Opinion
03 CV 1509 (JG)
February 17, 2004
MEMORANDUM AND ORDER
Petitioner Alexis Milton Edwards seeks a writ of habeas corpus on the ground that he is a "national of the United States" under 8 U.S.C. § 1101(a)(22). Respondent argues, inter alia, that the petition should be dismissed on the ground that under 8 U.S.C. § 1252(b)(5), nationality claims must be reviewed in the first instance in the Courts of Appeals. I agree. This Court does not have jurisdiction over Edwards's claim that he is a United States citizen. Section 242(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(5), vests jurisdiction over nationality claims in the courts of appeals. Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (affirming district court's dismissal of petitioner's citizenship claim for lack of jurisdiction on the ground that such claims must be brought in the court of appeals); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir. 2001) (affirming district court's transfer to circuit court of petitioner's citizenship claim);Alvarez-Garcia v. INS. 234 F. Supp.2d 283, 289-290 (S.D.N.Y. 2002). But see Lee v. Ashcroft, No. 01 CV 0997, 2003 WL 21310247. at *5-6 (E.D.N.Y. May 27, 2003) (holding that district courts retain habeas corpus jurisdiction over citizenship claims); cf. Liu v. INS 293 F.3d 36, 40 (2d Cir. 2002) (extending INS. v. St. Cyt, 533 U.S. 289 (2001), to noncriminal aliens because "St, Cyr. held as a matter of statutory construction that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA" (quotation marks omitted)). "The provision channel[ing] nationality petitions . . . to the Courts of Appeals . . . does not remove an avenue of relief, or leave any class of petitioners without the ability to challenge the legality of their confinenicut, because it provides a forum for all petitioners raising nationality claims."Marquez-Almanzar v. Ashcroft, No. 03 Civ. 1601, 2003 WL 21283418, at *5 (S.D.N.Y. June 3, 2003) (citing Taniguchi, 303 F.3d at 955).
In § 1252, entitled "Judicial review of orders of removal," subsection (b)(5) provides:
(5) Treatment of nationality claims
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
(B) Transfer if issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28.
(C) Limitation on determination
The petitioner may have such nationality claim decided only as provided in this paragraph. 8 U.S.C. § 1252(b)(5).
Normally, the appropriate step would be to transfer the case to the Second Circuit pursuant to 28 U.S.C. § 1631. See, e.g. Metelus v. Ashcroft, No. 02 CV 6382, 2003 WL 21057302, at *2 (E.D.N.Y. May 7, 2003) (transferring a nationality claim brought in a petition for a writ of habeas corpus to the court of appeals); Hussein v. Ashcroft, No. 01-CV-1239, 2002 WL 21027604, at *2 (E.D.N.Y. Sept. 12, 2002) ("Where a petitioner improperly brigs [a citizenship] claim in the district court, the appropriate procedure is to transfer the claim to the court in which the action or appeal could have been brought at the time it was filed or noticed," 28 U.S.C. § 1631; see also Franchi v. Manbeck, 947 F.2d 631, 634 (2d Cir. 1991). Under 8 U.S.C. § 1252(b)(1), a petitioner must seek review in the court of appeals within 30 days from the date of the final order of removal. See also Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir. 2001) (dismissing as untimely a petition for review filed one day late). Here, the Board of Immigration Appeals issued Edwarde his final administrative removal order on November 30, 2001. See Decl. of Steven J. Kim ¶ 13 Ex. K (sept. 13, 2002), Edwards v. INS, No. 02-CV-3309, 2003 U.S. Dist. LEXIS 5473 (E.D.N.Y. Mar., 28, 2003). Edwards's instant petition, however, was not filed until November 4, 2002 (it was dated October 13, 2002), well after the 30-day time limit. Transfer is therefore inappropriate under § 1631. See Taniguchi v. Schultz, 303 F.3d 950, 956 (9th Cir. 2002) (declining to transfer a habeas petition after the district court dismissed a nationality claim because a petition for review in the court of appeals would have been untimely as of the date the habeas petition was filed).
For the foregoing reasons, Edwards's petition is dismissed.