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Walker v. Gonzalez

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 31, 2006

JEFFREY A. WALKER, PETITIONER,
v.
ALBERTO GONZALEZ, ATTORNEY GENERAL, UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge

DECISION AND ORDER

Currently before the Court is Petitioner Jeffrey Walker's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Dkt. No. 1. Petitioner is confined at FCI Ray Brook.

Petitioner has been ordered removed by Order of Immigration Judge Rango. Petitioner's appeal to the Board of Immigration Appeals was dismissed on November 10, 1993. This Petition was filed on September 14, 2005. See Dkt. No. 1.

On May 11, 2005, Congress enacted the Real ID Act (the "Act"), which became effective that same day. See Real ID Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231 (2005). Section 106 of the Act amended 8 U.S.C. § 1252 by adding the following jurisdictional provision:

(5) Exclusive means of review

Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, 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*fn1 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 chapter, . . .

8 U.S.C. § 1252(a)(5).*fn2

Thus, to the extent that Petitioner is directly or indirectly challenging his removal order, he may not do so in this Court. See Munoz v. Gonzalez, No. 05 Civ. 6056, 2005 WL 1644165, *1 (S.D.N.Y. July 11, 2005) (district court lacks jurisdiction to review merits of a petition challenging a removal order or to stay the order of removal); Robinson v. Mule, 05-CV-0536A, 2005 WL 1971893, *1 (W.D.N.Y. Aug. 15, 2005) (same); McDonald v. Mule, No. 05-CV-6367, 2005 WL 1971896, *1 (W.D.N.Y. Aug. 9, 2005) (same).

Accordingly, for all the above-stated reasons, the Court dismisses the Petition without prejudice to Petitioner refiling it in the appropriate court of appeals.

WHEREFORE, the Court hereby ORDERS that Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, in which he is seeking review of an order removal, is DENIED AND DISMISSED WITHOUT PREJUDICE to Petitioner refiling the Petition in the appropriate Circuit Court of Appeals; and the Court further

ORDERS that the Clerk of the Court serve a copy of this Order on Petitioner.

IT IS SO ORDERED.


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