Opinion
Civil Action No. SA-05-CA-413-OG.
June 2, 2005
ORDER
Pending before the Court is the Original Verified Application for Writ of Habeas Corpus and Applicant's Motion to Stay Removal (Dkt. # 1) and Respondent's Motion to Transfer to the Court of Appeals (Dkt. # 5). Having reviewed the application, motion to transfer and the applicable law, the Court finds that it lacks jurisdiction to hear this case, and that this matter should be transferred to the Fifth Circuit Court of Appeals for possible consolidation with Case No. 05-50102.
Applicant filed this [third] application for writ of habeas corpus on May 5, 2005. (Dkt. # 1). In his application, he challenges a final administrative order of removal, and seeks a stay of removal pending a decision on the merits of his application. On May 6, 2005, the Court granted the request for a temporary stay of removal pending a determination on the status of the proceedings currently pending before the Fifth Circuit in Case No. 05-50102. On May 11, 2005, the REAL ID Act of 2005 became effective. The Act states, in part:
Sec. 106. JUDICIAL REVIEW OF ORDERS OF REMOVAL.
(c) Transfer of Cases — 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).
(Emphasis added).
This case must, therefore, be transferred to the Fifth Circuit Court of Appeals. Because Applicant's prior application for writ of habeas corpus is already pending before the Fifth Circuit (Case No. 05-50102), the appellate court may determine whether consolidation is appropriate and whether a stay of his removal pending a decision on the merits is warranted.
It is therefore ORDERED that this case is TRANSFERRED in its entirety to the U.S. Court of Appeals for the Fifth Circuit, pursuant to the requirements of Section 106 of the REAL ID Act.