Summary
adopting Magistrate's recommendation to transfer habeas petition, containing CAT claim, to court of appeals because the case "is purely a challenge to the administrative order of removal."
Summary of this case from Dorisme v. GonzalezOpinion
No. CIV 03-0367-PHX-MHM (CRP).
November 8, 2005
ORDER
Petitioner has filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. The matter was referred to Magistrate Judge Charles R. Pyle. Respondents have filed a motion to transfer this case to the Court of Appeals for the Ninth Circuit. (Doc. 7). The Magistrate Judge has issued a Report and Recommendation that recommends that the motion to transfer should be granted. (Doc.8). Petitioner has not filed an objection to the Report and Recommendation.
STANDARD OF REVIEW
The Court must review the legal analysis in the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). The Court must review the factual analysis in the Report and Recommendation de novo for those facts to which objections are filed. Id. "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir. 2000).
DISCUSSION
The Court has considered the documents of record in this case. Based on the documents on file, in Grounds One and Three Petitioner has challenged the final administrative order of removal, contending that the Board of Immigration Appeals erred when it determined that he was ineligible for asylum and relief under § 212(h) of the Immigration and Nationality Act; and that he is eligible for asylum and protection and relief from removal under the United Nations Convention Against Torture. Petitioner's claim in Ground Two that counsel was ineffective for not advising him of the immigration consequences when Petitioner pleaded guilty in state criminal proceedings in California is not at issue because that claim was denied in a previous Order. (Doc. 3 — Order denying Ground Two). Any recommendation by the Magistrate Judge as to Ground Two is moot and not adopted by this Court.Under the REAL ID Act of 2005, Pub.L. No. 109-13, § 106, enacted on May 11, 2005, the district court shall transfer the case, or the part of the case, that challenges a final administrative 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. In Grounds One and Three, Petitioner has challenged the final administrative order of removal. This Court adopts the Report and Recommendation to the extent that Grounds One and Three are required to be transferred to the Court of Appeals for the Ninth Circuit and that Respondents' motion to transfer should be granted.
Accordingly,
IT IS ORDERED that the Court adopts the Magistrate Judge's Report and Recommendation (Doc. 8) in part as set forth in this Order;
IT IS FURTHER ORDERED that Respondents' motion to transfer (Doc. 7) is granted.
IT IS FURTHER ORDERED that Grounds One and Three (the only remaining grounds) of the Petition for Writ of Habeas Corpus (including the case file) challenging the final administrative order of removal is transferred to the United States Court of Appeals for the Ninth Circuit as a Petition for Review pursuant to the REAL ID Act of 2005.