United States District Court, S.D. New York
July 11, 2005.
JUAN MUNOZ, Petitioner,
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
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
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
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