1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ANTONIO EDIOR PIERRE, ) Case No. 5:23-cv-02606-ODW-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) ) WHY THE PETITION SHOULD 14 ) ) N OFO T JU B RE I SD DIS ICM TI IS OSE ND FOR LACK ) 15 MERRICK GARLAND, et al., ) ) 16 Respondents. ) ) 17 18 I. 19 INTRODUCTION 20 On December 21, 2023, the Court received from Antonio Edior Pierre 21 (“Petitioner”), proceeding pro se, a Petition for Writ of Habeas Corpus by a 22 Person in Federal Custody pursuant to 28 U.S.C. § 2241. Dkt. 1 (“Petition” or 23 “Pet.”). Petitioner, who is currently detained by U.S. Immigration and 24 Customs Enforcement (“ICE”) at the Desert View Annex in Adelanto, 25 California, purports to challenge his final order of removal. 26 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the 27 United States District Courts (“Habeas Rules”), a district court “must 28 promptly examine” the petition and, “[i]f it plainly appears from the petition 1 and any attached exhibits that the petitioner is not entitled to relief,” the “judge 2 must dismiss the petition.” See also Mayle v. Felix, 545 U.S. 644, 656 (2005). 3 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 4 screening requirements that apply to habeas petitions brought under 28 U.S.C. 5 § 2254. See Habeas Rule 1(b) (providing that district courts may apply the 6 Habeas Rules to habeas petitions that are not brought under 28 U.S.C. § 2254); 7 Lane v. Feather, 584 F. App’x 843, 843 (9th Cir. 2014) (affirming district 8 court’s application of Habeas Rule 4 in dismissing a Section 2241 petition). 9 The Court has reviewed the Petition under Habeas Rule 4 and finds the 10 Petition appears subject to dismissal for lack of jurisdiction. 11 II. 12 SUMMARY OF THE PETITION 13 The Department of Homeland Security (“DHS”) initiated removal 14 proceedings on July 19, 2023, serving Petitioner with a Notice of Intent to 15 Issue a Final Administrative Removal Order (“Notice of Intent”). A Final 16 Administrative Removal Order was served on Petitioner the same day, without 17 “obtaining a concession of removability.” Pet. at 3, 7 (CM/ECF pagination). 18 Petitioner challenges the final order of removal, arguing that he is a citizen or 19 national of the United States and DHS’s issuance of a Notice of Intent and the 20 removal order the same day violated 8 U.S.C. § 1228(b)(4) and 8 C.F.R. 21 § 238.1, which protects Petitioner’s due process rights. Id. at 3. Petitioner 22 further contends: (1) DHS failed to prove by clear, convincing, and 23 unequivocal evidence that he was removable under 8 U.S.C. § 1228(b) as a 24 noncitizen convicted of an aggravated felony; (2) DHS erroneously concluded 25 he “failed to establish a nexus to a protected ground sufficient to entitle him to 26 a full hearing on his birth claim[] and withholding of removal claim”; (3) DHS 27 erred in relying on Petitioner’s criminal case as it is “still pending his actual 28 innocence motion”; and (4) he did not concede removability or waive his right 1 to rebut DHS’s charges and “still had nearly the full ten days.” Id. at 3-4. 2 Petitioner claims he has tried to file multiple motions in the Immigration 3 Court, but they have all been returned because his case number is incorrect. Id. 4 at 3. He requests that he be immediately released from custody. Id. at 4. 5 III. 6 DISCUSSION 7 Petitioners seeking habeas relief must show they are in custody in 8 violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. 9 § 2241(c)(3). Section 2241 confers jurisdiction upon federal courts to consider 10 challenges to the detention of aliens in removal proceedings. See Demore v. 11 Kim, 538 U.S. 510, 517-18 (2003). However, pursuant to the REAL ID Act of 12 2005, which amended the Immigration and Nationality Act (“INA”), district 13 courts lack habeas jurisdiction to review final orders of removal; instead, “the 14 sole and exclusive means for judicial review of an order of removal” lies with 15 the appropriate court of appeals in a petition for review. 8 U.S.C. § 1252(a)(5); 16 Martinez v. Napolitano, 704 F.3d 620, 621-22 (9th Cir. 2012) (“The exclusive 17 means to challenge an order of removal is the petition for review process.”); 18 see also 8 U.S.C. § 1252(g) (“Except as provided in this section and 19 notwithstanding any other provision of law . . ., including section 2241 of Title 20 28, or any other habeas corpus provision . . . no court shall have jurisdiction to 21 hear any cause or claim by or on behalf of any alien arising from the decision 22 or action by the Attorney General to commence proceedings, adjudicate cases, 23 or execute removal orders against any alien under this chapter.”). The REAL 24 ID Act “makes the circuit courts the ‘sole’ judicial body able to review 25 challenges to final orders of deportation, exclusion, or removal.” Alvarez- 26 Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (explaining that the 27 REAL ID Act “eliminated habeas jurisdiction, including jurisdiction under 28 28 U.S.C. § 2241, over final orders of deportation, exclusion, or removal”). 