United States District Court, S.D. New York
June 1, 2005.
ROHAN ANTHONY ELLIS, Petitioner,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents.
The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge
MEMORANDUM AND ORDER
On January 7, 2005, Rohan Anthony Ellis, a citizen of Jamaica,
filed with this Court a petition for a wit of habeas corpus under
28 U.S.C. § 2241. He alleged that he was being detained by
immigration authorities and was scheduled to be removed to
Barbados. He further alleged that any deportation should be
stayed because he then had pending a petition under section
212(c), 8 U.S.C. § 1182(c), for advance permission to return to
an unrelinquised domicile.
On January 14, the day the petition was received in Chambers, I
set the matter down for a hearing on January 25. At the January
25, hearing, the government advised this Court that Mr. Ellis had
been removed from the country on Saturday, January 8, one day
after the filing of the petition. The government acknowledged
that this did not render his petition moot.
By letter application dated May 23, 2005, the government now
seeks transfer of the habeas petition to the United States Court
of Appeals for the Second Circuit, pursuant to the Real ID Act,
which is part of PL 109-13, a statute that became law on May 11,
2005. Section 106(a)(1)(B) 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
(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. . . .
REAL ID Act § 106(a)(1)(B).
Mr. Ellis's petition was filed under section 2241 and is
facially covered by amended section 242(a). The REAL ID Act
further provides the district court "shall transfer"
immigration-related habeas petitions pending on the date of
enactment to the Court of Appeals for the Circuit in which a
petition for review could have been filed:
(c) 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
[Act], then the district court shall transfer the
case . . . to the court of appeals for the circuit in
which a petition for review could have been properly
filed under section 242(b)(2) of the [INA]. . . . The
court of appeals shall treat the transferred case as
if it had been filed pursuant to a petition for
review under such section 242, except that subsection
(b)(1) of such section shall not apply.
REAL ID Act § 106(c). Upon transfer, the habeas petition is
treated as if it had been originally filed as a petition for
The plain text of section 106(a)(1)(B), read in conjunction
with the provision governing effective date (quoted below), makes
it plain that the exclusive jurisdiction provision (b) EFFECTIVE DATE. 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.
Accordingly, the government's application is granted. The Clerk
is directed to transfer the pending petition to the United States
Court of Appeals for the Second Circuit and administratively
close the matter in the district court.
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