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ELLIS v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

United States District Court, S.D. New York


June 1, 2005.

ROHAN ANTHONY ELLIS, Petitioner,
v.
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 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. . . .
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 review.

  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.

  SO ORDERED.

20050601

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