GARCIA JACOBO v. FEATHER (2019)

MEMORANDUM **

Alejandro Garcia-Jacobo (Garcia) appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2241 and motion to alter, vacate, or set aside his sentence under 28 U.S.C. § 2255. Garcia sought relief from his 2010 and 2012 convictions for illegally re-entering the United States following removal in violation of 8 U.S.C. § 1326(a), arguing that the removal order underlying these convictions is invalid. The district court held that the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), deprives it of jurisdiction to review the validity of a removal order in habeas proceedings and dismissed Garcia’s motion. We review de novo a district court’s determination that it does not have jurisdiction over a habeas corpus petition, Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), and we affirm.

“The REAL ID Act ‘expressly eliminated habeas review over all final orders of removal,’ and provided that a petition for review in the court of appeals is the ‘sole and exclusive means for judicial review of an order of removal.’ ” Singh v. Holder, 638 F.3d 1196, 1210 (9th Cir. 2011) (first quoting Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007); then quoting 8 U.S.C. § 1252(a)(5)) (internal citation omitted). The Act “restor[es] judicial review to its former settled forum prior to 1996 by eliminating suits in district courts and funneling review of removal orders directly to the courts of appeals.” Id. (citation and internal quotation marks omitted). Where a habeas petition or motion directly implicates an order of removal and would require a district court to “review the underlying merits” of the order, the district court lacks jurisdiction over the petition or motion. See id. at 1210–11. On appellate review, we ask whether the habeas petition or motion is “wholly intertwined with the merits” of the removal order. Id. at 1211.

The district court correctly dismissed Garcia’s motion. In order to grant Garcia relief from his illegal re-entry convictions, the district court would have necessarily had to first declare his order of removal invalid. Garcia’s requested relief thus fell outside of the district court’s jurisdiction.

Further, 8 U.S.C. § 1326(d) is not an exception to the district court’s lack of jurisdiction over Garcia’s motion. Section 1326(d) permits an alien “[i]n a criminal proceeding under [§ 1326]” to “challenge the validity of the deportation order” under limited circumstances. 8 U.S.C. § 1326(d). This is a civil habeas proceeding under 28 U.S.C. §§ 2241 and 2255, not a criminal proceeding under § 1326. Thus, whatever exception to the REAL ID Act that § 1326(d) may provide is not available to Garcia.

The judgment of the district court is AFFIRMED.