Opinion
04 Civ. 7377 (RCC).
September 16, 2004
MEMORANDUM ORDER
Petitioner Andres Garcia-Izquierdo ("Petitioner"), a resident alien appearing pro se, has filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, claiming that he acquired United States citizenship derivatively by reason of his father's naturalization and that therefore immigration authorities cannot remove him from the United States. For the reasons set forth below, Petitioner's claims are jurisdictionally barred and the petition is therefore
DISMISSED.
I. BACKGROUND
Petitioner has had an Application for Certificate of Citizenship, otherwise known as a Form N-600 ("N-600"), pending in the United States Bureau of Citizenship and Immigration Services ("BCIS") office in the District of New York since January 27, 2004. On February 6, 2004, an Immigration Judge in the Immigration Court of Bradenton, Florida issued a decision that deemed Petitioner removable from the United States and ineligible for any form of relief from removal. The Immigration Judge further found that Petitioner had not established acquisition of derivative citizenship through his father's naturalization. Petitioner appealed this decision to the Board of Immigration Appeals ("BIA"). On July 29, 2004, the BIA issued an order that terminated Petitioner's application for citizenship and dismissed his appeal. According to the order, Petitioner was at some point convicted of an aggravated felony. The BIA agreed with the Immigration Judge's finding that Petitioner had not established acquisition of derivative citizenship, and concluded that Petitioner is not a national of the United States. Petitioner is currently detained by the immigration authorities at Bradenton Detention Facility in Bradenton, Florida, and is awaiting deportation.
II. DISCUSSION
Petitioner's petition was styled as one for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, but Petitioner requests that the Court order (1) that New York immigration authorities immediately review Petitioner's N-600 application and (2) that Petitioner's deportation proceedings be stayed. Granting Petitioner's petition the liberal interpretation that it is due, the petition could be construed as (1) a § 2241 habeas petition; (2) a petition for review of the July 2004 BIA decision; or (3) a petition for mandamus to the New York immigration authorities.See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003) (per curiam) (noting that submissions from pro se litigants should be read liberally and "to raise the strongest arguments they suggest"); Williams v. Kullman, 722 F. 2d 1048, 1050 (2d Cir. 1983) (holding that pro se habeas corpus petitions, like pro se complaints, must be "liberally construed").
A. Petition for Writ of Habeas Corpus
If the Court construes the petition as one for a writ of habeas corpus under § 2241, based on how the petition was styled, the Court lacks jurisdiction. An inmate seeking a writ of habeas corpus must bring the petition against the "custodian," who is the person with day-to-day control over the inmate, and bring the petition in "the district court of the district wherein the restraint complained of is had." 28 U.S.C. § 2241(a); Henderson v. INS, 157 F.3d 106, 122 (2d. Cir. 1998); Kendall v. INS, 261 F. Supp. 2d 296, 299 (S.D.N.Y. 2003). Petitioner is currently detained by the immigration authorities at Bradenton Detention Facility in Bradenton, Florida, not in New York. The Court therefore lacks jurisdiction if the petition is construed as one under § 2241.
B. Petition for Review
If the Court construes the petition as one for review of the BIA's decision, based on the fact that Petitioner has named BIA as a defendant, the Court lacks jurisdiction to decide the petition. The proper avenue for judicial review of Petitioner's citizenship claim — as raised before the BIA — is direct petition for judicial review, filed within 30 days of the BIA's decision, to the United States Court of Appeals for the Eleventh Circuit.See 8 U.S.C. § 1252(b) ("[T]he petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings."). "An alien cannot bring his citizenship claim to a district court in the first instance." Ewers v. INS, No. 03 Civ. 104, 2003 WL 2002763, at *2 (D. Conn. Feb. 28, 2003); see also Duran v. Reno, No. 97 Civ. 3156, 1998 WL 54611, at *3 (S.D.N.Y. Feb. 10, 1998) (holding that the appellate court was the sole forum of review for such a petition claiming citizenship and that the district court lacked jurisdiction). The Court therefore lacks jurisdiction if the petition is construed as one for review of the BIA's decision. Because more than 30 days have passed since July 29, 2004 (the date of the BIA decision), the Court declines to transfer Petitioner's petition for review of the BIA's decision to the United States Court of Appeals for the Eleventh Circuit.
C. Petition for Mandamus
If the Court construes the petition as one for a mandamus to direct immigration authorities to adjudicate his N-600 application, based on the content of the Petition, the Court lacks jurisdiction to decide the petition. A mandamus is a court order, issued pursuant to 28 U.S.C. § 1361, that is directed to a public official to compel performance of some legal duty owed the plaintiff. 28 U.S.C. § 1361. But matters within immigration authorities' discretion are not reviewable under the mandamus statute, which is "intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if defendant owes him a clear non-discretionary duty." Checknan v. McElroy, 313 F.Supp. 270, 274 (S.D.N.Y. 2004); Sadowski v. INS, 107 F.Supp.2d 451, 453 (S.D.N.Y. 2000) (noting that the "decision process in immigration status matters should be left to the discretion of the INS . . . [and] mandamus is not appropriate to these cases"). Petitioner's petition for a writ of mandamus does not allege that he has exhausted all other avenues of relief or that the defendants owe him a clear non-discretionary duty and therefore the Court lacks jurisdiction if the petition is construed as one for a mandamus.
D. Stay
Under the All Writs Act, 28 U.S.C. § 1651, the Court may order that a petitioner's deportation be stayed only when a stay is necessary to preserve the Court's jurisdiction of the case. See United States v. Int'l Bhd. of Teamsters, 266 F.3d 45, 49-50 (2d Cir. 2001). For the aforementioned reasons, the Court lacks jurisdiction and therefore cannot stay Petitioner's deportation.
Deportation will not preclude Petitioner's ability to proceed with his N-600 application. A person residing abroad may apply for a declaration of citizenship by submitting an N-600,see 8 C.F.R. § 341.1, 8 U.S.C. § 1452(a), and a final removal order has no bearing on an alien's ability to apply for a certificate of citizenship, Ewers v. INS, No. 03 Civ. 104, 2003 WL 2002763, at *2 (D. Conn. Feb. 28, 2003) ("An alien is entitled to apply for a certificate of citizenship regardless of a final removal order."). See also Alexander v. INS, No. Civ. 96-147, 1997 WL 97114, at *1 (D. Me. Feb. 27, 1997) (noting that administrative proceedings involved in an N-600 application are "separate and distinct" from deportation proceedings).
III. CONCLUSION
Petitioner's petition and request for a stay of deportation proceedings is DISMISSED. The Clerk of the Court is ordered to close this case.