Opinion
No. 3:05-CV-1296-N.
October 19, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this action has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is proceeding pro se. Respondents are the Board of Immigration Appeals and the Department of Homeland Security. The court issued process in this case.
Statement of Case: Petitioner is an alien who is subject to an administratively final order of removal. Petitioner also seeks a stay of his removal order. Respondents filed a motion to dismiss the petition under the REAL ID Act of 2005 and, alternatively, for failure to exhaust administrative remedies.
Findings and Conclusions: The Real ID Act of 2005, part of the "Emergency Supplemental Application Act for Defense, The Global War on Terror, and Tsunami Relief, 2005," P.L. 109-13, 2005 HR 1268, 119 Stat. 231, was enacted on May 11, 2005. Section 106 of the REAL ID Act amends § 242(a) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1252 (2000), by adding, inter alia, the following jurisdictional provision:
(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 of judicial review of an order of removal entered or issued under any provision of this Act, except as provided in subsection (e). For purposes of this Act, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms `judicial review' and `jurisdiction to review' include habeas corpus review pursuant to section 2241 of title 28, United States Code, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
REAL ID Act § 106(a)(5).
Section 106(b) of the REAL ID Act states:
The amendments made by subsection (a) shall take effect upon the date of the 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 the enactment of this division.
REAL ID Act § 106(b).
Petitioner filed this petition on June 24, 2005 — after the provisions of the REAL ID Act became effective. Petitioner is challenging the validity of his removal order. The provisions of the REAL ID Act, therefore, require this Court to dismiss the petition for lack of jurisdiction.
RECOMMENDATION
For the foregoing reasons, the Court recommends that the petition be dismissed for lack of jurisdiction.