1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 Neftali Valladares Ortiz, Case No.: 2:20-cv-01483-JAD-EJY

4 Petitioner Order Dismissing and Closing Action 5 v. ECF Nos. 2, 7 6 Chad F. Wolf, et al.,

7 Respondents

8 This action is a counseled petition for writ of habeas corpus under

by a 9 citizen of Guatemala, who was in immigration detention at the Henderson Detention Center 10 awaiting removal when he filed this petition.1 Respondents move to dismiss this petition for lack 11 of subject-matter jurisdiction.2 Because this Court lacks subject-matter jurisdiction over this 12 immigration challenge, I grant the motion to dismiss and deny as moot the petitioner’s motion 13 for stay of deportation. 14 Background 15 Petitioner Neftali Valladares Ortiz alleges in his habeas petition that he is—or was, when 16 he filed the petition3—in immigration detention, facing the prospect of removal based on a 2005 17 final order of removal, while awaiting adjudication of an I-130 Petition for Alien Relative, filed 18 by his United States citizen wife in 2015.4 Around the time the I-130 petition was filed, Ortiz 19 1 See ECF No. 1 at 1–2. 20 2 ECF No. 7. 21 3 On September 9, 2020, respondents filed a notice stating that Ortiz was removed to Guatemala on that date. ECF No. 10. Respondents argue that, on account of Ortiz’s removal, this action is 22 moot and should be dismissed on that ground. See ECF No. 10 at 2–4. I do not reach this issue because I conclude that this Court lacks subject-matter jurisdiction over this action and dismiss it 23 on that basis. 4 See ECF No. 1 at 1–4. 1 sought to reopen the long-concluded removal proceedings, and that request was denied in 2016.5 2 Ortiz did not appeal that decision to the Board of Immigration Appeals or the Ninth Circuit Court 3 of Appeals.6 More recently, Ortiz filed a motion for an administrative stay of removal, but ICE 4 had not ruled on that motion when Ortiz filed his federal habeas petition.7 5 Ortiz alleges that United States Immigration and Customs Enforcement (“ICE”) has not

6 complied with provisions of the Immigration and Nationality Act (“INA”), the Administrative 7 Procedures Act (“APA”) and federal regulations that allow for adjudication of the I-130 petition 8 without him being detained or removed.8 He alleges that his detention and removal violate his 9 right to due process of law under the Fifth Amendment.”9 Ortiz names as respondents Chad 10 Wolf, Secretary of Homeland Security; Sylvester Ortega, Field Office Director for ICE 11 enforcement and removal operations in ICE’s Las Vegas Field Office; Pamela Lauer, 12 Superintendent of the Henderson Detention Center;10 and Joseph Lombardo, Sheriff of Clark 13 County, Nevada.11 Ortiz seeks an order releasing him from custody, and injunctive relief 14 preventing his removal while he seeks waivers of inadmissibility.12 Ortiz asserts that this Court

15 has subject matter jurisdiction over this action under

16 17 5 See

at 4–5. 18 6 See ECF No. 7, p. 2. 19 7 See ECF No. 1, p. 12. 8 See

at 5–6, 9–15. 20 9

. 21 10 Ortiz names this respondent in the caption of his petition but does not mention her in the body of the petition. See

. 22 11 See

23 12 See

at 16–17. 13 See

. 1 Discussion 2 Federal courts are courts of limited jurisdiction with the power to hear cases only when 3 authorized by the Constitution and statute.14 “Dismissal for lack of subject matter jurisdiction is 4 appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to 5 establish subject matter jurisdiction.”15 When subject matter jurisdiction is challenged, the

6 burden of establishing jurisdiction is on the party invoking the court’s jurisdiction.16 The court 7 presumes lack of subject-matter jurisdiction until the plaintiff establishes that it exists.17 8 Respondents’ motion to dismiss is based on

(g), which limits the 9 judiciary’s power to hear immigration matters: 10 Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 11 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear 12 any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence 13 proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 14

15 Additionally,

(a)(5) and (b)(9) limit judicial review of removal orders to appeals 16 to the court of appeals following completion of established administrative process, and these 17 provisions expressly preclude habeas jurisdiction over challenges to removal orders. Section 18 (b)(9) provides: 19 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory 20 provisions, arising from any action taken or proceeding brought to

21 14 Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). 22 15 In re Dynamic Random Access Memory (DRAM) Antitrust Litig.,

, 984–85 (9th Cir. 2008). 23 16 See

17 Kokkonen,

. 1 remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this 2 section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 3 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or 4 nonstatutory), to review such an order or such questions of law or fact.'8 5 “[W]hen a claim by an alien, however it is framed, challenges the procedure and substance of an 7|| agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by gil section 1252(a)(5).”! 9 It is plain that Ortiz seeks to challenge the enforcement of a removal order, or suspend its 10|| enforcement,”° and sections 1252(a)(5), (b)(9) and (g) apply and expressly preclude this Court exercising subject-matter jurisdiction over this case. 12 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss [ECF No. 7] is 13| GRANTED. This action is DISMISSED. The Clerk of the Court is directed to ENTER 14| JUDGMENT ACCORDINGLY and CLOSE THIS CASE. 15 IT IS FURTHER ORDERED that Petitioner’s Motion for Stay of Deportation [ECF No. 16|| 2] is DENIED as moot. 17 Dated: October 6, 2020 Y , 18 LD RES U.S. District Sudg¢ Jennitef A, Dorsey 19 20 21 7 18 See also

(a)(5) (same). 19 L.E.F.M. y. Lynch,

(9th Cir. 2016) (quoting Martinez v. Napolitano, 704 23]| F.3d 620, 623 (9th Cir. 2012)). °0 See ECF No. 8 (petitioner’s arguments to the contrary).