Rafaelano v. Wilson, 05-35025.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation471 F.3d 1091
Docket NumberNo. 05-35025.,05-35025.
PartiesMaria RAFAELANO, Petitioner-Appellant, v. Aaron G. WILSON, District Director of Bureau of Immigration and Customs Enforcement; Tom Ridge, Secretary of Department of Homeland Security; Alberto R. Gonzales, Attorney General, Respondents-Appellees.
Decision Date20 December 2006
471 F.3d 1091
Maria RAFAELANO, Petitioner-Appellant,
Aaron G. WILSON, District Director of Bureau of Immigration and Customs Enforcement; Tom Ridge, Secretary of Department of Homeland Security; Alberto R. Gonzales, Attorney General, Respondents-Appellees.
No. 05-35025.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted January 23, 2006.
Filed December 20, 2006.

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, WA, for the petitioner-appellant.

Page 1092

John McKay, United States Attorney, Christopher L. Pickrell, Assistant United States Attorney (argued), Seattle, WA, for the respondents-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, Chief District Judge, Presiding. D.C. No. CV-03-02647-RSL.

Before JOHNNIE B. RAWLINSON and RICHARD R. CLIFTON, Circuit Judges, and CONSUELO B. MARSHALL,* District Judge.

Opinion by Judge CLIFTON; Dissent by Judge RAWLINSON.

CLIFTON, Circuit Judge.

When Congress passed the REAL ID Act of 2005, it provided that the Act's provisions would be effective immediately and would apply retroactively to cases then pending in the courts. Among the provisions made immediately applicable was the elimination of district court habeas corpus jurisdiction under 28 U.S.C. § 2241 for claims by aliens seeking to avoid deportation or removal from the United States.1 Review of such orders was placed exclusively in the courts of appeals, by way of petitions for review. Our court has concluded that habeas petitions on appeal from district court decisions that were pending before us when the REAL ID Act was enacted would be treated as timely-filed petitions for review from the BIA. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir.2005).

This case presents a variation of that situation. Petitioner Maria Rafaelano alleges that the government is seeking to expel her from the United States without a valid order of deportation. She acknowledges that an immigration judge ("IJ") granted her voluntary departure in 1995 by means of an order that stated that if she did not voluntarily depart from the United States within the following year, she was ordered to be deported (the "1995 Order"). She contends, however, that the 1995 Order never converted into a final order of deportation because she did depart from the United States within the one-year time period, albeit not for very long. The Board of Immigration Appeals ("BIA") has never reviewed her case, because neither Rafaelano nor the government appealed the 1995 Order to the BIA. She presented her current claim to the district court in a habeas petition, which the district court denied, and she then appealed to this court.

Following Alvarez-Barajas, we treat that appeal as if it were a petition for review timely filed directly in this court. Because the district court's habeas jurisdiction was eliminated by the REAL ID Act, we are precluded from relying upon the record developed by the district court. As a result, we have no record from which we can determine whether the 1995 Order did convert into a deportation order. That

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appears, in any event, to be a factual decision properly assigned to the executive agency in the first instance. Thus, we grant the petition for review and transfer the matter to the agency for further proceedings.

I. Background

Rafaelano, a citizen and native of El Salvador, entered the United States in 1988. In May 1990, she was arrested by the Border Patrol and was granted administrative voluntary departure, which required her to leave the United States before June 9, 1990. It is not clear whether or not she did. In July 1992, Rafaelano was detected in the United States a second time. She was again granted administrative voluntary departure, this time requiring that she depart by August 5, 1992. Again, we do not know whether Rafaelano left during that time period. If she did, however, she did not remain outside of the United States for long.

Also in July 1992, Rafaelano married Eliseo Hercules, then a U.S. lawful permanent resident. Hercules filed an I-130 Petition for Alien Relative on Rafaelano's behalf in September 1993. The petition was approved later that year. The couple now has three minor children, all of whom are U.S. citizens.

In June 1995, after the vehicle in which she was traveling was stopped for a traffic violation, Rafaelano was again detected in this country and placed in deportation proceedings. She was charged with entering the United States without inspection. After a hearing, the IJ entered the 1995 Order on September 21, 1995, granting Rafaelano voluntary departure in lieu of deportation, permitting her to depart on her own within one year, or by September 21, 1996. It also provided that if she failed to depart by that date, the right to depart voluntarily would be withdrawn and instead an order of deportation would automatically become effective.2 Neither Rafaelano nor the government sought BIA review of the 1995 Order.

The parties dispute whether Rafaelano actually departed the United States during this one-year period. Rafaelano maintains that she left several times, at least once in early 1996, on brief social and shopping trips to Canada. Since she allegedly departed the United States, albeit only for a brief time, Rafaelano argues that the departure requirement was fulfilled and therefore the 1995 Order did not convert into a deportation order. The government contends, however, that Rafaelano did not depart during the relevant period, so a final order of deportation against her became effective in September 1996 and remains outstanding.

In 1998, Rafaelano's husband became a U.S. citizen. Three years later, Rafaelano filed an I-485 adjustment of status application based on her husband's citizenship status. In March 2003, Rafaelano attended an interview before an immigration officer regarding her I-485 application. While Rafaelano alleges that she has never

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received a decision on her I-485 application, the government contends that the application was denied.

In August 2003, the Department of Homeland Security ("DHS")3 issued and served upon Rafaelano a "bag and baggage" departure letter4 and warrant of deportation. These documents, issued pursuant to the 1995 Order, directed Rafaelano to report on a specified date for immediate departure to El Salvador. The notice also precluded further administrative relief, stating that "review of your file indicates there is no administrative relief which may be extended to you, and it now incumbent upon this Service to enforce your departure from the United States."

Rafaelano reported as directed, but before doing so, she filed in district court a petition for habeas corpus under 28 U.S.C. § 2241 contesting the departure order. In her habeas petition, Rafaelano argued, among other things, that because she had departed the United States prior to September 21, 1996, the portion of the 1995 Order providing for deportation did not become effective and therefore could not be enforced against her. The district court granted Rafaelano a stay of deportation pending further proceedings, and she was released from DHS custody.

Soon thereafter, a magistrate judge conducted an evidentiary hearing on the arguments raised in the habeas petition and issued proposed findings of fact and conclusions of law, which were subsequently adopted by the district court. The court dismissed Rafaelano's petition, holding that Rafaelano did not depart the United States prior to September 21, 1996, and was therefore subject to an effective order of deportation. Rafaelano then appealed to this court.

II. Discussion

This court reviews de novo questions of law, including due process challenges to immigration decisions and statutory interpretation questions. Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 786 (9th Cir.2004); Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003).

A. Jurisdiction

This case arrived in our court on appeal from the district court's denial of the habeas petition in December 2004. The jurisdictional landscape has changed significantly since that time, however.

Specifically, while this case was pending before our court, Congress enacted the REAL ID Act of 2005. Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). The Act intended to "streamline what Congress saw as uncertain and piecemeal review of orders of deportation, divided between the district courts (habeas corpus) and the

Page 1095

courts of appeals (petitions for review)" by effectively "limit[ing] all aliens to one bite at the apple with regard to challenging an order of deportation." Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005). This goal was accomplished by, among other statutory changes, granting courts of appeals exclusive jurisdiction to review challenges to deportation orders:

Notwithstanding any other provision of law . . . 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. . . .

8 U.S.C. § 1252(a)(5) (enacted by REAL ID Act § 106(a)(1)(B)) (emphasis added). The Act eliminated the role of the district courts by eliminating habeas jurisdiction over such orders:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or...

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