Opinion
No. 05 Civ. 6605 (LAK).
July 21, 2005
ORDER
Petitioner has filed a petition for a writ of habeas corpus to review a final order of deportation and/or for a declaration that petitioner is a national and not subject to mandatory detention pursuant to Section 236 of the Immigration and Nationality Act. This afternoon the Court was presented with a proposed order to show cause seeking to bring on a motion for an order vacating the order of deportation or for other relief. The proposed order is unsupported by any declaration or affidavit. The petition for the writ is not verified.
S.D.N.Y. Civ. R. 6.1(d) provides that "[n]o ex parte order, or order to show cause to bring on a motion, will be granted except upon a clear and specific showing by affidavit of good and sufficient reasons why a procedure other than by notice of motion is necessary, and stating whether a previous application for similar relief has been made." No such showing has been made here. Moreover, according to the petition, the order of deportation was issued on December 12, 2002 and affirmed by the Board of Immigration Appeals ("BIA") on December 12, 2003. No explanation is offered as to why it has taken petitioner over 19 months to seek review of the BIA's order, let alone as to why review is sought in this Court rather than by petition to the Court of Appeals. Nor has there been any showing of urgency. Accordingly, this Court declines to issue an order to show cause. Petitioner is at liberty to file any appropriate motion on notice.
The petition recites that a copy of the BIA's order is attached as Exhibit D. Exhibit D, however, is a copy of a September 24, 2003 BIA order sustaining the Department of Homeland Security's appeal from an order releasing the petitioner on bond.
The Court notes also that the petitioner's papers make no reference to Section 106 of the Real ID Act of 2005, which in pertinent part provides:
"Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act, except as provided in subsection (e). For purposes of this Act, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms `judicial review' and `jurisdiction to review' include habeas corpus review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory)."
Accordingly, petitioner shall show cause, on or before August 1, 2005, why the petition should not be dismissed for lack of subject matter jurisdiction.
SO ORDERED.