Opinion
Civil Action No. 06-00114 (JAG).
May 19, 2006
LYONEL COLES, pro se, Hudson County Jail, Kearny, New Jersey.
OPINION
On January 5, 2006, Petitioner Lyonel Coles (hereinafter "Petitioner"), currently confined at the Hudson County Jail, Kearny, New Jersey, filed an application for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241.
Petitioner is a native and citizen of Haiti. See Pet. § 2. Petitioner was admitted to the United States on June 26, 1976 as a lawful permanent resident, see Resp., Ex. A at 1, but, following numerous convictions, has been ordered removed to Haiti. See Resp., Ex. C. The removal order was issued on October 4, 2004, and, following a remand and a new decision by the immigration judge, the Board of Immigration Appeals (hereinafter "BIA") affirmed the immigration court's finding that Petitioner was: (1) removable, and (2) subject to removal to Haiti. This final BIA decision was issued on September 30, 2005, ninety-seven days prior to filing of Petitioner's Petition. Petitioner now contests his removal order by asserting derivative citizenship from Petitioner's father who was naturalized on July 7, 1979. See id.
DISCUSSION
On May 11, 2005, the President signed into law the REAL ID Act of 2005. See Pub.L. 109-13, Div. B, 119 Stat. 231 (May 11, 2005). Section 106(a)(5) of the REAL ID Act of 2005 amends 8 U.S.C. § 1252 to provide that, "[n]otwithstanding any other provision of law (statutory or non[-]statutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision. . . . 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)." See REAL ID Act of 2005, § 106(a)(5), to be codified at 8 U.S.C. § 1252(a)(5).Moreover, pursuant to 28 U.S.C. § 1631,
[w]henever a civil action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
The applicable venue provision, 8 U.S.C. § 1252(b)(2), provides that a "petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." Since the seat of the immigration court that issued the order of removal at issue was Newark, New Jersey, the case should have been filed with the Court of Appeals for the Third Circuit.
Respondent argues that Petitioner's Petition should be dismissed rather than transferred to the Court of Appeals for the Third Circuit since Petitioner failed to appeal the final ruling of the BIA. See Resp. at 3-4 ("Petitioner [had] to appeal the BIA decision. . . . Petitioner did not do that but rather filed this habeas action") (citing Manyevere v. Prendes, 2006 U.S. Dist. LEXIS 7069 (N.D. Tex. Feb. 24, 2006)). This Court, however, construes Petitioner's application as a request for leave to appeal the BIA decision to the Court of Appeals for the Third Circuit and, having no jurisdiction to decide on behalf of the Circuit Court whether Petitioner should be granted such leave, finds it in the interests of justice to transfer the case to the Third Circuit.
CONCLUSION
Since Petitioner's application contesting his removal order should have been filed with the Court of Appeals for the Third Circuit, this Court transfer the case accordingly.An appropriate Order and a copy of the June 16, 2005, Special Notice of the United States Court of Appeals for the Third Circuit accompany this Opinion.