Nava v. Ceja

546 F. App'x 629

Opinions

MEMORANDUM

Footnotes

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Edgar Daniel Nava appeals from the denial of his petition for habeas corpus for lack of jurisdiction. For the reasons that follow, we affirm.

On December 29, 2010, an immigration judge ordered Nava removed to Mexico. On April 29, 2011, the Board of Immigration Appeals (BIA) affirmed that decision. On May 5, 2011, Nava filed a petition for review in this court for a stay of the order of removal, which we denied for lack of jurisdiction. On October 25, 2011, an immigration judge set a $20,000 bond, which the BIA later reduced to $7,500. On April 3, 2012, the mandate for the denial of the petition for review issued, which terminated the temporary stay of removal. On April 5, 2012, Nava’s sister attempted to post a bond but was rejected.

On February 17, 2012, while his petition for review was pending, Nava moved before the BIA to reopen proceedings. Nava argued in part that his motion was timely under 8 U.S.C. § 1229a(c)(7)(C)(iv), a provision pertaining to, inter alia, motions to reopen by aliens who have been battered or subjected to extreme cruelty by certain family members. On April 6, 2012, the BIA denied a request for a stay of removal pending its decision on Nava’s motion to reopen. Nava was removed that day. On April 24, 2012, the BIA denied Nava’s motion to reopen, explicitly finding, inter alia, that section 1229a(e)(7)(C)(iv) did not apply. Nava filed an appeal of the BIA’s decision that day. We granted an unopposed motion to remand the case to the BIA on March 8, 2013.

On April 10, 2012, Nava filed a petition for habeas corpus under 28 U.S.C. § 2241, challenging his removal and the denial of his release on bond. On September 14, 2012, the district court denied that petition. This appeal followed.

A petitioner for habeas corpus must be “in custody” in order for the court to have jurisdiction over his petition. Aliens removed before filing a petition do not ordinarily satisfy that requirement. Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.2001). The record is clear that Nava filed his petition after he was removed.¹ In certain “extreme circumstances,” however, a petitioner is constructively considered to still be “in custody.” Rivera v. Ashcroft, 394 F.3d 1129, 1138 (9th Cir.2005). But this is not such a circumstance.

Nava first argues that the exception for “extreme circumstances” applies because he was removed in violation of a stay. See Singh v. Waters, 87 F.3d 346, 349-50 (9th Cir.1996). Nava relies on language in the battered aliens provision stating that “[t]he filing of a motion to reopen under this clause shall only stay the removal of a qualified alien ... pending the final disposition of the motion, including exhaustion of all appeals if the motion establishes that the alien is a qualified alien.” 8 U.S.C. § 1229a(c)(7)(C)(iv) (emphasis added). In holding that section 1229a(c)(7)(C)(iv) did not apply, the BIA clearly found on August 24, 2012 that Nava was not a qualified alien. Although this decision post-dated Nava’s removal, the BIA had previously denied Nava’s motion for a stay of removal because it found “little likelihood that the motion [to reopen] will be granted.” That decision is reasonably construed as holding that Nava’s motion to reopen did not establish that he was a qualified alien. Since Nava was not entitled to a stay of removal, his removal was not in violation of any stay and the circumstances surrounding the removal did not constitute “extreme circumstances.” Nava seeks to forestall this conclusion by arguing that only this court, not the BIA, may determine whether he was a qualified alien. His argument is foreclosed by the language of the statute, which treats status as a qualified alien as a condition precedent to obtaining a stay of removal.

Second, Nava argues that he should have been released on bond on April 5, 2012, the day before his removal. This argument is meritless. Once we denied Nava’s petition for review on April 3, 2012, a 90-day removal period began, during which Nava’s detention was required. See 8 U.S.C. § 1231(a)(l)-(2); Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir.2008).

Finally, Nava argues without factual support that he was removed without notice to his counsel and despite assurances (given after the denial of his bond) that he would have a hearing before an immigration judge. Nava does not explain what difference notice would have made. Since the BIA had implicitly found that Nava was not a qualified alien, he was legally removed. Had Nava filed a petition prior to his removal, this court would have found that his removal was proper because, as noted above, it was not in violation of any stay. At most, Nava would have received a stay of removal until the BIA issued its final decision 18 days later. Nava’s allegations do not rise to the level of extreme circumstances. Nava was not either actually or constructively “in custody.” Accordingly, there is no statutory basis for jurisdiction over his petition.² Finally, Nava’s reference to the Suspension Clause is unsupported and unsupportable.³

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. Both sides brief the question of whether Nava's petition is moot, and both the magistrate judge and district court framed Nava’s petition in those terms. However, such an analysis is unnecessary. Since Nava was never in custody, jurisdiction never existed and the mootness doctrine is inapplicable.

2

. Since Nava was not "in custody” for purposes of habeas jurisdiction, the court need not decide whether 8 U.S.C. §§ 1252(a)(5) and (b)(9) independently preclude habeas jurisdiction.

3

. Nava's opposed motion to take judicial notice is denied.