Opinion
NO. CV-07-67-RHW.
June 20, 2008
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
Before the Court is Petitioner's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Ct. Rec. 1). The Court ordered Respondent to show cause why the writ should not be granted (Ct. Rec. 3). Respondent filed a Return and Opposition to Plaintiff's Habeas Petition (Ct. Rec. 5) and Petitioner filed an Answer (Ct. Rec. 6). Respondent then filed a Motion to Dismiss (Ct. Rec. 7), to which Defendant did not respond. On March 12, 2007, the Government filed a Notice of Defendant's Release from U.S. Marshal's Custody to the Custody of Immigration and Customs Enforcement.
In his Answer, Petitioner stated that he is not attacking his criminal conviction, rather, he is challenging his January 2000 removal order issued by the Immigration and Naturalization Service. As a result, Respondent filed his Motion to Dismiss arguing that he is not the proper party to defend the Immigration and Naturalization Service's action in 2000. The Court agrees.
Additionally, with the enactment of REAL ID Act of 2005, the availability of habeas corpus relief in the district courts for aliens seeking to challenge orders of removal was eliminated. 8 U.S.C. § 1252(a)(5); Kolkevich v. Attorney General of the United States, 501 F.3d 323, 325 (3rd Cir. 2007). Also, the time limit for filing for relief from the final order of removal has passed. See Kolkevich, 501 F.3d at 337 (holding that aliens who received final orders of removal prior to the enactment of RIDA have 30 days after the enactment of RIDA with which to file a challenge to the order).
Accordingly, IT IS HEREBY ORDERED:
1. Respondent's Motion to Dismiss (Ct. Rec. 7) is GRANTED.
2. The above-captioned case is dismissed, without prejudice.IT IS SO ORDERED. The District Court Executive is directed to enter this Order and to provide copies to counsel.