United States District Court, D. New Jersey
OPINION
Hon.
Susan D. Wigenton, United States District Judge
Presently
before the Court is the pro se petition for a writ
of habeas corpus of Petitioner, Arturo E., filed pursuant to
28 U.S.C. § 2241. (ECF No. 1). Also before the Court is
Petitioner's motion to re-open this matter. (ECF No. 3).
Because Petitioner has now paid the filing fee,
Petitioner's motion to re-open is granted. As a result,
this Court is required to screen the petition pursuant to
Rule 4 of the Rules Governing Section 2254 Cases, applicable
to § 2241 petitions through Rule 1(b), and determine
whether it “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief.” For the reasons set forth below, this Court
will dismiss the petition for lack of jurisdiction.
I.
BACKGROUND
Petitioner
is a native and citizen of Peru who entered the country with
his father in 1990. (Document 1 attached to ECF No. 1 at 38).
His father thereafter became a naturalized citizen, and
Petitioner became a lawful permanent resident of the United
States. (Id.). Following an extensive criminal
history, Petitioner was taken into immigration custody and
placed in detention pursuant to 8 U.S.C. § 1226(c) on or
about August 11, 2016. See Arturo E. v. Green, No.
18-9283, 2018 WL 5342720, at *1 (D.N.J. October 29, 2018). In
June 2018, an immigration judge rejected Petitioner's
claim of derivative citizenship and ordered him removed to
Peru. Id. Petitioner appealed, and the BIA affirmed
the immigration judge's finding that Petitioner was not
entitled to derivative citizenship as Petitioner's
parents were never legally married, and dismissed his appeal
on December 7, 2018. (Document 1 attached to ECF No. 1 at
37). Petitioner thereafter filed a petition for review and
was granted a stay of removal until the Third Circuit decides
his petition for review challenging the immigration
courts' rejection of his derivative citizenship claim.
(See Third Circuit Docket No. 19-1049 at Documents
3113173659, 3113180384). Petitioner's petition for review
remains pending at this time. (See Third Circuit
Docket No. 19-1049 Docket Sheet).
In
addition to doing so before the immigration courts,
Petitioner has also sought derivative citizenship through the
filing of a N-600 application with United States Citizenship
and Immigration Services (USCIS). (Document 2 attached to ECF
No. 1 at 73). USCIS denied that application in December 2018.
(Id.). Although Petitioner has filed an
administrative appeal of that decision (see Id. at
76), it does not appear that this appeal has yet run its
course.
In May
2018, Petitioner filed with this Court a petition for a writ
of habeas corpus challenging his detention under 8 U.S.C.
§ 1226(c). See Arturo E., 2018 WL 5342720 at
*1. This Court granted that petition in October 2018, and
ordered that Petitioner receive a bond hearing. Id.
at *1-3. That hearing was ultimately held on November 27,
2018. (ECF No. 1 at 6). The immigration judge denied
Petitioner bond based on multiple disciplinary reports which
the immigration judge found indicated Petitioner was a danger
to the community. (Id.).
II.
DISCUSSION
A.
Legal Standard
Under
28 U.S.C. § 2241(c), habeas relief may be extended to a
prisoner only when he “is in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). A federal court
has jurisdiction over such a petition if the petitioner is
“in custody” and the custody is allegedly
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3);
Maleng v. Cook, 490 U.S. 488, 490 (1989). As
Petitioner is currently detained within this Court's
jurisdiction, by a custodian within the Court's
jurisdiction, and asserts that his continued detention
violates due process, this Court has jurisdiction over his
claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998);
Braden v. 30th Judicial Circuit Court, 410 U.S. 484,
494-95, 500 (1973); see also Zadvydas v. Davis, 533
U.S. 678, 699 (2001).
Pursuant
to Rule 4 of the Rules Governing Section 2254 Cases,
applicable to Section 2241 petitions through Rule 1(b), the
courts are required to preliminarily review habeas petitions
and determine whether it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief.” Pursuant to this rule, a district
court is “authorized to dismiss summarily any habeas
petition that appears legally insufficient on its
face.” McFarland v. Scott, 512 U.S. 849, 856
(1994).
B.
Analysis
In his
newly filed habeas petition, Petitioner seeks not to
challenge the length or propriety his current period of
immigration detention itself, but instead seeks to challenge
the determination of the immigration courts that he is not a
derivative United States Citizen, which he contends will
require his release if determined in his favor. In so doing,
Petitioner seeks to challenge not only his current period of
immigration detention, but also his underlying
administratively final order of removal. In passing the REAL
ID Act, Congress greatly restricted the jurisdiction of
district courts in relation to the review of removal
proceedings and facts related to an alien's order of
removal. See 8 U.S.C. § 1252. Pursuant to the
Act,
[n]otwithstanding any other provision of law (statutory or
nonstatutory), including [28 U.S.C. § 2241], or any
other habeas corpus provision, and [28 U.S.C. §§
1361 and 1651, the statutes which provide the basis for
mandamus jurisdiction, ] a petition for review filed with an
appropriate court of appeals in accordance with this section
shall be 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
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