCANTAR, Field Office Director, ) CORPUS
Immigration and Customs Enforcement, and )
9 PETER KEISLER, Acting Attorney General )
of the United States, )
10 )
Respondents. )
11 )
12 Petitioner, a native and citizen of Mexico, and subject of a final order of removal, asks this
13 Court to enjoin and restrain Respondents from removing him to Mexico and seeks reinstatement of
14 the privilege of voluntary departure. For the reasons set forth below, the request for a temporary
15 restraining order is DENIED and the petition for a writ of habeas corpus is DISMISSED.
16 The REAL ID Act of 2005 eliminated district court habeas corpus jurisdiction over final orders
17 of deportation or removal and vested jurisdiction to review such orders exclusively in the courts of
18 appeals:
19 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241
of title 28, United States Code, or any other habeas provision, and sections 1361 and 1651 of
20 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
21 entered or issued under any provision of this Act, except as provided in subsection (e).
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INA § 242(a)(5), 8 U.S.C. § 1252(a)(5). The REAL ID Act further provided:
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Judicial review of all questions of law and fact, including interpretation and application of
24 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
25 review of a final order under this section. Except as otherwise provided in this section, no court
shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas
26 corpus provision, by section 1361 or 1651 of such title, or by any other provision of law
(statutory or nonstatutory), to review such an order or such questions of law or fact.
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INA § 242(b)(9), 8 U.S.C. § 1252(b)(9). Furthermore, Section 242(g) of the INA, 8 U.S.C. §
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 Case 4:07-cv-04953-SBA Document 8 Filed 09/27/2007 Page 2 of 2

1 1252(g), as amended by the REAL ID Act, now provides,

2 (g) Exclusive jurisdiction
3 Except as provided in this section and notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus
4 provision, and sections 1361 and 1651 of such title, 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
5 General to commence proceedings, adjudicate cases, or execute removal orders against any
alien under this chapter.
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Thus, the only courts with subject matter jurisdiction to review such final orders are the courts
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of appeals. Although the REAL ID Act did not eliminate habeas jurisdiction over challenges to
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detention that are independent of challenges to final orders of removal, Petitioner's claims clearly
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present a challenge to the Attorney General's action to execute his administratively final order of
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removal. As a result, this Court lacks jurisdiction to entertain both Petitioner's habeas petition, the
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request for a stay of removal and the request to reinstate voluntary departure. Accordingly,
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Petitioner's habeas petition is DISMISSED and the request for a temporary restraining order
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DENIED.
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SO ORDERED.
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16 Dated: 9/27/07 SAUNDRA B. ARMSTRONG
United States District Judge
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