United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
Petitioner, Henry Alexander Escobar-Bojorquez, is in the custody of the Newark Office of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") at the Elizabeth Detention Center. According to the Complaint, ICE seeks to summarily deport the Petitioner because he illegally entered the United States on June 6, 1999, and was removed on June 7, 1999. ICE relies on Section 1231(5) of the INA, which permits the reinstatement of removal orders against removed aliens who have illegally reentered the country. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Yesterday, August 13, 2014, Petitioner filed his Petition and emergent order to show cause for a stay of deportation. This morning I heard oral argument by counsel for the Petitioner and the United States. There has been no briefing, but at oral argument, the parties provided citations to case law, which the Court has supplemented with its own research.
My decision on the emergent application is intertwined with my initial screening of this habeas petition for jurisdictional and other defects. With respect to screening the petition, 28 U.S.C. § 2243 provides:
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.
"[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).
Because I find that, under the REAL ID Act, I lack jurisdiction over this habeas petition, I dismiss it. As I read the Court of Appeals case law, that Court's jurisdiction has been interpreted expansively, and this Court's jurisdiction narrowly. While I do not presume to define the Court of Appeals' jurisdiction, as I interpret that Court's cases, the REAL ID Act lodges exclusive jurisdiction there.
A. Reinstatement of a prior renewal order under Section 1231(5)
According to the Petition, ICE seeks to deport the Petitioner based on his illegal presence in the United States after a prior order of removal entered on June 7, 1999. ICE is proceeding under Section 1231(5) of the INA:
(5) Reinstatement of removal orders against aliens illegally reentering
If 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 ...