Opinion
NO. 2:06-cv-1389-NS.
May 23, 2006
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus (With Omnibus Motion for Stay of Removal, Release from Detention on Bail, and Remand of the Case to the District Director) pursuant to 28 U.S.C. § 2241 by a prisoner in custody of the Bureau of Immigration and Customs Enforcement ("BICE"), part of the Department of Homeland Security. For the reasons which follow, it is recommended that the petition be dismissed without prejudice.
I. PROCEDURAL HISTORY
Petitioner, a 32 year old citizen of Peru, entered the United States on a visitor's visa on May 17, 1993. After having exceeded his authorized stay, petitioner was placed in removal proceedings. Petitioner alleged a well-founded fear of deportation, but having moved to Pennsylvania, he never attended the removal proceedings or hearings in Miami, Florida. Accordingly, the Immigration Court issued his final removal order in absentia. He never filed a notice of appeal from this order.
On May 7, 2006, petitioner was taken into custody by agents of BICE. As he was under a final order of removal, he was automatically detained. Petitioner claims, however, to have filed a motion to reopen his deportation case, which is now pending in Miami, Florida. To date, he is detained at the York County Detention Center, PA.
This court does not have record of this motion; however, it has no bearing on the disposition of this petition.
On March 30, 2006, he filed a Petition for Writ of Habeas Corpus, challenging his initial detention without a hearing and continued confinement on due process grounds.
II. DISCUSSION
There is significant question as to whether this Court has jurisdiction over this matter in light of recent congressional enactments. On May 11, 2005, the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B., 119 Stat. 231 was enacted. Section 106 of that Act amended Section 242(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1252(a), by adding the following:
(5) Exclusive means of review
Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, 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 chapter, except as provided in subsection (e) of this section. For purposes of this chapter, 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, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or non-statutory).8 U.S.C. § 1252(a)(5). In so doing, the Act expressly eliminated district courts' habeas jurisdiction over removal orders. Jordon v. Attorney General of U.S., 424 F.3d 320, 326 (3d Cir. 2005). Therefore, to the extent that petitioner challenges the final removal order, this court lacks jurisdiction and must dismiss without prejudice.
The petitioner may re-file in the appropriate Court of Appeals. However, it should be noted that 8 U.S.C. § 1252(b) places a thirty (30) day time limit on petitions for review of removal orders. In addition, petitions for review must 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). In the present case, the petitioner's final removal order was processed in Florida, necessitating that any petition for review be filed with the 11th Circuit Court of Appeals.
Although Congress specifically eliminated the district courts' habeas corpus jurisdiction over review of removal orders, the REAL ID Act did not affect the district courts' jurisdiction over review of other habeas corpus claims. Section 106(a)(1) only eliminates district courts' habeas jurisdiction over review of orders of removal. See § 106(a)(1) (a petition for review shall be the "sole and exclusive means for judicial review of an order of removal"). Notably, "section 106 will not preclude habeas review over challenges to detention that are independent of challenges to removal orders. Instead, the bill would eliminate habeas review only over challenges to removal orders." H.R. Rep. No. 109-72, 175, 2005 U.S.C.C.A.N. 140 (May 3, 2005). Attempting to define this provision, the Third Circuit noted that it "applies only to aliens who are challenging an order of removal via habeas corpus. An alien challenging the legality of his detention still may petition for habeas corpus." Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 4 (3d Cir. 2005) (emphasis in original).
However, to the extent that petitioner challenges his detention, this court again must dismiss for lack of jurisdiction. Under 28 U.S.C. § 2241(a), a district court only has the power to grant the writ if it has jurisdiction over the petitioner's custodian. Interpreting this statute, the United States Supreme Court, in Rumsfeld v. Padilla, 542 U.S. 426, 124 S. Ct. 2711 (2004), has dictated a simple, but overarching rule: for "core" habeas petitions challenging present physical confinement, jurisdiction lies only in the district of confinement. Id. at 2722. The Court in Padilla, however, expressly declined to address the application of this rule in the context of a habeas petition by an alien detained pending deportation. Id. at 2718 n. 8. While the Third Circuit has not addressed this issue in light of the decision in Padilla, we are inclined to follow the logic of the Seventh Circuit, the only Court of Appeals that has directly spoken to this issue since Padilla. See Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. 2006) (noting that, while the Supreme Court expressly left open the application of the immediate custodian rule in the context of immigration, the Court's implication of the rule in all "core" challenges suggests that it should also apply to "core" challenges by alien detainees). Accordingly, we find that to the extent petitioner challenges his present physical confinement, his claim represents a "core" challenge and must be filed in the district of confinement.
The Supreme Court explained, however, that it was using the word "jurisdiction" in the sense that it is used in the habeas statute . . . and not in the sense of subject-matter jurisdiction of the District Court." Padilla, 124 S. Ct. at 2717, n. 7.
In the case at bar, petitioner is being detained at York County Prison, which falls within the jurisdiction of the United States District Court for the Middle District of Pennsylvania. Since the petition was filed in the wrong district, we opt to dismiss without prejudice to petitioner's right to re-file in the correct court. See e.g. Padilla, 124 S. Ct. at 2727; White v. Grace, Civ. A. No. 05-0164, 2005 WL 1309044, *4, n. 4 (M.D. Pa. June 1, 2005).
While the petitioner may re-file in the appropriate district, he should note that 8 U.S.C. § 1231(a) authorizes for confinement up to 90 day. See. Aramayo-Escobar v. Bureau of Immigration Customs Enforcement, 2005 U.S. Dist. LEXIS 29880 (M.D. Pa. 2005) (dismissing under Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts for failure to state claim entitled to relief where confinement was less than 90 days).
Therefore, I make the following:
RECOMMENDATION
AND NOW, MAY 23, 2006, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DISMISSED WITHOUT PREJUDICE. The petitioner shall have the right to re-file his petition in a manner consistent with the above opinion.