The opinion of the court was delivered by: NINA GERSHON, District Judge
Petitioner, who is currently detained in the custody of United
States Immigration and Customs Enforcement ("ICE"), has filed two
virtually identical petitions for a writ of habeas corpus under
28 U.S.C. § 2241. Pursuant to an order dated June 21, 2003, the
petitions have been consolidated. Claiming that he is a United
States citizen, petitioner challenges the validity of an order of
deportation entered against him. For the reasons set forth below,
this court lacks subject matter jurisdiction over the petitions.
Accordingly, they are dismissed.
Petitioner was born in Panama on June 3, 1965. He entered the
United States as a non-immigrant visitor for pleasure on March
13, 1982. Initially, he was authorized to remain here until April
20, 1982. His authorization was later extended to October 20,
1982. Petitioner remained in the United States beyond that date.
The Immigration and Naturalization Service ("INS")*fn1
commenced deportation proceedings against petitioner on May 12,
1983. On September 1, 1983, the immigration judge ("IJ") issued a decision
ordering that petitioner be deported if he did not leave the
country voluntarily by September 7, 1983 ("Order of
Deportation"). Petitioner failed to leave voluntarily and was
deported to Panama on September 9, 1983. He later re-entered the
United States illegally.
On October 12, 1993, petitioner was convicted in New York State
Supreme Court, Kings County, of rape in the first degree, and
sentenced to three and one-half to ten and one-half years in
prison. On December 19, 2003, petitioner was convicted in the
Southern District of New York of illegally re-entering the United
States, and sentenced to three months in prison.
On October 29, 2003, the Department of Justice ("DOJ") gave
petitioner notice of its intent to reinstate the Order of
Deportation. Following adjudication by an immigration officer,
DOJ issued a decision and order on January 23, 2004 reinstating
the Order of Deportation.*fn2 Since the end of his prison term for the federal conviction,
petitioner has been detained in the custody of ICE. On March 22,
2004, and again on April 19, 2004, petitioner filed petitions for
a writ of habeas corpus, which were consolidated before this
court. The only issue raised in the petitions is that of
petitioner's citizenship. Petitioner asserts that he is a United
States citizen pursuant to Section 303 of the INA, codified at
8 U.S.C. § 1403, which confers citizen status on the children of
certain United States citizens residing in Panama. An order
granting petitioner a temporary stay of deportation was entered
on April 22, 2004.
The INA requires a habeas corpus petitioner to exhaust all
available administrative remedies before seeking judicial review
by a federal court. 8 U.S.C. § 1105a(c) (1995) (repealed Sept.
30, 1996); Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52 (2d
Cir. 2004).*fn3 Failure to exhaust administrative remedies
deprives a district court of subject matter jurisdiction over a
habeas corpus petition. Theodoropoulos v. Immigration and
Naturalization Service, 358 F.3d 162, 168 (2d Cir. 2004). The
statutory exhaustion requirement is excusable only when "manifest
injustice" would otherwise result. Marrero Pichardo,
374 F.3d at 53. Petitioner has failed to exhaust the administrative remedies
available to him as of right. In general, there are two
administrative avenues for presenting a claim of citizenship.
First, a person may raise such claim during the course of removal
proceedings. If the claim is denied and all administrative
appeals exhausted, the claimant may seek judicial review in the
Court of Appeals. 8 U.S.C. § 1105a(a)(5) (1995) (repealed Sept.
30, 1996); 8 U.S.C. § 1252(b)(5) (2004). (Thus, even if
petitioner had satisfied the exhaustion requirement, this court
would not have jurisdiction to hear his case. When a claim of
citizenship arises in the context of a removal proceeding,
original jurisdiction lies in the Court of Appeals exclusively.
See Austin v. Immigration and Naturalization Service,
308 F. Supp. 2d 125, 127 (E.D.N.Y. 2004).) Second, a person may submit
an application for a certificate of citizenship to CIS on Form
N-600. 8 U.S.C. § 1452; 8 C.F.R. § 341.1. If the application is
denied and all administrative appeals exhausted, the applicant
may seek judicial review in a district court. 8 U.S.C. § 1503.
See generally Anees v. Ashcroft, 2004 WL 1498075 (D. Conn.
2004). Petitioner did not present his claim of citizenship to the
IJ during the original deportation proceedings; he did not appeal
the IJ's decision to the Board of Immigration Appeals ("BIA"); he
did not present his claim of citizenship to the immigration
officer who adjudicated the reinstatement of the deportation
order; and he has never submitted an application for a
certificate of citizenship to CIS or any of its predecessor
agencies. He may not seek collateral review of a deportation
order that was not appealed to the BIA, and he may not present
his claim of citizenship in federal court without ever having
presented it to the agency for consideration.
No manifest injustice will result from enforcement of the
exhaustion requirement in this case. Unlike in Marrero
Pichardo, petitioner has not resided in the United States for a
substantial period of time with his family; rather, most of
petitioner's time in this country has been spent in prison. See Marrero Pichardo, 374 F.3d at 54.
Significantly, there is no basis in the record from which to
conclude that petitioner's "claim is virtually certain to
succeed" if considered on the merits. Id. In addition, the
government did not delay in raising the exhaustion issue. Id.
Accordingly, the court is deprived of jurisdiction in this
matter by petitioner's failure to exhaust administrative
remedies. The consolidated petitions for a writ of habeas corpus
are, therefore, dismissed. In light of this outcome, the court
need not address the other jurisdictional impediments asserted by
For the foregoing reasons, the consolidated petitions for a
writ of habeas corpus are hereby dismissed, and the temporary
stay of deportation is lifted. The Clerk of Court is directed to
close these cases.