Saul Martinez v. Janet Napolitano , 704 F.3d 620 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL MARTINEZ, an Individual, No. 10-56023
Plaintiff - Appellant,
D.C. No.
v. 2:09-cv-07507-
ODW-JEM
JANET NAPOLITANO , Secretary of the
Department of Homeland Security;
ERIC H. HOLDER, JR., Attorney OPINION
General of the United States,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
October 17, 2012–San Francisco, California
Filed December 3, 2012
Before: Betty Binns Fletcher,* Michael Daly Hawkins,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
*
The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth
Circuit Court of Appeals, fully participated in the case and concurred in
the judgment prior to her death.
2 MARTINEZ V . NAPOLITANO
SUMMARY**
Immigration
The panel affirmed the district court’s dismissal for lack
of subject matter jurisdiction of Saul Martinez’s action
alleging that the Board of Immigration Appeals' denial of
asylum and related relief was arbitrary and capricious in
violation of the Administrative Procedure Act (APA).
The panel held that 8 U.S.C. § 1252(a)(5) (specifying that
the petition for review process is the exclusive means to
challenge an order of removal), prohibits APA claims that
indirectly challenge a removal order. The panel wrote that all
claims challenging the procedure and substance of agency
determinations "inextricably linked" to the order of removal
are prohibited by § 1252(a)(5), no matter how the claims are
framed.
COUNSEL
Kari E. Hong, Law Offices of Kari E. Hong, Oakland,
California, for Appellant.
Sarah S. Wilson, United States Department of Justice,
Washington, D.C., for Appellees.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ V . NAPOLITANO 3
OPINION
MURGUIA, Circuit Judge:
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.
I. Background and Procedural History
The following facts are taken from Martinez’s complaint.
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (in
reviewing an order granting a motion to dismiss, we accept
“all factual allegations in the complaint as true”). 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. App’x 564 (9th
Cir. 2003). On remand, the BIA again affirmed the IJ, but
gave a more detailed explanation of its reasoning. The BIA
4 MARTINEZ V . NAPOLITANO
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.
II. Standard of Review
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).
MARTINEZ V . NAPOLITANO 5
III. Discussion
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) (describing
history of jurisdiction to review removal orders and purpose
of REAL ID Act). 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 (zipper clause extends the sole
remedy to “any issue raised in a removal proceeding”)
(quoting H.R. Rep. No. 109-13, at 173 (2005) (Conf. Rep.))
(internal quotation mark omitted).
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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. App’x 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). 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)
(8 U.S.C. § 1252(a)(5) bars a district court from hearing an
APA claim seeking a writ of mandamus ordering the USCIS
to consider the merits of alien’s I-212 application); Estrada
v. Holder, 604 F.3d 402, 408 (7th Cir. 2010).
1
The fact that Martinez is technically subject to an order of
“deportation” and not “removal” is of no consequence. The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 merged
deportation, removal, and exclusion into the single category of “removal.”
United States v. Rodriguez-Ocampo, 664 F.3d 1275, 1277 n.1 (9th Cir.
2011). To avoid unnecessary confusion, we will only use the term
“removal.” Morales-Izquierdo v. DHS, 600 F.3d 1076, 1079 n.2 (9th Cir.
2010).
MARTINEZ V . NAPOLITANO 7
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) (determining difference between permissible
independent claims and prohibited collateral attacks “requires
a case-by-case inquiry”); see also Singh v. Gonzales,
499 F.3d at 979 (ineffective assistance of counsel claim was
an independent challenge because the “only remedy would be
the restarting of the thirty day period for the filing of a
petition for review with this court”). 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) (challenge to an adjustment of status
barred by section 1252(a)(5) because the order of removal
was contingent on the status determination); see also Estrada,
604 F.3d at 408 (district court lacked jurisdiction because if
the alien obtained the relief he sought the “order of removal
entered by the IJ and affirmed by the BIA . . . would
necessarily be flawed”).
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 (a final order of removal includes the
determination that an alien is removable and the decision to
order removal).
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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 (district court lacks jurisdiction to
review same claims that were raised in a petition for review).
The conclusion that Martinez’s APA claims are nothing
more than indirect attacks on his order of removal is
underscored by the fact that the arguments supporting his
claims are of the type that are often presented to this Court on
direct appeals of such orders. See, e.g., Farah v. Ashcroft,
348 F.3d 1153, 1156–57 (9th Cir. 2003) (on petition for
review, explaining the separate analysis for CAT relief
eligibility); Haile v. Holder, 658 F.3d 1122, 1126 n.3 (9th
Cir. 2011) (on petition for review, noting which provisions of
REAL ID do and do not apply retroactively); Zhu v. Mukasey,
537 F.3d 1034, 1029 n.1 (9th Cir. 2008) (on petition for
review, noting that a basis for an adverse credibility finding
must go to the heart of the claim). In fact, every case cited by
Martinez to demonstrate that the BIA erred in evaluating his
claim is an opinion resolving a petition for review.
IV. Conclusion
After previously failing to convince this Court that the
BIA erred, Martinez has repackaged his rejected arguments
(and added a few others) as reasons why the BIA decided his
case in an arbitrary and capricious manner in violation of the
APA. However, none of these arguments survive as
independent claims not inextricably linked to his order of
MARTINEZ V . NAPOLITANO 9
removal. Nor does this action avoid the clear language of
8 U.S.C. § 1252(a)(5), which eliminates jurisdiction over
such claims. Because the substance of the relief that
Martinez is seeking (asylum, withholding of removal, and
CAT) would negate his order of removal, the district court
properly determined that it lacked jurisdiction.
AFFIRMED.