Opinion
No. 3:03-CV-2746-N.
September 14, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Petitioner is a Pakistani citizen who attempted to enter the United States through Chicago's O'Hare International Airport without proper documentation and was detained by immigration authorities on July 27, 2000. ( See Pet. Writ of Habeas Corpus (Pet.) at 3; Withdrawal of Application for Admission, attached as Ex. 1 to Resp. and Mot. Dismiss (Mot. Dismiss).) On August 8, 2000, the relevant immigration authorities interviewed petitioner and found a credible fear of persecution should he be removed to Pakistan. ( See Credible Fear Interview at 4-6, attached as Ex. 2 to Pet.) On August 15, 2000, the immigration authorities issued a Notice to Appear (NTA) which ordered petitioner to appear before an Immigration Judge (IJ) on a date and time to be determined "to show why [he] should not be removed from the United States." ( See NTA, attached as part of Ex. 3 to Pet.)
On August 16, 2000, the Acting District Director ordered petitioner released on immigration parole. ( See INS Dist. Dir. Parole Decision, attached as part of Ex. 2 to Pet.) On August 17, 2000, the immigration authorities released petitioner on temporary parole until February 16, 2001, pursuant to section 212 (d) (5) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182 (d) (5). ( See Form I-94 Arrival Record attached as Ex. 2 to Mot. Dismiss.) Petitioner listed a Chicago address as his address while in the United States. ( Id.) Furthermore, petitioner's immigration proceedings occurred in Chicago, Illinois. (Pet. at 4.)
On July 26, 2001, while still residing in Chicago, petitioner requested asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231 (b) (3). ( See Pet. at 3; Application for Asylum and Withholding of Removal, attached as Ex. 5 to Pet.) On October 25, 2001, the immigration authorities scheduled a hearing in Chicago for April 9, 2002, to consider petitioner's requests. ( See Notice of Hearing in Removal Proceedings, attached as Ex. 4 to Pet.) Due to an alleged illness, petitioner did not appear at the hearing. (Pet. at 5.) Furthermore, although he had retained an Illinois-licensed attorney to represent him in these immigration matters, counsel also did not appear at the hearing. ( Id. at 4-5.) Because petitioner failed to appear for the hearing, an IJ ordered him removed to Pakistan in absentia on April 9, 2002, pursuant to section 240(b) of the INA, codified at 8 U.S.C. § 1229a(b). ( Id. at 5; Decision of the IJ, attached to Pet. as Ex. 9.)
On May 17, 2002, petitioner's Illinois attorney moved to reopen the proceedings and stay the removal order. (Pet. at 6; Mot. to Reopen, attached as Ex. 11 to Pet.) On June 17, 2002, the IJ construed the motion as seeking to "rescind" the removal order, and denied the motion. (Decision of IJ, attached to Pet. as Ex. 12.) Petitioner thereafter terminated his Illinois attorney and retained counsel from Texas. (Pet. at 7.) On September 18, 2002, newly retained counsel appealed the denial to re-open to the Board of Immigration Appeals (BIA) by claiming that petitioner's previous attorney rendered ineffective assistance. ( See Brief for Appellant, attached as Ex. 3 to Mot. Dismiss.) In addition, counsel therein revealed that, although petitioner "resided initially in Chicago, Illinois", he "later moved to Texas" and resides in Lewisville, Texas. ( Id. at 2.) The BIA dismissed the appeal on October 10, 2003. (Pet. at 7; Decision of BIA, attached as Ex. 15 to Pet.)
Petitioner resided in Carrollton, Texas, when he filed the instant action. ( See Pet. at 1.)
On November 10, 2003, petitioner filed the instant "Petition For A Writ of Habeas Corpus and Brief in Support Thereof" naming John Ashcroft, United States Attorney General; Tom Ridge, Department of Homeland Security; and Nuria Prendes, Bureau of Immigration Customs and Enforcement (collectively referred to as the government) as respondents. (Pet. at 1-2.) He claims that the Court has habeas jurisdiction over this action under 28 U.S.C. § 2241, and federal question jurisdiction under 28 U.S.C. § 1331 and the Declaratory Judgment Act, 28 U.S.C. § 2201. ( Id. at 2-3.) He argues that he has a right to a fundamentally fair removal proceeding under the Fifth Amendment to the United States Constitution, and that his Illinois attorney rendered ineffective assistance of counsel which prejudiced him and removed essential fairness from the immigration hearing. ( Id. at 8.) By this action, petitioner seeks to remain at liberty, to stay his deportation pending resolution of this action, and an order directing respondents to reopen his immigration hearing. ( Id. at 14.)
