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MUNOZ v. GONZALEZ

United States District Court, S.D. New York


July 11, 2005.

JUAN MUNOZ, Petitioner,
v.
ALBERTO GONZALEZ, Attorney General of the United States; and MARY ANN GANTER, as New York Director for U.S. Immigration and Customs Enforcement, Respondents.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Juan Munoz petitions this Court pursuant to 28 U.S.C. § 2241 to vacate a final order of removal by the Board of Immigration Appeals dated September 30, 2004. Respondents, however, urge this Court to dismiss the petition for want of jurisdiction pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (codified at 8 U.S.C. § 1252). The issue presented, which has not, to the Court's knowledge, yet been addressed in any reported case, is whether the Court must dismiss the petition outright or whether it can exercise jurisdiction to transfer the petition to the United States Court of Appeals for the Second Circuit. As more fully set forth below, the Court dismisses the petition because the REAL ID Act divested this Court of jurisdiction over petitions for habeas corpus, such as this one, challenging a final order of removal, and this petition was not pending at the time Congress passed the Act.

On May 11, 2005, Congress passed the REAL ID Act, which took effect that same day. REAL ID Act of 2005, Pub.L. No. 109-13, § 106(b), 119 Stat. 231 (2005). Section 106(a)(1)(B) sets forth that a "petition for review filed with the appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal," with exceptions not relevant here. The Act also provides that "the district court shall transfer . . . to the court of appeals" any case "challenging a final administrative order of removal" that is "pending in a district court" on the date of the Act's enactment. REAL ID Act of 2005, Pub.L. No. 109-13, § 106(c), 119 Stat. 231 (2005).

  Munoz filed this petition on June 29, 2005. He asks that the Court "reverse" his order of removal or reopen the underlying deportation proceedings, and that the Court stay the removal order while it considers his petition. Although Munoz also asks that respondents show cause why he should not be released from "immigration custody," respondents assert that Munoz is not in the custody of the United States Department of Homeland Security Immigration and Customs Enforcement. Therefore, his petition challenges only the order of deportation and not his physical detention.

  Because Munoz's petition challenges only an "order of removal" within the meaning of section 106 of the Act, this Court lacks jurisdiction to either stay the order of removal or adjudicate the merits of his petition. Moreover, according to the plain language of the statute, this Court may not transfer this case to the court of appeals because Munoz's petition was not pending on May 11, the date that Congress passed the REAL ID Act. Accordingly, the government's motion to dismiss Munoz's petition without prejudice to it being refiled in the Second Circuit is granted.

  SO ORDERED.

20050711

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