1 Additionally, the INA includes a “zipper clause” that consolidates all 2 “questions of law and fact . . . arising from any action taken or proceeding 3 brought to remove an alien” into a petition for review. Martinez, 704 F.3d at 4 622 (quoting 8 U.S.C. § 1252(b)(9)). “This statutory scheme was designed to 5 ‘limit all aliens to one bite of the apple with regard to challenging an order of 6 removal,’” id. (citation omitted), and makes clear that “review of a final 7 removal order is the only mechanism for reviewing any issue raised in a 8 removal proceeding.” Singh v. Gonzales, 499 F.3d 969, 976 (9th Cir. 2007) 9 (citation omitted); see also J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 10 2016) (explaining that Section 1252(a)(5) and (b)(9) “channel judicial review 11 over final orders of removal to the courts of appeal”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ANTONIO EDIOR PIERRE, ) Case No. 5:23-cv-02606-ODW-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) ) WHY THE PETITION SHOULD 14 ) ) N OFO T JU B RE I SD DIS ICM TI IS OSE ND FOR LACK ) 15 MERRICK GARLAND, et al., ) ) 16 Respondents. ) ) 17 18 I. 19 INTRODUCTION 20 On December 21, 2023, the Court received from Antonio Edior Pierre 21 (“Petitioner”), proceeding pro se, a Petition for Writ of Habeas Corpus by a 22 Person in Federal Custody pursuant to 28 U.S.C. § 2241. Dkt. 1 (“Petition” or 23 “Pet.”). Petitioner, who is currently detained by U.S. Immigration and 24 Customs Enforcement (“ICE”) at the Desert View Annex in Adelanto, 25 California, purports to challenge his final order of removal. 26 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the 27 United States District Courts (“Habeas Rules”), a district court “must 28 promptly examine” the petition and, “[i]f it plainly appears from the petition 1 and any attached exhibits that the petitioner is not entitled to relief,” the “judge 2 must dismiss the petition.” See also Mayle v. Felix, 545 U.S. 644, 656 (2005). 3 A habeas petition brought under 28 U.S.C. § 2241 is subject to the same 4 screening requirements that apply to habeas petitions brought under 28 U.S.C. 5 § 2254. See Habeas Rule 1(b) (providing that district courts may apply the 6 Habeas Rules to habeas petitions that are not brought under 28 U.S.C. § 2254); 7 Lane v. Feather, 584 F. App’x 843, 843 (9th Cir. 2014) (affirming district 8 court’s application of Habeas Rule 4 in dismissing a Section 2241 petition). 9 The Court has reviewed the Petition under Habeas Rule 4 and finds the 10 Petition appears subject to dismissal for lack of jurisdiction. 11 II. 12 SUMMARY OF THE PETITION 13 The Department of Homeland Security (“DHS”) initiated removal 14 proceedings on July 19, 2023, serving Petitioner with a Notice of Intent to 15 Issue a Final Administrative Removal Order (“Notice of Intent”). A Final 16 Administrative Removal Order was served on Petitioner the same day, without 17 “obtaining a concession of removability.” Pet. at 3, 7 (CM/ECF pagination). 18 Petitioner challenges the final order of removal, arguing that he is a citizen or 19 national of the United States and DHS’s issuance of a Notice of Intent and the 20 removal order the same day violated 8 U.S.C. § 1228(b)(4) and 8 C.F.R. 21 § 238.1, which protects Petitioner’s due process rights. Id. at 3. Petitioner 22 further contends: (1) DHS failed to prove by clear, convincing, and 23 unequivocal evidence that he was removable under 8 U.S.C. § 1228(b) as a 24 noncitizen convicted of an aggravated felony; (2) DHS erroneously concluded 25 he “failed to establish a nexus to a protected ground sufficient to entitle him to 26 a full hearing on his birth claim[] and withholding of removal claim”; (3) DHS 27 erred in relying on Petitioner’s criminal case as it is “still pending his actual 28 innocence motion”; and (4) he did not concede removability or waive his right 1 to rebut DHS’s charges and “still had nearly the full ten days.” Id. at 3-4. 2 Petitioner claims he has tried to file multiple motions in the Immigration 3 Court, but they have all been returned because his case number is incorrect. Id. 4 at 3. He requests that he be immediately released from custody. Id. at 4. 5 III. 6 DISCUSSION 7 Petitioners seeking habeas relief must show they are in custody in 8 violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. 9 § 2241(c)(3). Section 2241 confers jurisdiction upon federal courts to consider 10 challenges to the detention of aliens in removal proceedings. See Demore v. 11 Kim, 538 U.S. 510, 517-18 (2003). However, pursuant to the REAL ID Act of 12 2005, which amended the Immigration and Nationality Act (“INA”), district 13 courts lack habeas jurisdiction to review final orders of removal; instead, “the 14 sole and exclusive means for judicial review of an order of removal” lies with 15 the appropriate court of appeals in a petition for review. 