Although petitioner names these individuals as respondents, there is some question as to whether they are the proper respondents in this action. Section 2242 of Title 28 of the United States Code requires an application for writ of habeas corpus to name the petitioner's custodian as respondent. Defendants do not challenge the petition on this ground, however, and the identity of the respondent does not affect the resolution of this action. Accordingly, the Court leaves the respondents as named by petitioner for purposes of this action.
The Court reasonably construes the instant action as challenging petitioner's final order of removal only. Though petitioner appears to also challenge the BIA's denial of his motion to re-open, the Court declines to so construe this action. A petitioner is entitled to a writ of habeas corpus under § 2241 only to remedy his or her restraint of liberty in violation of the constitution, treaties, or laws of the United States. See 28 U.S.C. § 2241 (a). Denial of a motion to reopen is not based upon the United States Constitution or upon any statute. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000) ("There is no statutory provision for reopening; the authority to reopen derives solely from regulations promulgated by the Attorney General."). Determination of a motion to reopen rests within the sound discretion of the immigration authorities. Id. "Although federal courts retain habeas jurisdiction to review statutory and constitutional claims, there is no jurisdiction to review denials of discretionary relief." See Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003). Thus, even were the Court to construe this action as also challenging the BIA denial, the Court would have no habeas jurisdiction over such challenge.
On February 13, 2004, the government filed its response and moved to dismiss this action for lack of jurisdiction and for failure to state a claim upon which the Court can grant relief. ( See Mot. Dismiss at 1-2.) It argues that the Court lacks jurisdiction over this action because section 242(b)(9) of the INA, codified at 8 U.S.C. § 1252(b) (9), requires consolidation of questions for judicial review before the court of appeals in a petition for review, and petitioner skipped such review. ( Id. at 3-11.) It further argues that the Court lacks jurisdiction because this action is foreclosed by the applicable statute of limitations, and that petitioner cannot present his claims to this Court because he has failed to exhaust available remedies. ( Id. at 11-13.) Lastly, it argues that petitioner's claims fail on the merits. ( Id. at 13-29.)
The motion cites 8 U.S.C. § 1252 (a) (9) in the introduction, ( see Mot. Dismiss at 1-2), but the argument relies upon § 1252 (b) (9), ( see id. at 5-7). Moreover, there is no § 1252 (a) (9) in Title 8 of the United States Code.
On March 1, 2004, petitioner filed a response to the government's motion to dismiss opposing dismissal. ( See Pet.'s Resp. Mot. Dismiss at 1, hereinafter referred to as Resp.) On March 22, 2004, the government filed a reply to petitioner's response. ( See Def.'s Reply to Petitioner's Resp. at 1, hereinafter referred to as Reply.)
II. GENERAL JURISDICTION
A. 28 U.S.C. § 1331Petitioner invokes federal question jurisdiction under 28 U.S.C. § 1331. However, § 1331 is a general jurisdictional statute and provides no independent basis for this action. See Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1345 (5th Cir. 1991).
Petitioner also specifically invokes the Declaratory Judgment Act, 28 U.S.C. § 2201, as a basis for jurisdiction. However, "the Declaratory Judgment Act, as a procedural statute, [is also] not an independent basis of federal jurisdiction." Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 447 n. 11 (5th Cir. 2002) (footnote omitted); accord In re B-727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001); Gaar v. Quirk, 86 F.3d 451, 453 (5th Cir. 1996).
III. HABEAS JURISDICTION
To the extent this Court has jurisdiction over the instant action, such jurisdiction arises under 28 U.S.C. § 2241. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, codified at 8 U.S.C. § 1101 et seq., governs federal habeas jurisdiction in cases involving aliens. See Perez v. Reno, 227 F.3d 294, 294 (5th Cir. 2001). IIRIRA's transitional rules govern deportation proceedings that commenced before April 1, 1997, IIRIRA's effective date, and conclude more than thirty days after IIRIRA's passage on September 30, 1996. Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03 (5th Cir. 1999); IIRIRA § 309(c)(11), (4), 110 Stat. 3009-625, -626. IIRIRA's permanent rules govern deportation proceedings that commenced after April 1, 1997. See Perez, 227 F.3d at 294. Because the deportation proceedings against petitioner commenced after April 1, 1997, the permanent rules apply here.
