Free Order on Report and Recommendations - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Thomas Long; et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02085-JAT Document 32-2 Filed 08/18/2005 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Victor Manuel Yanez, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) )

No. CV 03-2085-PHX-JAT ORDER

On October 27, 2003, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the Immigration Judge and the Board of Immigration Appeals' decision to deport Petitioner. On January 21, 2004, Petitioner was deported. On April 28, 2005, the Magistrate Judge issued a Report and Recommendation which recommends that the Petition be denied. (Doc. #27). On June 8, 2005, the Respondents filed objections to the Report and Recommendation wherein they state that while they agree with the conclusion of the Report and Recommendation, they believe this Court no longer has jurisdiction over this case due to the enactment of the Real ID Act of 2005. Accordingly, on June 8, 2005, Respondents also filed a Motion to Transfer (Doc. #30). Respondents argue that the Court's jurisdiction over this matter has been eliminated by the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). Respondents request that this action be transferred to the United States Court of

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Appeals for the Ninth Circuit pursuant to REAL ID Act § 105(c). Petitioner has not responded to the Motion to Transfer. 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 this 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 Petitioner, 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 -2Case 2:03-cv-02085-JAT Document 32-2 Filed 08/18/2005 Page 2 of 3

1 2 3

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

4 Act § 106(c) provides that if any § 2241 habeas corpus case "challenging a final 5 administrative order of removal . . . is pending in a district court on the date of enactment, 6 then the district court shall transfer the case . . . to the [appropriate] court of appeals." REAL 7 ID Act §106(c). Accordingly, Respondents' Motion to Transfer will be granted and this 8 action will be transferred to the United States Court of Appeals for the Ninth Circuit. 9 IT IS THEREFORE ORDERED that Respondents' Motion to Transfer (Doc. #30) 10 is granted and the Petition and this action shall be transferred as a petition for review to 11 the United States Court of Appeals for the Ninth Circuit pursuant to section 106(c) of the 12 REAL ID Act of 2005. The Clerk of Court shall transfer this action forthwith. 13 IT IS FURTHER ORDERED that the objections to the Report and Recommendation 14 are accepted (Doc. #30) and this Court declines to adopt the Report and Recommendation 15 (Doc. #27) as moot. 16 17 18 19 20 21 22 23 24 25 26 27 28 -3Case 2:03-cv-02085-JAT Document 32-2 Filed 08/18/2005 Page 3 of 3

DATED this 17th day of August, 2005.