Mendez-Barocio v. William Barr

• Court: District Court, N.D. California
• Decided: July 9, 2020
• Docket: 5:20-cv-03558
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JUAN MENDEZ-BAROCIO, Case No. 20-03558 EJD 11 Petitioner,

12 ORDER OF DISMISSAL; v. ADDRESSING PENDING MOTIONS 13 WILLIAM BARR, et al., 14 Respondents. 15 (Docket Nos. 3, 4, 5, 6, 14, 15) 16

17 On May 28, 2020, Petitioner, a detainee being held at the Mersa Verde ICE 18 Processing Center, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 19 § 2241. Dkt. No. 1. Along with the petition, Petitioner filed a motion for a temporary 20 restraining order, Dkt. No. 3, a motion for leave to proceed in forma pauperis (“IFP”), Dkt. 21 No. 4, a motion for stay of removal, Dkt. No. 5, and a motion to appoint counsel, Dkt. No. 22 6. He subsequently filed two “motion to amend/correct.” Dkt. Nos. 14, 15. For the 23 reasons discussed below, this matter must be dismissed. 24

25 DISCUSSION 26 A. Jurisdiction 27 1 proceedings based on convictions in the State of California. Dkt. No. 1 at 12-13. 2 Petitioner states that his removal case is “ongoing and has involved appeals to the BIA.” 3 Id. at 13. After a petition for writ of habeas corpus was denied in the Eastern District, 4 Petitioner appealed to the Ninth Circuit. Id. Currently, the matter is pending before the 5 Ninth Circuit. Id. at 14. 6 District courts have habeas jurisdiction under 28 U.S.C. § 2241 to review final 7 orders of removal on constitutional and statutory grounds, provided that judicial review is 8 unavailable in the court of appeals. See INS v. St. Cyr, 533 U.S. 289, 314 (2001). Here, 9 Petitioner admits that his removal case is ongoing and that he is waiting review in the 10 Ninth Circuit. Judicial review of final orders of removal is exclusively vested in the courts 11 of appeals, rather than in the district courts, and the procedures for review are generally 12 governed by the Hobbs Administrative Orders Act (codified at 28 U.S.C. §§ 2341-2351). 13 8 U.S.C. § 1252(a)(1) (Supp. 1998). Accordingly, this Court has no basis for jurisdiction 14 over this action, particularly when the matter is pending before the appellate court. 15 Furthermore, Petitioner admits that he has not exhausted this matter, and urges this 16 Court to waive exhaustion. Dkt. No. 1 at 17. As a prudential matter, aliens filing habeas 17 petitions also must exhaust available judicial remedies. Acevedo-Carranza v. Ashcroft, 18 371 F.3d 539, 541 (9th Cir. 2004); Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). 19 Although courts have discretion to waive the prudential exhaustion requirement, that 20 discretion is not unfettered. Id. at 998. Lower courts are not free to address the underlying 21 merits without first determining that the exhaustion requirement has been satisfied or may 22 properly be waived. Id. As to waiver, the concerns are similar to those which govern 23 waiver of an administrative exhaustion requirement, such as that the administrative 24 remedies are inadequate or not efficacious, futility, irreparable injury (presumably from 25 delay), that the administrative proceedings would be void, or in certain circumstances, that 26 the litigant has raised a substantial constitutional question. Id. (citing S.E.C. V. G.C. 1 George Sec, Inc., 637 F.2d 685, 688 (9th Cir. 1981), and Beharry v. Ashcroft, 329 F.3d 51, 2 62 (2d Cir. 2003)). And, because the court of appeals has jurisdiction to determine its 3 jurisdiction in applications for review of orders of removal under 8 U.S.C. § 1227(a)(2) 4 (removal of aliens convicted of certain enumerated crimes), which requires the appellate 5 court to determine whether the alien in fact has been convicted of one of the enumerated 6 crimes, the filing of a petition for review in such cases is not futile; therefore, futility is not 7 a grounds for waiver of the exhaustion rule in that situation. Id. at 999. When judicial 8 remedies have not been exhausted and there is no basis for waiving the exhaustion 9 requirement, the petition must be dismissed. Id. at 1001. The Court finds no basis for 10 granting waiver at this time, particularly since Petitioner may seek a remedy by joining the 11 class action discussed below. Accordingly, this petition must be denied for lack of 12 jurisdiction and failure to exhaust. 13 B. IFP Motion 14 This action is also subject to dismissal for failure to pay the filing fee. On the same 15 day that he filed this action, May 28, 2020, the Clerk mailed a notice to Petitioner that he 16 needed to either pay the filing fee or file a complete application for leave to proceed IFP 17 within twenty-eight days from the date of the notice i.e., no later than June 25, 2020, to 18 avoid dismissal. Dkt. No. 7. Since that time, Petitioner has filed several documents in this 19 matter, Dkt. Nos. 14, 15, 16, 17, demonstrating that he is able to communicate with the 20 Court and yet has failed to respond as directed by the Clerk’s notice. Accordingly, this 21 matter must be dismissed for failure to pay the filing fee. 22 C. Class Action 23 Petitioner seeks release based primarily on the current COVID-19 pandemic, 24 asserting that he is at high risk of illness or death due to his health conditions if he gets 25 infected with the virus. Dkt. No. 1 at 19. There is currently a class action pending under 26 Zepeda Rivas v. Jennings, Case No. 20-cv-02731, in which a temporary restraining order 1 has been issued that identifies a process under which the court will decide whether to 2 || temporarily release people to mitigate the spread of COVID-19. (The Court will order a 3 || copy of the Notice of Class Action to be provided to Petitioner with a copy of this order.) 4 || Petitioner is advised to contact class counsel by dialing the “hotline” number (7654) from 5 || any housing unit phone to provide information about his circumstances to possibly obtain 6 || relief through the class action. 7 8 CONCLUSION 9 For the foregoing reasons, the Court orders as follows: 10 1. The petition for a writ of habeas corpus is DENIED for lack of jurisdiction, 11 || failure to exhaust, and failure to pay the filing fee. 2 2. Petitioner’s motions for temporary restraining order, leave to proceed IFP, 13 || stay of removal, appointment of counsel, and to amend are DENIED as moot. Dkt. Nos. 3, 14 || 4,5, 6, 14, 15. 15 3. The Clerk shall attach a copy of the notice of class action in Zepeda Rivas v. A 16 || Jennings, Case No. 20-cv-02731, with a copy of this notice to Petitioner. 8 17 This order terminates Docket Nos. 3, 4, 5, 6, 14, and 15. 5 18 IT IS SO ORDERED. aso) 19 || Dated: 7/9/2020 EDWARD J. DAVILA 20 United States District Judge 21 22 23 24 25 Order of Dismissal P:\PRO-SE\EJD\HC.20\003558Mendez-Barocio.docx 26 27