Martinez v. Napolitano
Decision Date | 03 December 2012 |
Docket Number | No. 10–56023.,10–56023. |
Citation | 704 F.3d 620 |
Parties | Saul MARTINEZ, an Individual, Plaintiff–Appellant, v. Janet NAPOLITANO, Secretary of the Department of Homeland Security; Eric H. Holder, Jr., Attorney General of the United States, Defendants–Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Kari E. Hong, Law Offices of Kari E. Hong, Oakland, CA, for Appellant.
Sarah S. Wilson, United States Department of Justice, Washington, D.C., for Appellees.
Appeal from the United States District Court for the Central District of California, Otis D. Wright, District Judge, Presiding. D.C. No. 2:09–cv–07507–ODW–JEM.
Before: BETTY BINNS FLETCHER,*MICHAEL DALY HAWKINS, and MARY H. MURGUIA, Circuit Judges.
Saul Martinez, a citizen of Guatemala, filed an action in the United States District Court for the Central District of California alleging that the Board of Immigration Appeals' (“BIA”) decision to deny his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) was arbitrary and capricious and therefore in violation of the Administrative Procedure Act. The district court dismissed the complaint for lack of jurisdiction. We affirm.
The following facts are taken from Martinez's complaint. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) ( ). In 1992, Martinez filed a false application for asylum and withholding of removal based on his alleged political opinion. An asylum officer denied this application. In 1996, at a merits hearing before an Immigration Judge (“IJ”), Martinez admitted that the initial application was false, but submitted a new application for asylum and withholding of removal based on his sexual orientation. The IJ found that Martinez lacked credibility due to his initial false application and denied the second application. The BIA affirmed. In 2003, this Court granted Martinez's petition for review because the BIA failed to explain a legitimate and cogent basis for the adverse credibility finding. Martinez v. INS, 72 Fed.Appx. 564 (9th Cir.2003). On remand, the BIA again affirmed the IJ, but gave a more detailed explanation of its reasoning. The BIA also declined to reopen Martinez's case based on new CAT arguments because the Board determined that Martinez had failed to establish that he would be tortured if he was returned to Guatemala. Martinez petitioned this Court for a second time but was unsuccessful and his petition was denied on March 3, 2009. Martinez v. Holder, 557 F.3d 1059 (9th Cir.2009).
Martinez then filed this complaint in October 2009, alleging that the BIA treated Martinez differently than similarly situated individuals that had filed false asylum applications. According to the complaint, this was an arbitrary and capricious agency action in violation of the Administrative Procedure Act. 5 U.S.C. §§ 701–706. The complaint asserts three claims: (1) an order of mandamus compelling a full and fair hearing to adjudicate his withholding and CAT claims, (2) violation of the APA based on the denial of his withholding and CAT claims based on arbitrary, capricious, and ultra vires criteria, and (3) violation of the APA based on the failure to give Martinez a full and fair hearing to adjudicate his asylum claim.
The government moved to dismiss the complaint for a lack of jurisdiction. The district court granted the motion.
We review de novo a district court's decision to dismiss a case for lack of subject matter jurisdiction. Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir.2006).
The REAL ID Act of 2005 amended the Immigration and Nationality Act (“INA”) to clarify the scope of the jurisdiction stripping provisions of the INA. Singh v. Gonzales, 499 F.3d 969, 975–78 (9th Cir.2007) ( ). The INA contains a provision entitled “Exclusive means of review,” which reads, in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section.
8 U.S.C. § 1252(a)(5) (emphasis added). The language of the statute is clear. The exclusive means to challenge an order of removal is the petition for review process.
The INA also contains a “zipper clause” that consolidates all “questions of law and fact ... arising from any action taken or proceeding brought to remove an alien” into a petition for review. 8 U.S.C. § 1252(b)(9); Singh v. Gonzales, 499 F.3d at 976 ( )(quoting H.R.Rep. No. 109–13, at 173 (2005), 2005 U.S.C.C.A.N. 240, 298 (Conf. Rep.)) (internal quotation mark omitted).
This statutory scheme was designed to “limit all aliens to one bite of the apple with regard to challenging an order of removal.” Id. at 976 (quoting Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005)). Martinez had his bite of the apple, twice receiving a review of his removal order by this Court. See Martinez v. INS, 72 Fed.Appx. 564 (9th Cir.2003); Martinez v. Holder, 557 F.3d 1059 (9th Cir.2009).
The statute, by its plain language, applies only to “judicial review of an order of removal” and does not eliminate the ability of a court to review claims that are “independent of challenges to removal orders.” Singh v. Gonzales, 499 F.3d at 978 (quoting H.R. Rep. No. 109–13, at 175, 2005 U.S.C.C.A.N. 240 at 300). Despite Martinez's efforts to characterize his complaint as asserting “independent” claims, it is simply another attempt to obtain judicial review of his removal order and the district court lacked jurisdiction.1
We join the Second and Seventh Circuits in holding that 8 U.S.C. § 1252(a)(5) prohibits Administrative Procedure Act claims that indirectly challenge a removal order. See Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir.2011) ( ); Estrada v. Holder, 604 F.3d 402, 408 (7th Cir.2010).
As the Second Circuit noted, the distinction between an independent claim and indirect challenge “will turn on the substance of the relief that a plaintiff is seeking.” Delgado, 643 F.3d at 55;accord Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir.2011) ( ); see also Singh v. Gonzales, 499 F.3d at 979 ( ). When a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is “inextricably linked” to the order of removal, it is prohibited by section 1252(a)(5). See Morales–Izquierdo v. DHS, 600 F.3d 1076, 1082–83 (9th Cir.2010) ( ); see also Estrada, 604 F.3d at 408 ( ).
Here, Martinez challenges the procedure and substance of the BIA's determination that he was ineligible for asylum, withholding of removal, and relief under the CAT. This determination, specifically the BIA's rejection of Martinez's arguments on these claims, was the basis of its removal order. If Martinez had prevailed on any one of them, the BIA would not have affirmed the removal order. See Morales–Izquierdo, 600 F.3d at 1082 ( ).
Unlike the petitioner in Singh v. Gonzales, who was allegedly denied the ability to petition this Court in the first instance because of ineffective assistance of counsel, 499 F.3d at 979, Martinez had his day in court and an opportunity to argue “all questions of law and fact” arising from his removal proceedings. Morales–Izquierdo, 600 F.3d at 1082 (quoting 8 U.S.C. § 1252(b)(9)); see also Singh v. Holder, 638 F.3d at 1211 (...
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