Opinion
Civil Action No: SA-05-CA-0429-XR.
June 13, 2005
ORDER CONCERNING DISMISSAL
This case was filed under 28 U.S.C. § 2241 in an effort to challenge Petitioner's order of removal from the United States. Petitioner, an alien, pled guilty in Louisiana state court to possession with intent to distribute marijuana in 1999. Petitioner was then deported from the United States on February 14, 2001. On December 15, 2004, Petitioner was indicted in the Western District of Texas for illegal reentry into the United States on or about November 19, 2004, to which he pled guilty. Previously, Petitioner filed a § 2255 motion to vacate, which was dismissed as premature. Petitioner now files this § 2241 action attacking his criminal prosecution for illegal reentry. Petitioner alleges he was denied legal assistance during his 2001 deportation proceedings, that he can prove his legal status through derivative citizenship, that he was denied the right to appeal the 2001 order of deportation, and that venue for the pending criminal prosecution is improper in the Western District of Texas. United States Magistrate Judge John Primomo found that Petitioner was arguing that his current criminal proceeding was in violation of his rights, and recommended that this action be dismissed so that Petitioner's arguments could be put forward in his pending criminal case. Petitioner has filed objections to the Magistrate Judge's recommendation, arguing that his application for habeas relief is meant to challenge the conduct of his 2001 deportation proceedings.
On May 11, 2005, the Real ID Act of 2005 was enacted. PL 109-13, 119 Stat. 231 (May 11, 2005). Section 106(c) states,
If an alien's case, brought under section 2241 of title 28, United States Code, and challenging a final administrative order of removal, deportation, or exclusion, is pending in a district court on the date of the enactment of this division, then the district court shall transfer the case (or the part of the case that challenges the order of removal, deportation, or exclusion) to the court of appeals for the circuit in which a petition for review could have been properly filed under section 242(b)(2) of the Immigration and Nationality Act ( 8 U.S.C. 1252), as amended by this section, or under section 309(c)(4)(D) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( 8 U.S.C. 1101 note). The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that subsection (b)(1) of such section shall not apply.
The Court has reviewed Petitioner's § 2241 application and finds that it does not challenge a "final" administrative order of removal. Under 8 U.S.C. § 1252(d), "a court may review a final order of removal only if: (1) the alien has exhausted all administrative remedies available to the alien as of right."
Petitioner argues that his 2001 deportation was in violation of his constitutional rights, in that he was denied effective representation and was not informed of the consequences of his guilty plea, including that he would face deportation. Were Petitioner directly challenging the execution of that deportation order, it would likely have been proper for the Court to transfer this habeas application to the Fifth Circuit Court of Appeals under the Real ID Act of 2005. However, as Petitioner's 2001 deportation order has already been executed, and the time for filing a habeas petition to challenge that deportation proceeding has passed, Petitioner is foreclosed from collaterally challenging that order in this proceedings. See Trujillo v. United States, 115 Fed. Apps. 661, 2004 WL 2278489 (5 th Cir. 2004). Insofar as Petitioner's application could be construed (despite his protestations) as challenging his order of deportation stemming from his 2004 conviction, administrative remedies have not been exhausted. As an initial matter, Petitioner has not offered any evidence that he has formally been ordered removed from the United States. Assuming that he has, Petitioner has not offered any evidence to show that he has exhausted administrative remedies, such as appeal to the Board of Immigration Review. "[A] petitioner must exhaust available avenues of relief and turn to habeas only when no other means of judicial review exists." Lee v. Gonzales, ___ F.3d ___, 2005 WL1274218 (5th Cir. June 3, 2005, Slip Copy at 15). Because there is no "final" order of deportation, the Court does not need to transfer this case to the appropriate Court of Appeals under the Real ID Act of 2005 for adjudication. The Recommendation of the United States Magistrate Judge is ACCEPTED and the § 2241 application is DISMISSED.