Ricardo Lopez-Marroquin v. William Barr

                                FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          APR 9 2020
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RICARDO A. LOPEZ-MARROQUIN,                      No.    18-72922
AKA Ricardo Lopez,
                                                 Agency No. A044-286-222
                Petitioner,

 v.                                              ORDER

WILLIAM P. BARR, Attorney General,

                Respondent.

Before: CALLAHAN and NGUYEN, Circuit Judges, and KANE,* District Judge.

      Because district courts retain jurisdiction under 

28 U.S.C. § 2241

 to consider

habeas challenges to immigration detention that are sufficiently independent of the

merits of the removal order, Singh v. Holder, 

638 F.3d 1196

, 1211–12 (9th Cir.

2011), we construe Lopez-Marroquin’s emergency motion to remand pursuant to

the All Writs Act as a petition for a writ of habeas corpus, and we transfer it to the

Southern District of California. See 

28 U.S.C. § 2241

(b) (a circuit court may

“transfer the application [for a writ of habeas corpus] for hearing and

determination to the district court having jurisdiction to entertain it”); Rumsfeld v.



      *
            The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
Padilla, 

542 U.S. 426, 443

 (2004) (“The plain language of the habeas statute . . .

confirms the general rule that for core habeas petitions challenging present

physical confinement, jurisdiction lies in only one district: the district of

confinement.”). We therefore do not reach Lopez-Marroquin’s argument that this

court can order his release under the All Writs Act, 

28 U.S.C. § 1651

.

      The Clerk will transfer the motion, opposition, and reply (docket nos. 45, 48,

and 49) to the United States District Court for the Southern District of California,

and will serve this order on the district court. We urge the district court to address

this matter expeditiously.

      The panel retains jurisdiction in this case, and Lopez-Marroquin’s petition

for review remains on the June 3, 2020 Pasadena, California calendar.




                                           2
                                                                          FILED
                                                                           APR 9 2020
CALLAHAN, Circuit Judge, dissenting:
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
      Citing generalized concerns over COVID-19, and ignoring the availability of

habeas relief, Ricardo Lopez-Marroquin asks us to order his immediate release

from immigration detention under the All Writs Act, 

28 U.S.C. § 1651

(a). The

majority does not reach the issue, but I would hold that the Act does not authorize

us to entertain Lopez’s request. Indeed, granting it would encourage detainees to

exploit the Act in an end-run around our jurisdictional limitations and separation-

of-powers principles.

                                          I.

      The Immigration and Nationality Act cabins our jurisdiction to final orders

of removal. 

8 U.S.C. § 1252

(a)(1); Lolong v. Gonzales, 

484 F.3d 1173, 1176

 (9th

Cir. 2007) (en banc). We are thus barred from considering Lopez’s attack on his

detention as part of his petition for review.1 To hold otherwise would disturb “the

distinction Congress made in the REAL ID Act between those challenges that must

be directed to the court of appeals in a petition for review and those that must be

retained in and decided by the district court [in a habeas petition].” Singh v.

Holder, 

638 F.3d 1196, 1211

 (9th Cir. 2011) (quotations, alterations, and citation


1
       See Aguilar-Ramos v. Holder, 

594 F.3d 701

, 704 n.3 (9th Cir. 2010) (“[W]e
are not convinced that we have authority to sua sponte release [the petitioner] on
bail or to order a bond hearing in a petition for review.”).
omitted); see also Owen Equip. & Erection Co. v. Kroger, 

437 U.S. 365, 374

(1978) (“The limits upon federal jurisdiction, whether imposed by the Constitution

or by Congress, must be neither disregarded nor evaded.”).

      The All Writs Act does not give Lopez an opening to skirt these constraints.

To the contrary, it only allows federal courts to “issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and

principles of law.” 

28 U.S.C. § 1651

(a) (emphasis added). As this language

makes clear, the Act confines courts “to issuing process ‘in aid of’ [their] existing

statutory jurisdiction; the Act does not enlarge that jurisdiction.” Clinton v.

Goldsmith, 

526 U.S. 529, 534-35

 (1999) (emphasis added); see also Jackson v.