Custody is a necessary pre-requisite to habeas jurisdiction under 28 U.S.C. § 2241. Defendants do not argue that petitioner fails to satisfy the "in custody" requirement of § 2241. ( See Mot. to Dismiss at 2-3 n. 3.) However, the Court notes that petitioner, as the party who has the burden to show that this Court has jurisdiction over this matter, see Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001), has not shown that he is in custody. At the time he filed the instant action, petitioner resided in Carrollton, Texas. ( See Pet. at 1-2.) He submits that "[t]he requirement that the alien be incarcerated has been dispensed with" and that he is "`restrained' in his liberty." ( Id. at 3.) The records before the Court merely show that petitioner is subject to a final order of deportation, and at one point, was placed on temporary immigration parole pending his hearing. According to these records, petitioner's immigration parole expired on February 16, 2001. ( See Form 1-94 Arrival Record, attached to Mot. Dismiss as Ex. 2.) It now appears that petitioner resides in Texas, subject to a final order of removal. A final order of removal standing alone is insufficient to satisfy the "in custody" requirement. See United States ex. rel. Marcello v. District Dir., INS, 634 F.2d 964, 970 (5th Cir. 1981).
Even if petitioner remains subject to immigration parole and is thereby in custody for purposes of § 2241, the record before the Court indicates that such parole was granted by immigration authorities in Chicago, Illinois. Consequently, petitioner's immediate custodian would appear to be the Acting District Director who signed the parole order, or his or her successor. Moreover, petitioner must file his § 2241 petition for writ of habeas corpus in the district where he is "in custody." See Lee v. Wetzel, 244 F.3d 370, 375 n. 5 (5th Cir. 2001); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999). In the absence of evidence that the Chicago Immigration Court transferred parole custody to Texas, it appears that petitioner would be in custody in Illinois — where he was placed on immigration parole.
Parties may not bestow jurisdiction on the court by agreement. Nevertheless, because the Court ultimately finds that it lacks jurisdiction under § 2241 for other reasons, it does not further address these apparent jurisdictional deficiencies.
A. Availability or Existence of Habeas Jurisdiction
The government contends that habeas relief is unavailable because 8 U.S.C. § 1252(b)(9) gave petitioner the opportunity for adequate review by the court of appeals through a petition for review. (Mot. Dismiss at 1-10.) Section 1252(b)(9), entitled "Consolidation of questions for judicial review", provides:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under [§ 1252].
The Supreme Court specifically addressed the issue of whether § 1252(b)(9), as well as §§ 1252(a)(1) and (a)(2)(C), divested the federal district courts of habeas jurisdiction. See INS v. St. Cyr, 533 U.S. 289, 311-14 (2001). In finding that none of these three subsections divested the federal courts of habeas jurisdiction, St. Cyr focused on the meaning of "judicial review" as used in those subsections. Id. at 311-12. It held that "judicial review" meant "full, nonhabeas review." Id. at 312. The Supreme Court also noted that subsection(b)(9) "by its own terms, does not bar habeas jurisdiction over removal orders not subject to judicial review under § 1252(a)(1) — including orders against aliens who are removable by reason of having committed one or more criminal offenses." Id. at 313. It expressly found "that § 1252(b)(9) does not clearly apply to actions brought pursuant to the general habeas statute, and thus cannot repeal that statute either in part or in whole." Id. at 314. Rather, "[s]ubsection (b)(9) simply provides for the consolidation of issues to be brought in petitions for `[j]udicial review,' which . . . is a term historically distinct from habeas." Id. at 313-14.
While recognizing St. Cyr as controlling precedent, the government urges the Court to narrowly construe and limit St. Cyr to its particular facts and thus find that § 1252(b)(9) bars recourse to § 2241 under the facts of this case. ( See Mot. Dismiss at 5-11.) The petitioner in St. Cyr was a criminal alien who could not properly bring his challenge to the final order of removal in a petition for review. Petitioner here is not a criminal alien, but rather an alien who sought admission to the United States without proper documentation but requested asylum under 8 U.S.C. § 1231(b)(3), and who could have properly brought his challenge to the final order of removal in a petition for review. The government basically argues that when a non-criminal alien such as petitioner has recourse to direct review by a court of appeals through a petition for review, § 1252(b)(9) requires that all "questions of law and fact" be considered only through the petition-for-review process. ( See Mot. to Dismiss at 5-11.)
