Opinion
No. CV 04-2495-DGC (ECV).
August 31, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Pending before the court is a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. #1) filed by Petitioner Manuel Reyes-Alcaraz (A13-611-060).
BACKGROUND
Some of the facts recited in this Order are taken from the published decision by the United States Court of Appeals for the Ninth Circuit denying Petitioner's petition for review from the decision of the Board of Immigration Appeals. Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. 2004).
Petitioner is a native and citizen of Mexico. In 1963, Petitioner entered the United States as a lawful permanent resident. In 1995, Petitioner was convicted of felony driving under the influence, in violation of § 23152(a) of the California Vehicle Code. In 1996, Petitioner pleaded guilty to the felony offense of exhibiting a deadly weapon to a police officer, with the intent to resist arrest, in violation of § 417.8 of the California Penal Code ("CPC").
In 2001, the Immigration and Naturalization Service ("INS") charged that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F) (crime of violence for which the term of imprisonment is at least one year). On December 14, 2001, an immigration judge held that Petitioner is an alien, that his CPC § 417.8 conviction qualifies as an aggravated felony, and that he is not eligible for cancellation of removal. On June 14, 2002, the Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision without opinion. As reflected above in footnote 1, Petitioner sought review of the BIA's decision but was denied relief.
The INS ceased to exist as an independent agency within the Department of Justice and its functions were transferred to the newly formed Department of Homeland Security on March 1, 2003. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135.
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner filed his Petition for Writ of Habeas Corpus on November 10, 2004, while he was confined in the Eloy Detention Center in Eloy, Arizona. In an Order to Show Cause (Doc. #4) filed on November 12, 2004, Judge David G. Campbell dismissed some claims and directed Respondents to answer those claims that were not dismissed. Judge Campbell also ordered Respondents to file a "Notice of Intent to Remove" if they planned to remove Petitioner from the United States before the petition was decided. Respondents filed a Response in Opposition to Petition for Writ of Habeas Corpus (Doc. #10) on January 18, 2005. On March 15, 2005, Respondents filed a Notice of Intent to Remove (Doc. #12) stating that they intended to remove Petitioner on March 28, 2005. To ensure that Petitioner had enough time to prepare and file a request to stay his removal, on March 24, 2005, Judge Campbell issued a Temporary Stay of Removal (Doc. #13) prohibiting Respondents from removing Petitioner before April 13, 2005. Petitioner, however, did not file a request to stay his removal. Respondents were therefore permitted to effect his removal, and on April 22, 2005, Respondents filed a Notice of Filing of Executed Warrant of Removal (Doc. #14) indicating that Petitioner was removed to Mexico on April 13, 2005.
Petitioner's removal from the United States does not render this action legally moot. See Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003) (where a habeas petitioner is deported after the petition was filed, the fact of deportation does not render the habeas petition moot where there are collateral consequences arising from the deportation; an administrative determination that alien is an aggravated felon gives rise to sufficient collateral consequences).
RECOMMENDATION TO TRANSFER
Although Respondents have not filed a motion to transfer, the court will recommend that this matter be transferred to the United States Court of Appeals for the Ninth Circuit based on the enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). As amended by the REAL ID Act, 8 U.S.C. § 1252(a)(5) now provides in relevant part:
(5) EXCLUSIVE MEANS OF REVIEW. — Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act, except as provided in subsection (e).
REAL ID Act § 106(a)(1)(B). By this amendment, Congress has deprived the district court of habeas corpus jurisdiction to review an order of removal entered under the Immigration and Nationality Act. Moreover, REAL ID Act § 106(b) provides that § 106(a) of the Act is retroactive: "subsection (a) shall take effect upon the date of enactment of this division and shall apply to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment." REAL ID Act § 106(b). Because the underlying petition for writ of habeas corpus challenges "the lawfulness of the Board of Immigration Appeals' [removal] order entered against the Petitioner on October 12, 2004," (Petition at 1), this court no longer has jurisdiction over this action. However, the lack of jurisdiction in this court, does not necessarily mean that Petitioner is without a remedy.
In addition to stripping the district courts of jurisdiction to review orders of removal, the REAL ID Act also "restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders" in the courts of appeals. Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005). Under the prior version of 8 U.S.C. § 1252(a)(2)(C), the courts of appeals were deprived of jurisdiction to review removal orders entered against certain criminal aliens. But REAL ID Act § 106(a)(1)(A)(iii) restored jurisdiction in the courts of appeals to review removal orders entered against criminal aliens:
(D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS. — Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
REAL ID Act § 106(a)(1)(A)(iii); Fernandez-Ruiz, 410 F.3d at 587. Additionally, REAL ID Act § 106(c) provides that if any § 2241 habeas corpus case "challenging a final administrative order of removal . . . is pending in a district court on the date of enactment, then the district court shall transfer the case . . . to the [appropriate] court of appeals." REAL ID Act § 106(c). Accordingly, the court will recommend that this action be transferred to the United States Court of Appeals for the Ninth Circuit.
IT IS THEREFORE RECOMMENDED:
That this action be transferred to the United States Court of Appeals for the Ninth Circuit pursuant to section 106(c) of the REAL ID Act of 2005.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review.See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.