United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
Lina Alvarez Pemberty, is an immigration detainee currently
held at the Elizabeth Detention Facility, in Elizabeth, New
Jersey. On March 9, 2018, acting by way of counsel, she filed
a petition for writ of habeas corpus, under 28 U.S.C. §
Pemberty's petition indicates that she was ordered
removed by an immigration judge on November 17, 2005, and
that the Board of Immigration Appeals dismissed her appeal on
September 12, 2007, "based on asylum." (Pet., ECF
No. 1, ¶ 4.) She asserts that her spouse filed a visa
petition on her behalf over a year ago, but that the petition
remains pending. (Id. ¶ 5.) Ms. Pemberty urges
that she is married to a U.S. citizen, has a citizen child,
and was paroled by U.S. Citizenship and Immigration Services.
(Id. ¶¶ 5-6, 13.) Accordingly, she
contends that she is eligible to adjust her status.
(Id. ¶¶ 6, 13.) Ms. Pemberty's full
description of the relief requested from the Court reads,
"Stay applicant's removal order pending review by
this Court and release on bond pending review."
(Id. ¶ 15.)
provisions of 8 U.S.C. § 1252, as modified by the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA") and the Real ID Act, grant
exclusive jurisdiction to review removal orders and related
matters to the Courts of Appeal and thus deprive District
Courts, like this one, of any such review power. See
8 U.S.C, § 1252(a)(5), (b)(9), (g); see also Vasquez
v. Aviles, 639 Fed.Appx. 898, 900-01 (3d Cir. 2016);
Gonzalez-Lora v. Warden Fort Dix FCI, 629 Fed.Appx.
400, 401 (3d Cir. 2015). In particular, § 1252(a)(5)
states that "a petition for review filed with an
appropriate court of appeals ... shall be the sole and
exclusive means for judicial review of an order of
removal." 8 U.S.C. § 1252(a)(5).
§ 1252(g) states,
Except as provided in this section and 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, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this
8 U.S.C. § 1252(g). Judges in districts across the
country, including this one, have found that this
jurisdictional bar applies to applications to stay removal.
See Fermin v. United States, No. 17-cv- 1862, 2018
WL 623645 (D.N.J. Jan. 29, 2018) (finding that "any
challenge to the validity of that removal order or a
request for a stay of that Order could be entertained
only by the Court of Appeals"); Vasquez v. United
States, No. 15-cv-3946, 2015 WL 4619805, at * (S.D.N.Y.
Aug. 3, 2015) ("District courts within this Circuit and
across the country have routinely held that they lack
jurisdiction under § 1252 to grant a stay of
removal.") Accordingly, it does not appear from the face
of the petition that this Court possesses jurisdiction to
consider Ms. Pemberty's request to review or stay her
order of removal. I express no view, however, as to whether
she could seek or obtain such relief from the United States
Court of Appeals for the Third Circuit.
Rule 4 of the Rules Governing § 2254 Cases (applied in
this proceeding under Rule 1(b) of the Rules Governing §
2254 Cases), the Court must dismiss a habeas petition
"[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief." Rules Governing § 2254 Cases,
Rule 4, 28 U.S.C.A. foil. § 2254; see also Lonchar
v. Thomas, 517 U.S. 314, 320 (1996). Generally, a
federal court may consider a petition for a writ of habeas
corpus if the petitioner is "in custody" and
alleges that the custody violates "the Constitution or
laws or treaties of the United States." 28 U.S.C. §
2241(c)(3); see also Maleng v. Cook, 490 U.S. 488,
490 (1989). Accordingly, despite the general commitment of
review to the Court of Appeals, this district court has some
limited jurisdiction to consider a challenge concerning the
propriety, and especially the prolonged duration, of a
post-removal-order immigration detention. See Jennings v.
Rodriguez, 583 U.S., 138 S.Ct. 830, 839-41 (2018);
Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001)
(concluding that "§ 2241 habeas corpus proceedings
remain available as a forum for statutory and constitutional
challenges to post-removal-period detention").
it is possible that Ms. Pemberty would like to raise such a
challenge to her detention, a cognizable claim of this type
cannot be discerned from her petition as filed. The petition does
not identify any facts or legal doctrines impugning the
constitutionality or legality of her custody. (See
ECF No. 1.) While Ms. Pemberty asks to be released, it is not
at all apparent on what basis she seeks that relief.
is a formal defect as well. The sole proper respondent in a
habeas proceeding is the person "with the ability to
produce the prisoner's body before the habeas
court"-typically, the warden of the facility where the
petitioner is detained. Rumsfeld v. Padilla, 542
U.S. 426, 434-35 (2004). Ms. Pemberty's complaint names
the U.S. Attorney General, the secretary of the Department of
Homeland Security, and me director of Immigrations and
Customs Enforcement (who are not proper respondents), but
does not name as a respondent the warden of the facility
where she is detained (who would be a proper respondent).
this proceeding will be dismissed without prejudice. Ms.
Pemberty may, within thirty (30) days, file a motion to amend
her petition, accompanied by a proposed amended petition.
Ms. Pemberty should note that
this result does not in any way preclude her from seeking
such relief from the Court of Appeals ...