Martinez v. Napolitano

8 U.S.C. § 1252(a)(5) prohibits Administrative Procedure Act claims that indirectly challenge the removal of an alien since the petition for review process is the exclusive means to challenge an order of removal.

Plaintiff Saul Martinez, a citizen of Guatemala, had previously filed petitions for review before the Ninth Circuit seeking to overturn the agency's decision for removal, but was denied the relief sought. He then attempted to bring an independent claim in the district court under the theory that when the agency denied his petition for asylum it was an arbitrary and capricious action in violation of the Administrative Procedure Act (“APA”). The district court dismissed his complaint for lack of subject matter jurisdiction. The Ninth Circuit agreed and joined the Second and Seventh Circuits in holding that 8 U.S.C. § 1252(a)(5) prohibits APA claims that indirectly challenge a removal order. The statute explicitly states that, except as otherwise provided, “the court of appeals…shall be the sole and exclusive means for judicial review….” The Court agreed with the Second Circuit which noted the distinction between an independent claim and an indirect challenge turns on the substance of the relief. Therefore, Plaintiff could not simply “repackage” his claim, which was previously denied through the proper process, under a new action and claim the agency’s decision was arbitrary and capricious while seeking the same relief as a challenge of removal. AFFIRMED.