8 U.S.C. § 1252(a)(5); 16 Martinez v. Napolitano, 704 F.3d 620, 621-22 (9th Cir. 2012) (“The exclusive 17 means to challenge an order of removal is the petition for review process.”); 18 see also 8 U.S.C. § 1252(g) (“Except as provided in this section and 19 notwithstanding any other provision of law . . ., including section 2241 of Title 20 28, or any other habeas corpus provision . . . no court shall have jurisdiction to 21 hear any cause or claim by or on behalf of any alien arising from the decision 22 or action by the Attorney General to commence proceedings, adjudicate cases, 23 or execute removal orders against any alien under this chapter.”). The REAL 24 ID Act “makes the circuit courts the ‘sole’ judicial body able to review 25 challenges to final orders of deportation, exclusion, or removal.” Alvarez- 26 Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (explaining that the 27 REAL ID Act “eliminated habeas jurisdiction, including jurisdiction under 28 28 U.S.C. § 2241, over final orders of deportation, exclusion, or removal”). 1 Additionally, the INA includes a “zipper clause” that consolidates all 2 “questions of law and fact . . . arising from any action taken or proceeding 3 brought to remove an alien” into a petition for review. Martinez, 704 F.3d at 4 622 (quoting 8 U.S.C. § 1252(b)(9)). “This statutory scheme was designed to 5 ‘limit all aliens to one bite of the apple with regard to challenging an order of 6 removal,’” id. (citation omitted), and makes clear that “review of a final 7 removal order is the only mechanism for reviewing any issue raised in a 8 removal proceeding.” Singh v. Gonzales, 499 F.3d 969, 976 (9th Cir. 2007) 9 (citation omitted); see also J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 10 2016) (explaining that Section 1252(a)(5) and (b)(9) “channel judicial review 11 over final orders of removal to the courts of appeal”). 12 While Section 1252 does not bar habeas review over claims “independent 13 of or collateral to” the removal process, see J.E.F.M., 837 F.3d at 1032; 14 Martinez, 704 F.3d at 622, challenges to the procedure and substance of an 15 agency finding that are “inextricably linked” to an order of removal are 16 prohibited under Section 1252(a)(5). Martinez, 704 F.3d at 623. The distinction 17 between an independent claim and an indirect challenge turns on “the 18 substance of the relief that a plaintiff is seeking.” Id. at 622 (citation omitted). 19 Here, it appears the Court lacks jurisdiction over the claims raised in the 20 Petition. Petitioner seeks to relitigate the final order of removal, challenging 21 the procedure and substance of the removal proceedings, arguing, among other 22 things, that it was improper to issue the Notice of Intent and final order of 23 removal on the same day, he is a “citizen or national of the U.S.,” he is being 24 confused with someone else, and his criminal case is still pending on an 25 “actual innocence motion.” Pet. at 3-4. He claims he is entitled to immediate 26 release based on DHS’s erroneous finding that he is deportable as an alien 27 convicted of an aggravated felony. Id. at 4. As such, Petitioner appears to be 28 seeking an order rescinding the final order of removal, which is precisely the 1 || type of relief that is outside the subject matter jurisdiction of this courts. See 2 || Iasu v. Chertoff, 426 F. Supp. 2d 1124, 1128 (S.D. Cal. 2006) (explaining that 3 || the district court must dismiss, rather than transfer, a habeas petition filed after 4 || May 11, 2005), affirmed by Jasu v. Smith, 511 F.3d 881, 891-93 (9th Cir. 2007) 5 ||(agreeing with Eleventh Circuit that even if habeas corpus relief is precluded by 6 REAL ID Act, a deportable alien can still seek review of constitutional and 7 || legal claims by moving the immigration judge or Board of Immigration 8 || Appeals to reopen or reconsider its previous ruling, and if unsuccessful, by 9 || filing a petition for review in the appropriate court of appeals). 10 IV. 11 ORDER 12 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 13 therefore ORDERED TO SHOW CAUSE, in writing, by no later than 14 twenty-one (21) days from the date of this Order why this action should not 15 dismissed under Habeas Rule 4 for lack of jurisdiction. If, after review of 16 Order, Petitioner decides not to further pursue this action at this time, 17 || Petitioner may voluntarily dismiss the action by filing a Notice of Dismissal in 18 || accordance with Federal Rule of Civil Procedure 41(a)(1). The Clerk is 19 || directed to send Petitioner a Central District Request for Dismissal form. 20 Petitioner is cautioned that a failure to respond timely in compliance 21 || with this Order could result in the dismissal of this action for the foregoing 22 || reasons, for failure to prosecute, and/or failure to comply with a Court order. 23 || See Fed. R. Civ. P. 41(b). 24 25 Dated: January 03, 2024 26 27 Lie ee AG 28 N D. EARLY nited States Magistrate Judge