Yuli Velarde-Flores v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2019
• Docket: 18-15278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YULI MARISELA VELARDE-FLORES; et No. 18-15278 al., D.C. No. Petitioners-Appellants, 2:18-cv-00031-DJH-BSB

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General; et al.,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted February 5, 2019** Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

This appeal arises out of a 28 U.S.C. § 2241 habeas corpus petition that seeks

to enjoin the removal of petitioners Yuli Velarde-Flores, Ibeth Corral, and Liliana

Reyes Diaz to Mexico. The district court dismissed the petition for lack of subject

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). matter jurisdiction, citing 8 U.S.C. § 1252(g). We have jurisdiction over this appeal

under 28 U.S.C. § 1291, and affirm.

1. Section 1252(g) provides that “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 General to . . . execute removal orders . . . .” 8 U.S.C. § 1252(g).

The statute’s jurisdiction-stripping mandate expressly extends to § 2241 habeas

corpus petitions. Id.

2. Because this petition arises from the government’s decision to execute

valid orders of removal, it facially falls within the statutory jurisdictional bar. The

decision whether to remove aliens subject to valid removal orders who have applied

for U-visas is entirely within the Attorney General’s discretion. See 8 C.F.R.

§ 214.14(c)(1)(ii) (“The filing of a petition for U–1 nonimmigrant status has no

effect on ICE’s authority to execute a final order, although the alien may file a

request for a stay of removal . . . .”); see also Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 485 n.9 (1999) (“Section 1252(g) was directed against a

particular evil: attempts to impose judicial constraints upon prosecutorial

discretion.”). The petitioners do not identify any cognizable liberty interest in

remaining in the country while their applications are pending. Cf. Jimenez v.

Nielsen, 334 F. Supp. 3d 370, 384–85 (D. Mass. 2018) (declining to apply § 1252(g)

2 in case involving alien spouses of United States citizens seeking waivers of

inadmissibility under 8 C.F.R. § 212.7).

3. Although placement on a waitlist for a U-visa can entitle an applicant

to deferred action, 8 C.F.R. § 214.14(d)(2), Reyes was not on the waitlist when the

district court dismissed this action. We express no opinion as to whether her

subsequent placement on the waitlist provides a basis for an application to the Board

of Immigration Appeals to reopen her removal order.

AFFIRMED.