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Castro-Diaz v. Board of Immigration Appeals

United States District Court, Third Circuit

December 4, 2013

MARIO CASTRO-DIAZ, Petitioner,
v.
BOARD OF IMMIGRATION APPEALS, et al., Respondents.

OPINION

KEVIN McNULTY, District Judge.

I. INTRODUCTION

The petitioner, Mario Castro-Diaz, is a citizen of Peru who has been ordered removed from the United States. He is currently detained at the Essex County Correctional Facility in Newark, New Jersey. Mr. Castro-Diaz, appearing pro se, has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition challenges the order of removal and also argues that he is entitled to a bond hearing. To the extent that the petition challenges the order of removal, this Court lacks jurisdiction over it; this claim will be severed and transferred to the United States Court of Appeals for the Third Circuit. The remainder of the petition will remain in this Court, but will be administratively terminated without prejudice, because Mr. Castro-Diaz has failed to either pay the Court's filing fee or to submit a complete application to proceed in forma pauperis. If and when that deficiency is corrected, this Court will hear the remaining claim.

II. BACKGROUND

Mr. Castro-Diaz was released from the Ocean County Jail after completing service of a sentence for two counts of child neglect. On June 14, 2013, an Immigration Judge ordered that Mr. Castro-Diaz be removed from the United States. The Board of Immigration Appeals ("BIA") affirmed the decision of the Immigration Judge on October 15, 2013.

On November 13, 2013, Mr. Castro-Diaz filed the current habeas petition in this Court by delivering it to the prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988). His petition seeks judicial review of the order of removal and a bond hearing.

III. STANDARD FOR SUA SPONTE REVIEW

The relevant statute, 28 U.S.C. § 2243, provides for the Court's initial screening of a habeas petition:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

Because Mr. Castro-Diaz is proceeding pro se, his petition is held to less stringent standards than a pleading drafted by a lawyer. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) ("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ("[W]e construe pro se pleadings liberally.") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, "a district court is authorized to dismiss a habeas petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Lonchar v. Thomas, 517 U.S. 314, 320 (1996).

IV. DISCUSSION

A. Challenge to Removal

Mr. Castro-Diaz's petition expressly asks this Court to review the legality of his order of removal. The REAL ID Act, enacted May 11, 2005, effectively strips district courts of jurisdiction over habeas petitions for review of orders of removal, and lodges exclusive jurisdiction in the Courts of Appeals:

Notwithstanding any other provision of law (statutory or nonstatutory), 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 in accordance with this section shall he the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to ...

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