Opinion
Civil Action No. 05-0493.
February 7, 2006
RULING
Petitioner filed this petition for writ of habeas corpus on March 16, 2005. Petitioner contests both his removal and his continued detention. On November 4, 2005, Magistrate Judge James D. Kirk issued two reports. In this Ruling the Court will address Magistrate Judge Kirk's recommendations in the first report [Doc. No. 13]. In the first report, Magistrate Judge Kirk recommends that Petitioner's claims regarding removal be transferred to the Eleventh Circuit Court of Appeals. The Court agrees with that recommendation and ADOPTS IN PART the Report and Recommendation of Magistrate Judge Kirk.
However, Magistrate Judge Kirk also recommends that the Court issue a stay of removal pending further order of the Eleventh Circuit Court of Appeals. Respondents object to this recommendation, contending that (1) the Court has no jurisdiction to enter the stay, (2) Magistrate Judge Kirk failed to conduct any analysis using the traditional four-part test for injunctive relief, and (3) there is no final order of removal because proceedings are currently being conducted in the Immigration Court.
Magistrate Judge Kirk correctly cites Section 106 of the Real ID Act, 8 U.S.C. § 1252(a)(5), as added by § 106(a)(1)(B) of the Real ID Act, Pub.L. 109-13, 119 Stat. 231 (2005), for the proposition that district courts no longer have jurisdiction to review orders of removal. Further, pursuant to § 106(c) of the Act, Magistrate Judge Kirk has properly recommended transfer to the appropriate court of appeals.
However, the Court has no jurisdiction to grant a stay in this matter. The Court has carefully reviewed the provisions of the Real ID Act. In this case, this petition was pending prior to the enactment of the Real ID Act. If Petitioner had sought and the Court granted a stay prior to the enactment of the Real ID Act, then Respondents' recourse would have been to seek dissolution in the appropriate court of appeals. This Petitioner never requested a stay; rather, Magistrate Judge Kirk sua sponte recommended that the Court issue a stay pending further order of the Eleventh Circuit Court of Appeals. While the Court agrees with Magistrate Judge Kirk that such a procedure would be reasonable, unfortunately, it has no jurisdiction to enter this stay. By depriving district courts of jurisdiction to hear cases challenging final orders of removal, Congress necessarily deprived district courts of jurisdiction to grant stays of removal in such cases. Under 8 U.S.C. § 1252(b)(3)(B), the only court that may issue a stay is the court that will issue a "decision on the petition."
Accordingly, the Court DECLINES TO ADOPT Magistrate Judge Kirk's recommendation that a stay issue pending further order of the Eleventh Circuit Court of Appeals. Petitioner is free to seek a stay in the appellate court, if necessary.