FILED
NOT FOR PUBLICATION OCT 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN DEDIOS GARCIA-HERRERA, No. 13-35435
Petitioner - Appellant, D.C. No. 2:12-cv-01711-RSM
v.
MEMORANDUM*
NATHALIE ASHER, Immigration and
Customs Enforcement Field Office
Director; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted October 6, 2014**
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Juan Dedios Garcia-Herrera appeals the district court’s denial of his habeas
petition for lack of jurisdiction. We note that on September 26, 2014, we ordered
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Garcia-Herrera to file a status report, informing the court of whether he remained
in the United States and of the status of his application for relief under the Deferred
Action for Childhood Arrivals (“DACA”) program. Garcia-Herrera responded on
October 6, informing the court that he was still present in the United States and that
his DACA application had been denied. Because Immigration and Customs
Enforcement’s (“ICE”) refusal to delay his removal pending the adjudication of his
DACA application formed the basis of Garcia-Herrera’s habeas petition, it appears
that this case may be moot. However, we dismiss on the alternate ground of lack
of jurisdiction.
The district court held that two statutory provisions, 8 U.S.C. § 1252(b)(9)
and 8 U.S.C. § 1252(g), deprived it of jurisdiction over Garcia-Herrera’s habeas
petition. The former requires that claimants seek “review of all questions of law
and fact . . . arising from any action taken or proceeding brought to remove an
alien from the United States” through a petition for review in the appropriate court
of appeals. 8 U.S.C. § 1252(b)(9); see also 8 U.S.C. § 1252(a)(5). The latter
expressly bars habeas jurisdiction over “any cause or claim . . . arising from the
decision or action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. §
1252(g) (emphasis added).
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Garcia-Herrera argues that 8 U.S.C. § 1252(b)(9) does not bar his habeas
petition because he is not challenging the merits of the underlying removal order.
Rather, he challenges ICE’s decision not to delay his removal pending the
adjudication of his application for relief under DACA. However, by his own
formulation, this constitutes a challenge to ICE’s decision to execute a removal
order. Therefore, the district court properly dismissed his habeas petition for lack
of jurisdiction under 8 U.S.C. § 1252(g).
DISMISSED.
3