Rivas–Melendrez v. Napolitano

• Decision Date: 01 August 2012
• Docket Number: No. 11–2246.,11–2246.
• Citation: 689 F.3d 732
• Parties: Hilario RIVAS–MELENDREZ, Petitioner–Appellant, v. Janet A. NAPOLITANO, et al., Respondents–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

689 F.3d 732

Hilario RIVAS–MELENDREZ, Petitioner–Appellant,

v.Janet A. NAPOLITANO, et al., Respondents–Appellees.

No. 11–2246.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 24, 2011.

Decided Aug. 1, 2012.

Shannon M. Shepherd (argued), Attorney, Immigration Attorneys, LLP, Chicago, IL, for Petitioner–Appellant.

Craig A. Defoe (argued), Attorney, Department of Justice, Civil Division, Washington, DC, Craig A. Oswald, Attorney, Office of the United States Attorney, Chicago, IL, for Respondents–Appellees.

Before SYKES and TINDER, Circuit Judges, and DeGUILIO, District Judge.^*

SYKES, Circuit Judge.

Hilario Rivas–Melendrez (“Rivas”) is a native and citizen of Mexico who entered the United States in 1970 as a lawful permanent resident. On November 9, 2009, the Department of Homeland Security (“DHS”) charged Rivas with removability because of a 1980 conviction for statutory rape. At his hearing before an immigration judge (“IJ”), Rivas acknowledged the conviction but argued that it did not constitute an aggravated felony and that he was therefore not removable. The IJ rejected this argument and, after finding that Rivas had failed to timely file for a discretionary waiver of inadmissibility, ordered Rivas removed to Mexico. The IJ rejected Rivas's subsequent motion to reopen and found that Rivas was not eligible for a waiver of inadmissibility. On August 17, 2010, Rivas was removed to Mexico.

Two months later Rivas filed a petition for a writ of habeas corpus in the Northern District of Illinois pursuant to 28 U.S.C. § 2241. Rivas argued that he was wrongfully removed because the removal order was invalid. The district court dismissed the petition for lack of subject-matter jurisdiction. The court held that Rivas's claim was barred by 8 U.S.C. § 1252(g), which prevents courts from hearing challenges to the execution of removal orders, and also that Rivas was not “in custody” as required under 28 U.S.C. § 2241(c).

We affirm. While Rivas's situation is sympathetic, multiple jurisdictional bars preclude our consideration of his case. The statutory scheme in 8 U.S.C. § 1252(a) makes clear that challenges to removal orders may be heard only by a petition for review in the appropriate court of appeals (here, the Eleventh Circuit) and that no other courts have jurisdiction to review removal orders. Section 1252(g) further provides that “no court shall have jurisdiction to hear” any challenge to the execution of a removal order. Rivas's reliance on § 1252(f)(2) is misplaced because that provision is not an independent grant of jurisdiction. Nor was Rivas “in custody” as is required for jurisdiction under the general habeas statute. We have no doubt that Rivas's separation from his life and family in the United States constitutes a unique hardship, but it does not amount to the sort of unique restraint needed to sustain a habeas petition.

I. Background

Rivas is a native and citizen of Mexico. In 1970 he was admitted into the United States as a lawful permanent resident. In 1980 a California state court convicted him of unlawful sexual intercourse with a female under the age of 18 in violation of section 261.5 of the California Penal Code—that state's “statutory rape” offense. But it was not until 30 years later that federal immigration authorities sought to remove him based on the conviction. In the meantime, Rivas served in the United States Navy; married his wife, who is now a lawful permanent resident as well; fathered four children, all of whom are United States citizens; and established stable residency and steady employment in Chicago.

On November 9, 2009, the DHS issued Rivas a notice to appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground that his 1980 conviction constituted an aggravated felony. Immigration and Customs Enforcement (“ICE”) agents took Rivas into custody in Chicago and transferred him to an ICE facility in Lumpkin, Georgia, for detention and removal proceedings. Rivas's initial hearing took place before an IJ on January 12, 2010, during which Rivas acknowledged the 1980 conviction but denied that it constituted an aggravated felony rendering him removable. The IJ rejected this argument and sustained the charge of removability.¹

Rivas subsequently sought relief from removal in the form of a discretionary waiver of inadmissibility under former 8 U.S.C. § 1182(c). The IJ gave Rivas 30 days to apply for this waiver (until February 11, 2010) and scheduled a second hearing for February 23, 2010. Rivas failed to submit an application by the February 11, 2010 deadline, but he did on that day move to continue the February 23, 2010 hearing, and on February 16, 2010, he filed a late application for relief. For reasons unknown, the IJ did not see this untimely application, and on February 17, 2010—six days before the scheduled hearing—he issued a written decision memorializing his January 12, 2010 finding that Rivas had committed an aggravated felony and ordering Rivas removed to Mexico.