The government relies on the following language in St. Cyr to support its position that the Court should narrowly construe St. Cyr to its facts:
If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the [government's] reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions.533 U.S. at 314. A quick reading of the first sentence seems to support the government's position. However, in the next sentence, the Supreme Court unambiguously reveals its concerns about an unconstitutional suspension of the writ of habeas corpus. Such concerns were clearly the driving force behind the Supreme Court's interpretation of § 1252. That such concerns existed because criminal-aliens have no recourse to direct review through a petition for review filed with the court of appeals does not mandate that St. Cyr's interpretation of § 1252 be limited only to criminal aliens. The quoted language provides no reason to apply St. Cyr's interpretation of § 1252 only to permit habeas petitions by criminal-aliens.
Although the petitioner in St. Cyr had no recourse to the petition-for-review process because of his status as a criminal alien, and such fact weighed significantly in the Supreme Court's analysis, St. Cyr's rationale applies equally to all petitioners without regard to criminal status. The Supreme Court made a clear delineation between "judicial review" as used in IIRIRA and "habeas review" as provided by 28 U.S.C. § 2241. This is consistent with the underlying premise of St. Cyr — meshing the statutory language of 8 U.S.C. § 1252 with the constitutional requirement that the great writ of habeas corpus not be suspended. The government would have this Court interpret the term "judicial review" differently depending upon the status of the petitioner. There is no sound reason to read the same language in the same statute differently for criminal and non-criminal aliens.
St. Cyr, which was decided under the permanent rules of IIRIRA, clearly held that the federal district courts retain "habeas jurisdiction under § 2241" in the aftermath of the 1996 enactments of AEDPA and IIRIRA. See 533 U.S. at 293, 313-14. The Court declines to distinguish St. Cyr on its facts as suggested by the government.
B. Scope of Habeas Jurisdiction
While the government unsuccessfully urges the Court to construe 8 U.S.C. § 1252(b)(9) as divesting the federal district courts of habeas jurisdiction, it also relies upon Santos v. Reno, 228 F.3d 591 (5th Cir. 2000) for finding a lack of jurisdiction in this case. Although such reliance was within the context of the government's argument that 8 U.S.C. § 1252(b)(9) divests the federal district courts of habeas jurisdiction, any argument based upon Santos is actually separate and distinct. The holding in Santos relates to the scope of available habeas jurisdiction rather than its existence. Under St. Cyr, neither IIRIRA nor AEDPA affects the existence or availability of habeas jurisdiction under 28 U.S.C. § 2241. However, "[a]part from acknowledging that `the scope of review on habeas is considerably more limited than on [direct review],' St. Cyr did not discuss precisely what those limits are." Zalawadia v. Ashcroft, 371 F.3d 292, 299 (5th Cir. 2004). Thus, the scope of such jurisdiction must still be considered under the new statutory regime. If petitioner's claims do not fall within the jurisdictional scope of habeas review provided by § 2241, then this Court lacks habeas jurisdiction over the claim notwithstanding the technical availability of habeas review.
Santos has absolutely no relationship to § 1252(b)(9). Santos was decided under the transitional rules of IIRIRA and § 1252(b)(9) became applicable only after the permanent rules of IIRIRA took effect.
A brief review of the scope of habeas jurisdiction as it has historically existed in immigration cases is helpful in determining the current scope of habeas review. The 1961 amendments to the Immigration and Nationality Act (INA) commenced "the original streamlining regime — operative from 1961 to 1996 — under which habeas was available only where direct review was not." Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999) (citing United States ex. re. Marcello v. District Dir. of INS, 634 F.2d 964, 972 (5th Cir. 1981)). Under the pre-1996 statutory scheme, the federal courts could not entertain a petition for writ of habeas corpus which challenged a final order of removal,
Although Requena-Rodriguez speaks in terms of availability, its appears clear that its focus was the scope of habeas review, not the existence or literal availability of such review.
if the validity of the order ha[d] been previously determined in any civil or criminal proceeding, unless the petition presents ground which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order.Santos v. Reno, 228 F.3d 591, 596 n. 8 (5th Cir. 2000) (quoting 8 U.S.C. § 1105a(c)). Under the transitional rules of IIRIRA, the Fifth Circuit Court of Appeals consistently construed § 1105a(c) as limiting the scope of habeas jurisdiction when direct review was available through the filing of a petition for review with the court of appeals. See, e.g., id. at 597; Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir. 2000); Requena-Rodriguez, 190 F.3d at 305.
