United States District Court, D. New Jersey
B. KUGLER, U.S.D.J.
Gary Lall, an inmate confined at FCI Fort Dix, in Fort Dix,
New Jersey, filed a petition under 28 U.S.C. § 2241,
purporting to challenge his immigration detention.
(See ECF No. 1). The Court examined the Petition in
accordance with Rule 4 of the Rules Governing Section 2254
Cases, applicable to § 2241 cases through Rule 1(b), and
dismissed his petition for a lack of jurisdiction on July 9,
2018. (ECF No. 2). Now before the Court is Petitioner's
motion to alter judgment (ECF Nos. 5, 6) and two motions
to expedite with regard to his habeas petition (ECF Nos. 4,
7). For the reasons discussed below, the Court will deny
Petitioner's motion to alter judgment and deny his
motions to expedite as moot.
discussed more thoroughly in this Court's earlier
Opinion, Petitioner is a native of Trinidad who entered the
United States on September 5, 1988. (See ECF No. 1,
at 12). On July 5, 1991, Petitioner took the oath of
allegiance, and on July 26, 1991, he received his certificate
of citizenship. (See ECF No. 1 at Ex. B). Following
a trial in the Eastern District of New York, Petitioner was
convicted of a number of drug charges and received a sentence
of 210 months imprisonment on April 11, 2006. See United
States v. Adams, 316 Fed.Appx. 60, 61-62 (2d Cir. 2009);
(See ECF No. 1, 1). Petitioner is currently serving
his sentence at FCI Fort Dix.
about December 6, 2012, Petitioner received a notice of
intent to cancel his certificate of citizenship.
(See ECF No. 1, at 11). On January 29, 2013, United
States Citizenship and Immigration Services
(“USCIS”) issued a final decision cancelling
Petitioner's certificate of citizenship. (See
ECF No. 1, at Ex. I). Petitioner filed an appeal to the
Administrative Appeals Office (“AAO”) and
received a denial on August 28, 2015. (See ECF No.
1, at 11). Petitioner filed a motion for reconsideration in
September 2015, which Petitioner claims is still pending
before either the AAO or the USCIS. (See id.).
February 26, 2018, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 challenging
USCIS's decision to cancel his certificate of
citizenship. This Court dismissed the petition for lack of
jurisdiction because Petitioner is a federal prisoner
presently serving a federal criminal sentence and is
not “in custody” for purposes of § 2241
merely because the Government also lodged an immigration
detainer against him. James v. Dist. Attorney York
Cnty., 594 Fed.Appx. 66, 67 (3d Cir. 2015) (citing
Maleng v. Cook, 490 U.S. 488, 490 (1989)); Adams
v. Apker, 148 Fed.Appx. 93, 95 (3d Cir. 2005)).
the Court found that it lacked jurisdiction to grant
Petitioner's requests to reverse the decision cancelling
his certificate of citizenship and to remove the detainer on
him. Assuming that Petitioner seeks to challenge an order of
removal, pursuant to the REAL ID Act, this Court does not
have the authority to grant such requests. 8 U.S.C. §
1252(a)(5) (declaring that a petition for review with an
appropriate Court of Appeals in accordance with the Act is
the sole and exclusive means for judicial review of an order
of removal and matters dependent thereon); Kolkevich v.
Att'y Gen. of U.S., 501 F.3d 323, 326 (3d Cir. 2007)
(finding that the REAL ID Act “eliminated the
availability of habeas corpus relief in the district courts
for aliens seeking to challenge orders of removal.”).
before the Court is Petitioner's motion to alter
judgment. (ECF No. 5, 6). In his submission, Petitioner
argues that although his petition was “not cognizable
under 28 U.S.C. § 2241 . . . the Court failed to discern
whether ‘jurisdiction' would lie under 8 U.S.C.
§ 1503(a); 28 U.S.C. § 1361, [or] the
Administrative Procedures Act (“APA”) 5 U.S.C.
§ 701 et seq.” as a federal question
under 28 U.S.C. § 1331. (ECF No. 6, at 2-4). Under these
statutes, Petitioner contends that the Court may review the
decision to cancel his citizenship or compel either the AAO
or the USCIS to expedite a reconsideration of his citizenship
cancellation. (ECF No. 6, at 2-6). Effectively, Petitioner
acknowledges that he seeks relief beyond the scope of a
§ 2241 petition and asks the Court to re-characterize or
consider his petition as an ordinary civil complaint under
§ 1331. (ECF No. 6, at 2-3).
arguendo that Petitioner is not yet subject to an
order of removal and that the Government has not yet
initiated removal proceedings, a district court under
certain circumstances may have jurisdiction to review a
decision of the USCIS or expedite an agency decision on a
matter, if Petitioner had sought such relief in a civil
complaint. See, e.g., Bourahima Quattara v. U.S.
Citizenship & Immigration Servs., No.12-0263, 2012
WL 395726, at *3 (D.N.J. Feb. 2, 2012) (referring to case law
in which a Petitioner might be able to obtain review of his
derivative citizenship claim by filing a declaratory judgment
action - rather than a habeas petition - in the appropriate
district court); Omar v. Mueller, 501 F.Supp.2d 636,
639 (D.N.J. 2007) (discussing APA claims and mandamus
jurisdiction in the context of a USCIS decision).
are however, meaningful differences between the filing of a
habeas petition and a civil complaint. The filing fee for a
habeas petition is $5.00, and inmates who receive in
forma pauperis status do not have to pay the
filing fee. Dixon v. Zickefoose, No. 12-2320, 2012
WL 4845661, at *2 n.1 (D.N.J. Oct. 10, 2012) (citing
Santana v. United States, 98 F.3d 752 (3d Cir.
1996)). In contrast, the filing fee for a civil complaint is
$400.00, but inmates who proceed in forma
pauperis are required to pay a $350.00 filing fee from
their inmate accounts in automatically deducted monthly
installments. Id. (citing 28 U.S.C. § 1915(b)).
if a prisoner has, on three or more occasions while
incarcerated, brought an action or appeal in a federal court
that was dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from immune defendants, then the
prisoner may not bring another action in forma pauperis
unless he or she is in imminent danger of serious physical
Id. (citing 28 U.S.C. § 1915(g)). In light of
these differences, the “Court will not sua
sponte recharacterize this pleading as a civil
complaint.” E.g. id.; Bourahima Quattara
v. U.S. Citizenship & Immigration Servs., No.
12-0263, 2012 WL 395726, at *1 (D.N.J. Feb. 2, 2012); see
also Cohen v. Lappin, 402 Fed. App'x 674, 676 (3d
Cir. 2010) (affirming District Court's determination not
to re-characterize § 2241 petition as civil complaint).
Petitioner has only paid the $5.00 filing fee for a habeas
petition. If Petitioner wishes to bring a civil complaint, he
may file a complaint in a new docket number and either prepay
the $400.00 filing fee or apply to proceed in forma
foregoing reasons, the Court will deny Petitioner's
motion to alter judgment without prejudice to any right
Petitioner may have to bring a declaratory judgment or other
civil action in the appropriate court and deny
Petitioner's motions to ...