On March 12, 2010, Rivas filed a motion to reopen his case, and on March 17, 2010, he moved to stay his removal. The IJ denied the motion to stay on March 24, 2010, and mistakenly stated that he had already denied the motion to reopen. Rivas then appealed to the Board of Immigration Appeals (“BIA”), and the BIA, noting that the IJ failed to properly consider Rivas's motion to reopen, remanded the case to the IJ for a new decision. On July 28, 2010, the IJ denied Rivas's motion to reopen, finding that his application for relief was untimely and therefore deeming his application waived. The IJ further noted that Rivas was ineligible for a discretionary waiver of inadmissibility because of his 1980 conviction. About three weeks later, on August 17, 2010, ICE officials removed Rivas to Mexico. In that three-week period, Rivas neither moved to stay his removal nor appealed the removal order itself to the BIA.

On October 14, 2010, Rivas filed this habeas action under 28 U.S.C. § 2241 in the Northern District of Illinois, arguing that he was wrongfully removed by ICE officials because the removal order was invalid. The district court dismissed this petition for lack of subject-matter jurisdiction based on 8 U.S.C. § 1252(a)(5), which makes review by the appropriate court of appeals the exclusive form of judicial review of a removal order. On November 5, 2010, Rivas moved the district court to reconsider its dismissal under Rule 59(e) of the Federal Rules of Civil Procedure and asked for leave to file an amended petition under Rule 15(a). In this motion he clarified that he was not challenging the removal order itself, but rather the ICE agents' execution of this order. In particular, Rivas argued that he had a 30–day period following the IJ's July 28, 2010 decision to appeal to the BIA and during that time his removal should have been automatically stayed. Therefore, he argued, his removal on August 17, 2010—only three weeks after July 28, 2010, while the appeal clock was still running—was unlawful. Rivas maintained that the court had jurisdiction under 8 U.S.C. § 1252(f)(2) because he could “show[ ] by clear and convincing evidence that the entry or execution of [his removal] order [was] prohibited as a matter of law.”

The district court denied Rivas's motion to reconsider and for leave to amend, once again concluding that multiple jurisdictional bars precluded the court's consideration of the case. First, the court explained that 8 U.S.C. § 1252(g) generally bars all courts from hearing challenges to the execution of removal orders and that § 1252(f)(2) functions only as a limitation on the conditions for granting injunctive relief, not as an independent grant of jurisdiction. Second, the court noted that even aside from the jurisdictional bar in § 1252(g), there was no habeas jurisdiction in the first place because Rivas was not “in custody” under the terms of 28 U.S.C. § 2241(c). Rivas timely appealed.

II. Discussion

We ordinarily review orders denying relief under Rule 59(e) and leave to amend under Rule 15(a) for abuse of discretion. Foster v. DeLuca, 545 F.3d 582, 583 (7th Cir.2008); Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir.2003). But where such motions raise questions of law, our review is de novo. Sosebee v. Astrue, 494 F.3d 583, 589 (7th Cir.2007).

Rivas argues that both the removal order and the ICE agents' execution of that order are legally invalid, and he seeks to be returned to the United States so that he may appeal the IJ's removal order to the BIA. These arguments turn on the procedural adequacy of his removal proceedings under the relevant immigration regulations. We agree with the district court that the habeas petition faces two separate jurisdictional impediments: First, 8 U.S.C. § 1252(g) prevents district courts from reviewing the execution of removal orders; and second, Rivas is not “in custody” under 28 U.S.C. § 2241(c).

A. Judicial Review of Removal Orders, 8 U.S.C. § 1252

The statutory framework established in 8 U.S.C. § 1252 channels and limits the jurisdiction of the federal courts over challenges to an alien's removal order. The general rule is that “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) (emphasis added). The “appropriate court of appeals” is “the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” id. § 1252(b)(2), which in this case would be the Eleventh Circuit because the IJ's proceedings occurred in Georgia.² Neither the Seventh Circuit nor any district court has jurisdiction to hear a challenge to his removal order. These provisions formed the basis for the district court's initial dismissal of Rivas's habeas petition.

Rivas suggests that procedural...