Saul Martinez v. Janet Napolitano

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.