United States v. United States District Court

MEMORANDUM**

The government does not satisfy the extraordinarily high standard for obtaining writ of mandamus, as “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976).

First, the relief the government seeks — transfer of the entire case from the district court to this court — is not a “clear and undisputable” right. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Kerr, 426 U.S. at 403, 96 S.Ct. 2119). Section 106(c) of the REAL ID Act of 2005 provides that if a habeas petition challenging a removal order “is pending in a district court ... the district court shall transfer the case (or the part of the case that challenges the order of removal, deportation, or exclusion) to the court of appeals.” Pub.L. No. 109-13, div. B, § 106(c), 119 Stat. 302, 311 (2005). Because the reinstatement claims were dismissed, the part of the case challenging the removal order is no longer pending in the district court, and the remaining claims deal with Morales’ application for adjustment of status, not the removal order. It’s not clear and undisputed that these claims must be transferred.

Second, there are “other adequate means to attain the relief [the government] desires.” Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (quoting Kerr, 426 U.S. at 403, 96 S.Ct. 2119). To the extent the district court should have transferred the remaining claims — instead of holding them in abeyance — the government suffers no irreparable harm by awaiting normal appellate review of the district court’s rulings.

PETITION DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.