Although Congress repealed § 1105a(c) with the enactment of IIRIRA, that provision was essentially incorporated into the permanent rules of IIRIRA through 8 U.S.C. § 1252(d)(2). See Pequeno-Martinez v. Trominski, 281 F. Supp. 2d 902, 911 (S.D. Tex. 2003) (noting that "the statutory source of Requena's rule, 8 U.S.C. § 1105a(c), persists in IIRIRA's permanent rules as 8 U.S.C. § 1252(d)(2)"). Unlike its predecessor, the new provision does not specifically mention habeas, Compare § 1105(a)(c) with § 1252(d)(2). Nevertheless, there is no basis not to apply § 1252(d) to habeas petitions. See Pequeno-Martinez, 281 F. Supp. 2d at 911. "[A]lthough § 1252(d) fails to expressly mention habeas corpus or § 2241 . . . its recitation in subsection (2) of the effect that prior judicial proceedings have on the scope of a subsequent court's review seems plainly to contemplate habeas review." Theodoropoulos v. INS, 358 F.3d 162, 171-72 (2d Cir.), cert. filed, ___ S.Ct. ___, (Apr. 12, 2004). In addition, the Fifth Circuit has recently proceeded as though § 1252(d)(2) applies in the habeas context. See Madriz-Alvarado v. Ashcroft, ___ F.3d ___, ___ n. 6, No. 03-20126, 2004 WL 1909138, at *9 n. 6 (5th Cir. Aug. 27, 2004) (dispensing with an argument based on § 1252(d)(2) by noting that it was uncertain whether a previous court had determined the validity of the removal order, rather than holding that § 1252(d)(2) was inapplicable).
Furthermore, application of § 1252(d) in the habeas context is entirely consistent with St. Cyr and the Congressional purpose behind IIRIRA. Unlike the provisions at issue in St. Cyr, § 1252(d) is not limited to "judicial review" of final removal orders. Because the subsection generically refers to "review" rather than specifically to "judicial review" it implies a broader application than the provisions at issue in St. Cyr. It therefore appears that under § 1252(d), a court may review a final order of removal, whether through a petition for review to the appropriate court of appeals or a petition for writ of habeas corpus through § 2241 only if (1) the petitioner has exhausted all available administrative remedies and (2) no other court has decided the validity of the order of removal, unless the second reviewing court finds "that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order."
In view of the similarities between § 1252(d)(2) and the former governing provision, § 1105a(c), the Court finds that the limitations on the scope of habeas review under the transitional rules, as represented by the holdings in Requena-Rodriguez and Santos, remain viable under the permanent rules of IIRIRA. Because Requena-Rodriguez and Santos remain viable precedent under the permanent rules governing the instant case, the Court finds that the scope of available habeas jurisdiction provided for by St. Cyr does not include the claims that petitioner raises in his habeas petition and could have raised in a petition for review to the court of appeals.
St. Cyr does not dictate a different result. As previously noted, it did not alter the scope of available habeas jurisdiction. In addition, St. Cyr found that "under the pre-1996 statutory scheme — and consistent with its common-law antecedents — . . . St. Cyr could have brought his challenge . . . in a habeas corpus petition under 28 U.S.C. § 2241." 533 U.S. at 308. The historical scope of habeas jurisdiction thus encompassed St. Cyr's challenge. However, in the instant case, petitioner could not have brought his challenge in a § 2241 habeas petition under the pre-1996 statutory scheme as interpreted by the Fifth Circuit Court of Appeals because the scope of habeas jurisdiction did not encompass claims that could be brought on direct review. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999). This critical difference between the instant case and St. Cyr affects the ultimate jurisdictional ruling in this case. Whereas in St. Cyr, habeas jurisdiction was both available and the petitioner's challenge fell within the scope of such available jurisdiction, the petitioner's challenge here falls outside the scope of habeas jurisdiction, despite the availability of such jurisdiction under St. Cyr. It is the historical scope of habeas jurisdiction under § 2241 as applied to the particular circumstances which results in different ultimate conclusions with respect to the jurisdictional issues.
