Fernando Menendez-Gonzalez v. Kirstjen Nielsen

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2018
• Docket: 17-55507
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 31 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 17-55507 FERNANDO MENENDEZ-GONZALEZ, D.C. No. 2:16-cv-03544-FMO-AS Petitioner-Appellant,

v. MEMORANDUM*

KIRSTJEN NIELSEN, Secretary of Homeland Security, et al.,

Respondents-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted December 3, 2018 Pasadena, California

Before: TASHIMA and IKUTA, Circuit Judges, and KENNELLY,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

1 Fernando Menendez-Gonzalez appeals the district court's dismissal of his

petition for a writ of habeas corpus for lack of subject-matter jurisdiction and

denial of his motions for leave to file second and third amended petitions. He

argues that the district court erred in concluding that 8 U.S.C. §§ 1252(a)(5) and

(b)(9) stripped the court of jurisdiction over his petition. He relies on Singh v.

Gonzales, 499 F.3d 969 (9th Cir. 2007), in which this Court recognized a limited

exception to 8 U.S.C. § 1252(b)(9) for habeas petitions challenging conduct that

occurred “after the issuance of the final order of removal” whose effect is to deny

the petitioner “a day in court.” Singh, 499 F.3d at 979.

Menendez-Gonzalez alleges that the Department of Homeland Security

failed to properly serve him with the final order of reinstatement of removal and

that DHS cancelled the reinstatement order by releasing him from custody and

permitting him to pursue litigation challenging his deportation order. He contends

that these actions prevented him from timely filing a petition for review in this

Court and that the district court may therefore exercise habeas jurisdiction under

Singh.

The Court considered and rejected these arguments when it dismissed his

petition for review as untimely. See Menendez-Gonzalez v. Lynch, No. 16-71515

(9th Cir. Sept. 21, 2016). In that case, this Court dismissed his petition after both

2 parties extensively briefed these issues. The authorities cited in that memorandum

disposition further demonstrate that the Court was not persuaded by Menendez-

Gonzalez's arguments. For example, the Court cited 8 U.S.C. § 1252(b)(1) and 8

C.F.R. § 241.8, which prescribe the procedures for reinstating removal orders. The

Court also cited Castro-Cortez v. Holder, 239 F.3d 1037, 1046 n.10 (9th Cir.

2001), in which the Court made its own findings of fact about whether there was

legal cause for the petitioner's untimely filing. Taken together, these citations

demonstrate that the earlier panel of this Court rejected Menendez-Gonzalez’s

arguments that DHS's conduct was the legal cause of his delay in filing the petition

for review.

Our earlier decision precludes Menendez-Gonzalez from relitigating these

same arguments to support subject-matter jurisdiction over his habeas petition. See

Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d 1216, 1225 (9th Cir.

2016) (“Collateral estoppel, or issue preclusion, bars the relitigation of issues

actually adjudicated in previous litigation between the same parties.”). And the

district court did not err in denying the motions for leave to file amended petitions;

it is clear, based on the foregoing analysis, that the proposed amendments would be

3 futile for lack of subject-matter jurisdiction. See Carvalho v. Equifax Info. Servs.

LLC, 629 F.3d 876, 893 (9th Cir. 2010).

Finally, because Menendez-Gonzalez's arguments are barred by issue

preclusion, we need not reach the underlying question of whether the Singh

exception would otherwise confer jurisdiction over his habeas petition.

AFFIRMED.