Case 1:00-cv-01658-JLK
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-01658-JLK MIGUEL ANGEL TORRES DE LA CRUZ, Petitioner, vs. COMMISSIONER, United States Immigration and Naturalization Service, Denver, Colorado,1 Respondent.
RESPONDENT'S MOTION TO TRANSFER HABEAS PETITION TO COURT OF APPEALS
Respondent, by and through undersigned counsel, hereby files this instant Motion to Transfer the Petition for a Writ of Habeas Corpus to the Court of Appeals for the Tenth Circuit.2 Transfer of the Habeas Petition is required by recently enacted legislation in which Congress divested the district courts of jurisdiction (habeas or otherwise) to review removal orders, and provided that habeas petitions which were pending in the district court on the date of the enactment of this legislation, and which sought review of removal
The section of the Immigration and Naturalization Service (INS) that is responsible for detention and removal is now known as the United States Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security. Pursuant to D.C.Colo.LCivR 7.1, undersigned counsel, through Assistant U.S. Attorney Michael Hegarty, conferred with counsel for Petitioner, Jim Salvator, who opposes the relief requested herein.
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orders, "shall" be transferred to courts of appeals. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106(a), (c), 119 Stat. 231 (2005) (hereinafter referred to as "RIDA"). In support of this motion, Respondent states as follows: I. PROCEDURAL AND STATUTORY BACKGROUND A. Order of Removal3 Petitioner is a native and citizen of Mexico who entered the United States on October 30, 1992, as an immigrant. In removal proceedings initiated by the INS through the filing of a Notice to Appeal (NTA), at a hearing before the Immigration Judge (IJ), the Petitioner, through counsel, admitted the factual allegations in the NTA, as amended, and conceded removability as charged. In a decision dated February 7, 2000, the IJ found the petitioner removable as charged, denied his application for relief under Section 240A(a) of the Act because he was statutorily ineligible, and ordered him removed to Mexico. The petitioner appealed to the Board of Immigration Appeals (Board). On August 16, 2000, the Board affirmed the IJ's decision and dismissed the appeal. The Petitioner filed a motion to reopen the case before the BIA. On February 8, 2001, the BIA denied the motion to reopen. B. Petitioner's Habeas Petition Petitioner filed this action on August 21, 2000. On November 6, 2000, Petitioner amended his petition to assert a claim that he has been convicted of a deportable offense.
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These facts are contained in Respondent's August 9, 2001 Brief on the Merits. -2-
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On November 7, 2000, the Court ordered a bond hearing for Petitioner. Magistrate Judge Schlatter entered his Order Setting Conditions of Release on November 8, 2000. In essence, Petitioner is requesting that this Court should find that the Tenth Circuit should follow Ninth Circuit law and exempt first-time drug offenders from removability (pursuant to the Federal First Offenders Act (FFOA)). Respondent has alleged that the FFOA and the Immigration & Nationality Act (INA) are separate statutory schemes, with the INA defining Petitioner's crime as a deportable offense. C. The REAL ID Act of 2005 On May 11, 2005, the President signed into law the REAL ID Act of 2005 (RIDA). Section 106(a) of RIDA makes several significant amendments to the Immigration and Nationality Act's (INA) jurisdictional statute at 8 U.S.C. § 1252. It amends Section 242(a) of the INA, 8 U.S.C. § 1252(a), to clarify that district courts lack jurisdiction, habeas or otherwise, to review any removal order for any alien, criminal or non-criminal. As a result, the jurisdiction-divesting statute at 8 U.S.C. § 1252(a)(2)(C), which the Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001), found to preclude "judicial review" over criminal aliens' removal orders, but not to preclude "habeas review" in district court, now clearly precludes all review, including habeas corpus review. As amended, Section 242(a)(2)(C) of the INA now reads as follows: ORDERS AGAINST CRIMINAL ALIENS -- 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 -3-
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1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title . . . . 8 U.S.C. § 1252(a)(2)(C), as amended by RIDA § 106(a) (emphasis added). Subparagraph (d), to which § 1252(a)(2)(C) refers, is a new section created by RIDA which provides that no jurisdictional-precluding statute "shall be construed as precluding review of constitutional claims or questions of law raised in a petition for review filed with the appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D). Accordingly, Congress has provided that the only available review over removal orders of criminal aliens who fall within § 1252(a)(2)(C)'s reach is review over "constitutional claims or questions of law" filed through a petition for review in the courts of appeals. This conclusion is supported by several other amendments in RIDA, including Section 106(a)'s amendment creating new Section 242(a)(5) of the INA, 8 U.S.C. § 1252(a)(5). That provision, which is entitled the "Exclusive Means of Review," states: 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, and except as provided in subparagraph (D), 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 . . . . -4-
