United States v. 2020-04-09 | 18-72922 | RICARDO LOPEZ-MARROQUIN V. WILLIAM BARR | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICARDO A. LOPEZ-MARROQUIN,
AKA Ricardo Lopez,
Petitioner,

v.

WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-72922

Agency No.
A044-286-222

ORDER

Filed April 9, 2020

Before: Consuelo M. Callahan, and Jacqueline H. Nguyen,
Circuit Judges, and Yvette Kane,
*
District Judge.

Order;
Dissent by Judge Callahan

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

2 LOPEZ-MARROQUIN V. BARR

SUMMARY
**

Immigration

The panel construed Lopez-Marroquin’s emergency
motion to remand pursuant to the All Writs Act as a petition
for a writ of habeas corpus and transferred the motion to the
United States District Court for the Southern District of
California, observing that 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.

The panel did not reach Lopez-Marroquin’s argument
that this court can order his release under the All Writs Act,
28 U.S.C. § 1651. The panel urged the district court to
address the matter expeditiously and retained jurisdiction
over Lopez-Marroquin’s petition for review, which remains
on the June 2020 calendar.

Dissenting, Judge Callahan wrote that Lopez-Marroquin
cited generalized concerns over COVID-19 and ignored the
availability of habeas relief in asking this court to order his
immediate release from immigration detention. Observing
that granting his request would encourage detainees to
exploit the All Writs Act in an end-run around jurisdictional
limitations and separation-of-powers principles, Judge
Callahan wrote that she would deny the motion and hold that
the Act does not authorize this court to entertain such
requests. Judge Callahan also expressed serious concerns

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

LOPEZ-MARROQUIN V. BARR 3

over Lopez-Marroquin’s attempt to attack the Executive
Branch’s handling of COVID-19 at Otay Mesa and other
detention facilities, and wrote that the court should
countenance neither this motion nor the flood of similar
motions sure to follow.

COUNSEL

Munmeeth Kaur, Troy Elder, Hannah Comstock, and Emily
Chertoff, Immigrant Defenders Law Center, Los Angeles,
California, for Petitioner.

Joseph A. O’Connell, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C., for Respondent.

ORDER
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. 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

4 LOPEZ-MARROQUIN V. BARR

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.

CALLAHAN, Circuit Judge, dissenting:
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

LOPEZ-MARROQUIN V. BARR 5

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 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.

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.”).

6 LOPEZ-MARROQUIN V. BARR

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” 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.

LOPEZ-MARROQUIN V. BARR 7

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. 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 speculation to
second-guess the Executive Branch. We should
countenance neither this motion nor the flood of similar
motions sure to follow.

8 LOPEZ-MARROQUIN V. BARR

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.