The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On December 20, 2004, plaintiffs Kai Hoo Loo ("Loo") and Ah Fan Chan ("Chan") petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the grounds that the defendants'*fn1 final order of removal of Loo violated various federal immigration laws ("Count One") and the Fifth Amendment Due Process Clause ("Count Two"). With respect to Chan, the petition requests that the court compel the defendants to adjudicate her and Loo's adjustment of status applications or, in the event that Loo's application had already been denied, to review the denial of Loo's adjustment application ("Count Three"). Defendants oppose the petition and further request that the court vacate its order dated December 21, 2004 staying Loo's removal. For the reasons set forth below, Loo's claims are transferred to the Second Circuit for adjudication and Chan's claims are denied without prejudice. The stay of Loo's removal remains in effect.
Loo, a Malaysian Citizen, first entered the United States on a visitor's visa in 1988. Affirmation of Ruchi Thaker in Support of Petition ("Ruchi Aff.") ¶ 4. Chan, who claims to be Loo's wife, entered the United States in 1997 on a visa. Id. Chan and Loo have two children, both of whom are citizens of the United States. Id. at ¶ 5.
Loo's visa apparently expired, and, on March 4, 1998, upon returning from a trip to Malaysia, he was detained at John F. Kennedy International Airport and deported from the United States pursuant to § 235(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1225(b)(1). That provision allows an immigration officer to "order the alien removed from the United States without further hearing or review" if the individual lacks, inter alia, a valid, unexpired visa. 8 U.S.C. § 1225(b)(1). A copy of the March 4, 1998 removal order is annexed to the Declaration of Elliot M. Schachner ("Schachner Decl.") as Exhibits 1 and 2. Undeterred, Loo reentered the country four days later on March 8, 1998. Schachner Decl. Exhibit 3. Loo did so overland by way of Canada and was not inspected at the border. Id.
Having re-entered the country, Loo lived with his wife and children for the next several years, without incident. Ruchi Aff. ¶ 25. On October 28, 2002, Chan applied to adjust her status to that of a lawful permanent resident of the United States, based on sponsorship by her employer, pursuant to INA § 245(I), 8 U.S.C. 1255(I). Ruchi Aff. ¶ 14; Schachner Decl. Exhibit 7. On that same day, October 28, 2002, Loo also applied to adjust his status to that of lawful permanent resident as a derivative beneficiary of Chan's application. Ruchi Aff. ¶ 14, Exhibit A; Schachner Decl. Exhibit 4. The defendants promptly acted on Loo's application and transferred the case from their Chicago office to their New York office in November of 2002. Ruchi Aff. Exhibit D. Two years later, on September 30, 2004, Loo was fingerprinted in connection with his application. Ruchi Aff. Exhibit B. Then, on December 16, 2004, Loo was asked to attend an interview at 26 Federal Plaza in connection with his adjustment of status application. Ruchi Aff. ¶ 14. Upon arrival, Loo was taken into custody and interviewed regarding his March 1998 illegal re-entry into the United States. Schachner Decl. Exhibit 3. On that same day, December 16, 2004, defendants issued a "Notice of Intent/Decision to Reinstate Prior Order." Id. Under the order, defendants deemed Loo removable pursuant INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) for having "illegally reentered the United States after having been previously removed . . . while under an order of removal . . . and therefore subject to removal by reinstatement of the prior order." Schachner Decl. Exhibit 5. Loo and Chan immediately started the instant proceeding and by so doing, stayed Loo's removal. To date, Loo remains in the physical custody of the defendants. Ruchi Aff. ¶ 20.
Meanwhile, in sharp contrast to Loo's swift removal, over four years from the date she submitted it, Chan's application for an adjustment of status has not yet been determined. There is no evidence in the record that defendants have even begun to process it.
With respect to Counts One and Two of the petition, three months after Loo and Chan put in their reply, Congress passed the REAL ID Act of 2005 § 106, 8 U.S.C. § 1252 (2005). The REAL ID Act, in part, amended § 242 of INA to strip federal district courts of subject matter jurisdiction over petitions for habeas corpus review of an "order of removal" entered under INA and transferred jurisdiction to the Court of Appeals for the district in which the removal order was entered. The transfer applies to petitions pending on the date of the act. See 8 U.S.C. § 1252 (2005); Marquez-Almanzar v. INS, 418 F.3d 210, 212 (2d Cir. 2005) ("[t]he REAL ID Act eliminates habeas corpus review of orders of removal and requires that any § 2241 petition pending in the district court at the time of its enactment be transferred to the court of appeals in which the petition could have been properly brought as a petition for review from a final order of removal under 8 U.S.C. § 1252."). Thus, the Court of Appeals for the Second Circuit, and not this court, has jurisdiction over Loo's petition.*fn2 Therefore, the court transfers Counts One and Two of the habeas petition to the Second Circuit Court of Appeals for review of the defendants' December 16, 2004 decision to reinstate Loo's (A#75-795-885) March 4, 1998 order of removal. Schachner Decl. Exhibit 7; see also 8 U.S.C. § 1252 (b)(9).
With respect to Count Three, the December 16, 2004 reinstatement order was made pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), which states [i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the re-entry."
8 U.S.C. § 1231(a)(5). Based on the plain language of the statute, the reinstatement of Loo's prior order of deportation precludes any relief -- including Loo's ability to have his status adjusted. Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 2431, 165 L.Ed.2d 323(2006) ("the application [of INA § 241(a)(5) denies] Fernandez-Vargas the opportunity for adjustment of status."). Thus, if the Second Circuit affirms defendants' December 16, 2004 decision to reinstate Loo's March 4, 1998 order of removal, Loo would be denied the opportunity for his status to be adjusted because, by virtue of the order of removal, Loo would not meet the admissibility requirements of 8 U.S.C. § 1255(a)(2). Id. However, should the Second Circuit vacate Loo's INA § 241(a)(5) removal order, then Loo would retain the opportunity to have his status adjusted because he may no longer be inadmissible as a matter of law. When inadmissability is an issue of law, rather than an issue of discretion, there is no jurisdictional bar to the Second Circuit determining whether defendants were in error to deny the application for adjustment. See Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (holding that a denial of a adjustment of status application based on the admissibility of the applicant is a "non-discretionary judgment" that the court has "jurisdiction to review"). Under the circumstances herein, the Second Circuit is the appropriate forum to address Loo's claim. Therefore, the court also transfers Count Three of the petition to the Second Circuit to the extent that Count Three seeks review of the defendant's denial of Loo's October 28, 2002 adjustment of status application.*fn3 8 U.S.C. 1231(a)(5).
However, the court retains jurisdiction over Count Three to the extent that Count Three requests defendants take action in adjudicating Chan's adjustment of status application because adjudicating that claim is not at the discretion of defendants -- defendants are required to do so. Therefore, the court has jurisdiction to review Chan's non-discretionary, purely legal claim that defendants are required to review her application. See Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005) (holding that 8 U.S.C. § 1252(a)(2)(B) does not strip courts of ...