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8 U.S.C. § 1252(a)(5) (emphasis added); see also 8 U.S.C. § 1252(b)(9), as amended by RIDA § 106(a) (requiring that all issues relating to the removal of an alien be raised in a petition for review in the courts of appeals and that, except as provided by this procedure, "no court shall have jurisdiction, by habeas corpus under section 2241 . . ." or any other provision to review issues relating to the removal of an alien). In sum, by enacting Section 106(a) of RIDA, Congress clearly responded to the Supreme Court's decision in St. Cyr by clarifying that district courts lack jurisdiction over removal orders, through habeas corpus or otherwise. At the same time, Congress created an alternative remedy in the courts of appeals that enables all aliens including criminal aliens to obtain review of constitutional claims and "questions of law" through petitions for review filed in the courts of appeals. See St. Cyr, 533 U.S. at 314 & n.38 (holding that " . . . Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals"). Finally, Congress made these amendments effective immediately and applicable to any "final administrative order of removal, deportation, exclusion" that was "issued before, on, or after the date of the enactment of this division." RIDA, § 106(b). Most significant for purposes of this case, Congress also provided that for habeas petitions "pending in a district court on the date of enactment . . . the district court shall transfer the case (or the part of the case that challenges the order . . .) to the court of appeals for the circuit in which a petition for
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review could have been properly filed . . . ." 4 RIDA § 106(c). II. ARGUMENT PURSUANT TO SECTION 106(c) OF RIDA, THIS COURT SHOULD TRANSFER THE HABEAS PETITION TO THE TENTH CIRCUIT COURT OF APPEALS Section 106(c) of RIDA requires this Court to transfer Petitioner's Habeas Petition to the Tenth Circuit. That provision states in relevant part: 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 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 . . . The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under section 242, except that subsection (b)(1) of such section shall not apply. This case satisfies all of the requirements for a transfer under Section 106(c) of RIDA. First, Petitioner filed his Habeas Petition pursuant to 28 U.S.C. § 2241. Second, in his habeas petition, Petitioner clearly challenges his final order of expedited removal by claiming that its entry violated his procedural due process rights. See Joint Status Report dated July 12, 2001 (Docket # 18), at 1 ("This Court has jurisdiction over the subject matter of this habeas petition, in that it involves pure questions of law arising out
Habeas petitions that are filed in district court after the date of enactment and challenge a removal order are subject to dismissal under RIDA § 106(a). -6-
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of a removal action of an alien."). Third, the Habeas Petition in the above-captioned matter was clearly pending before this Court on the date of RIDA's enactment May 11, 2005. Accordingly, because all of these requirements are met, the Court should transfer Petitioner's Habeas Petition to the Tenth Circuit. That is the proper circuit because Petitioner's immigration proceedings were completed in this circuit. See RIDA § 106(c) (citing 8 U.S.C. § 1252(b)(2) (providing that the petition for review should be filed in the circuit in which the alien's immigration proceedings were completed)). In at least four other similarly situated cases in this District, the courts have transferred the cases to the Tenth Circuit. Hem v. Maurer, No. 04-cv-2467-MSK-MJW; Lin v. Maurer, No. 05-cv1494-PSF; Zamorano v. Gonzales, No. 05-cv-191-PSF-OES; Vaupel v. Ortiz, No. 05-cv327-WDM-MJW (later remanded upon motion by Respondent). Undersigned counsel is aware of no case in this District in which the Court has denied a motion to transfer on facts similar to those presented here. III. CONCLUSION For the foregoing reasons, Respondent respectfully requests that the Court transfer Petitioner's Habeas Petition to the United States Court of Appeals for the Tenth Circuit.
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DATED this 18 th day of January, 2006. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY s/ Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 [email protected] Counsel for the Respondent
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on this 18th day of January, 2006, I electronically filed the foregoing RESPONDENT'S MOTION TO TRANSFER HABEAS PETITION TO COURT OF APPEALS the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
[email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:
Agency Counsel: Donald O'Hare, Esq. Deputy Field Counsel U.S. Immigration & Customs Enforcement 4730 Paris Street Denver, CO 80239 By:
s/ Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202
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