Vasquez, 

1 F.3d 885, 889

 (9th Cir. 1993) (“An order is not authorized under the

Act unless it is designed to preserve jurisdiction that the court has acquired from

some other independent source in law.”). Hence, I would deny the motion for the

simple reason that we lack jurisdiction to entertain it.

                                          II.

      In any event, relief under the All Writs Act is also inappropriate when the

moving party has an adequate alternative remedy, Clinton, 

526 U.S. at 537-38

,

which Lopez has here. This court has repeatedly stressed that the proper avenue

for challenging an alien’s detention is through a habeas petition filed under 

28 U.S.C. § 2241

. See, e.g., Singh, 

638 F.3d at 1211

 (re-iterating the “general rule”


                                           2
that “aliens may continue to bring collateral legal challenges to the Attorney

General’s detention authority through a petition for habeas corpus” (quotations,

alterations, and citation omitted)). Lopez should have pursued—and may still

pursue—habeas relief. That he failed to do so does not now entitle him to resort to

the All Writs Act in this court.

      Lopez argues that he is not limited to seeking relief under 

28 U.S.C. § 2241

,

but he cites no authority for this proposition. That is unsurprising; we have

previously held that the All Writs Act does not serve as a substitute for habeas corpus

in other contexts. See Matus-Leva v. United States, 

287 F.3d 758, 761

 (9th Cir.

2002) (“Because the more usual remedy of a habeas petition is available, the writ of

error coram nobis is not.”); United States v. Valdez-Pacheco, 

237 F.3d 1077, 1080

(9th Cir. 2001) (rejecting a petition for a writ of audita querela “when that challenge

is cognizable under [

28 U.S.C. § 2255

]”). Lopez further contends that filing a habeas

petition would have been “counter-productive,” given the pandemic, and a poor use

of his counsel’s and the court’s resources. These explanations are unconvincing,

and district courts are, at any rate, better equipped to handle the inherent factual

issues raised in Lopez’s petition.

                                         III.

      I also have serious concerns over Lopez’s attempt to attack the Executive

Branch’s handling of COVID-19 at Otay Mesa and other detention facilities.


                                          3
Lopez is a generic detainee, in that he claims neither to have contracted the virus

nor to suffer from any underlying health issues placing him at greater risk than

anyone else in Government custody. Lopez’s motion, then, is really just the

camel’s nose under the tent. If he’s entitled to relief, then who isn’t? And what

happens after the pandemic subsides? It cannot be that detainees can turn to the

All Writs Act every time they disagree with some aspect of their confinement.

      The Government, moreover, asserts that it has taken and is taking significant

steps to manage the pandemic. Among other things, it states that it has

implemented protocols for identifying and isolating cases of the virus and for

providing detainees with necessary medical care. Lopez characterizes these

efforts as inadequate, but why should we decide—without deference, no less—the

level of risk acceptable in detention facilities? Furthermore, why should Lopez be

released rather than, say, transferred? We are not epidemiologists and have no

expertise managing either pandemics or detention facilities. It should go without

saying that the Executive Branch is the more appropriate body to decide these and

other such questions. Cf. Turner v. Safley, 

482 U.S. 78, 85

 (1987) (“Prison

administration is . . . a task that has been committed to the responsibility of [the

executive and legislative] branches, and separation of powers concerns counsel a

policy of judicial restraint.”). But Lopez would have us rely on generalized




                                           4
speculation to second-guess the Executive Branch. We should countenance neither

this motion nor the flood of similar motions sure to follow.

                                          IV.

      Perhaps sensing that the law cuts against him, Lopez suggests for the first

time in his reply brief that this court construe his motion as a habeas petition and

transfer it to the district court. The majority grants this request, which, of course, it

has the authority to do. 2 See 

28 U.S.C. § 2241

(b). Yet Lopez should have himself

pursued habeas relief in the first place rather than burdening this court with

meritless arguments advocating for an unprecedented and improper use of the All

Writs Act. I therefore dissent.




2
      I agree with the majority that we will retain jurisdiction over Lopez’s case.
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