Limiting the scope of habeas review under the permanent rules of IIRIRA as was done under the transitional rules by the above cases is also consistent with post- St. Cyr decisions in this district. This Court has found that it lacks jurisdiction under 28 U.S.C. § 2241 when the petitioner could have had his claims considered on direct review by the circuit court. See Lee v. Ashcroft, No. 3:03-CV-0439-N, 2003 WL 21832237, at *2-3 (N.D. Tex. Aug. 5, 2003) (Godbey, J.) (findings and recommendation in which the Court stated: "Because Petitioner had the right to seek judicial review of the final order of removal in the Fifth Circuit, which was unaffected by 8 U.S.C. § 1252 (a) (2) (C), and because exclusive jurisdiction of such review is vested in that Court, the District Court is without jurisdiction to consider his petition for habeas corpus review."), adopted by 2004 WL 86296 (N.D. Tex. Jan. 15, 2004) (citing Rivera-Sanchez, 198 F.3d at 547-48 for the proposition that, [i]f the Court of Appeals had appellate jurisdiction, habeas will not lie"). Two other opinions from this Court have also relied upon such precedent to find a lack of jurisdiction. See Baguma v. Bureau of Immigration Customs Enforcement, No. CIV.A. 1:03-CV-239-C, 2004 WL 1454459, at *2 (N.D. Tex. June 22, 2004); Sanusi v. U.S. Atty. Gen., No. 3:03-CV-0019-L, 2004 WL 213195, at *3 (N.D. Tex. Jan. 28, 2004) (relying on Lee and other cases to support statement that, after St. Cyr, "non-criminal aliens, who have a statutory right to direct judicial review, may not also challenge their removal orders on collateral review in federal district court"), adopted by 2004 WL 739968 (N.D. Tex. Feb. 23, 2004).
In summary, St. Cyr did not address § 1252 (d), and has not invalidated or overruled Fifth Circuit precedent which limits the scope of habeas jurisdiction to claims that could not have been presented to the Fifth Circuit through a petition for review. Until the Supreme Court definitively addresses § 1252 (d), or the Fifth Circuit announces a change of course, the scope of federal habeas jurisdiction does not include consideration of claims which could be brought on direct appeal to the court of appeals in a petition for review. See Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000); Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir. 2000); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999). Because the instant petition presents grounds which could have been presented in a petition for review this Court lacks habeas jurisdiction.
Petitioner argues that, in Flores-Garza v. INS, 328 F.3d 797 (5th Cir. 2003), the Fifth Circuit implicitly rejected the applicability of Santos under the permanent rules of IIRIRA. ( See Resp. at 3-4.) In Flores-Garza, the Fifth Circuit specifically stated that St. Cyr "expressly held that § 1252's jurisdiction-stripping provisions do not deprive the federal courts of jurisdiction to entertain a petition for a writ of habeas corpus." 328 F.3d at 803. However, neither St. Cyr nor Flores-Garza considered § 1252 (d). Furthermore, both the petitioner in St. Cyr and the petitioner in Flores-Garza were criminal aliens who had no recourse to the court of appeals through a petition for review. Thus, St. Cyr mandated a finding that the district court had habeas jurisdiction in Flores-Garza. Furthermore, the Fifth Circuit has recently indicated that Flores-Garza does not dispose of the jurisdictional issue or invalidate Santos. See Madriz-Alvarado v. Ashcroft, ___ F.3d ___, ___, No. 03-20126, 2004 WL 1909138, at * 3 n. 6 (5th Cir. Aug. 27, 2004).
For all of these reasons, the Court finds that the scope of habeas jurisdiction does not encompass claims that could be raised to the court of appeals in a petition for review. Consequently, this Court lacks habeas jurisdiction over petitioner's challenge to his order of removal.
IV. AVAILABLE HABEAS RELIEF
Even if the Court were to find that petitioner's claims fall within the limited scope of the Court's habeas jurisdiction, petitioner would still not be entitled to the specific relief he seeks in this action. Petitioner seeks to remain at liberty and to stay his deportation pending resolution of this action. (Pet. at 14.) He also seeks an order directing respondents to reopen his immigration hearing. ( Id.) He identifies no other specific relief that he seeks. ( Id.) However, the specific relief that petitioner seeks from the instant habeas petition lies outside the scope of available relief under 28 U.S.C. § 2241.
"A habeas court must . . . confine the scope of its review to considering the legality of the custody at issue." Zalawadia v. Ashcroft, 371 F.3d 292, 299 (5th Cir. 2004). This
singular focus on the legality of detention not only constrains the scope of a habeas court's review, it constrains both the class of individuals to whom the writ is available and the nature of relief that court may afford if and when the writ issues. As we previously indicated, only individuals who are in custody at the time of filing may petition the court for habeas relief. The relief available under the writ is similarly limited.Id. at 300. In immigration context, "vacating the deportation order is the beginning and the end of the habeas authority" of the federal courts. Id. at 301. "The sole remedy available under habeas [in such context] is for the district court to vacate the removal order." Id.
In view of the recent Zalawadia decision of the Fifth Circuit, petitioner would not be entitled to the habeas relief that he seeks in the instant action even if the Court were to find that his claims fall within the limited scope of this Court's habeas jurisdiction.
V. PROPRIETY OF TRANSFER TO SEVENTH CIRCUIT
When a court determines it lacks jurisdiction over an action, it must either dismiss the action or, in the interests of justice, transfer it to a court of proper jurisdiction. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (mentioning both options); 28 U.S.C. § 1631 (West 1994) (permitting transfers to cure want of jurisdiction); Fed.R.Civ.P. 12 (h) (3) (directing the Court to dismiss actions over which it appears that it lacks jurisdiction). Section 1631 permits a transfer to the court of appeals, if that court "would have been able to exercise jurisdiction on the date that the case was filed in the district court, the district court lacked jurisdiction over the case, and the transfer is in the interest of justice." See Hajjaoui v. Ashcroft, No. 03-60165, 2004 WL 1013371, at *1 (5th Cir. May 6, 2004).
Although petitioner could have raised his claims in a petition for review filed with the appropriate court of appeals, the government asserts that "[i]t appears that Petitioner failed to file a petition for review within thirty days of the BIA's decision on the denial of the motion to reopen." ( See Mot. Dismiss at 12.) Under 8 U.S.C. § 1252 (b) (1), the court of appeals have jurisdiction over a petition for review only if the petitioner files it within thirty days "from the date of the final order of removal." See Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003); Boykov v. Ashcroft, ___ F.3d ___, ___, No. 03-1608, 2004 WL 1936373, at *2 (7th Cir. Sept. 1, 2004). The date of the final order of removal means the date "[t]he BIA issued its final order affirming the immigration judge's order of removal." See Boykov, ___ F.3d at ___, 2004 WL 1936373, at *2.
"The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. § 1252 (b) (2). In this instance, the immigration judge completed the proceedings in Chicago, Illinois. Illinois is in the Seventh Circuit. See 28 U.S.C. § 41.
In this case the BIA issued its order dismissing petitioner's appeal on October 10, 2003. (Pet. at 7; Decision of BIA, attached as Ex. 15 to Pet.) Such order of dismissal is equivalent to affirming the immigration judge's order of removal, and thus commences the thirty-day period. Petitioner had until November 9, 2003, to file a petition for review with the appropriate court of appeals. He filed the instant petition for writ of habeas corpus on November 10, 2003. ( See Pet. at 1.) It thus appears that the instant action would have been untimely had it been filed as a petition for review. However, November 9, 2003, fell on a Sunday, and if the Court were to apply the calculation mechanism set forth in Fed.R.App.P. 26 (a), the petition for review would not have been due until Monday, November 10, 2003, the date it was filed. Rule 26(a) applies to the statutory deadlines for filing petitions for review. See Miller v. United States Postal Serv., 685 F.2d 148, 149 (5th Cir. 1982) (addressing Rule 26 (2) in context of petition for review under 5 U.S.C. § 7703 (b) (1)); Haroutunian v. INS, 87 F.3d 374, 375 n. 3 (9th Cir. 1996) (addressing Rule 26(a) in context of an immigration petition for review). It thus appears to this Court that the instant action would be timely as a petition for review had petitioner filed it in the Seventh Circuit. Because this Court has no jurisdiction over the instant action, and because petitioner would lose recourse to the court of appeals through a petition for review were the Court to simply dismiss this action, the interests of justice favor transferring the case as a petition for review to the judicial circuit in which the immigration judge completed the proceedings. See 8 U.S.C. § 1252 (b) (2). In this instance, the appropriate appellate court is the Seventh Circuit Court of Appeals.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the District Court grant respondent's motion to dismiss in part by finding that the scope of habeas review does not encompass claims that petitioner could have raised in a petition for review filed with the appropriate court of appeals. It is further recommended that instead of dismissing this action for lack of jurisdiction, the District Court should order the action transferred as a petition for review to the Seventh Circuit Court of Appeals.