Manasseh A. Philip v. Randy L. Tews et al

Filing 8

ORDER SUMMARILY DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION by Judge Cormac J. Carney. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MANASSEH A. PHILIP,
Petitioner,

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v.

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Case No. CV 16-01987 CJC (AFM)

RANDY L. TEWS, Warden,

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ORDER SUMMARILY DISMISSING
HABEAS PETITION FOR LACK OF
SUBJECT MATTER JURISDICTION

Respondent.

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On March 23, 2016, petitioner filed a Petition for Writ of Habeas Corpus by

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a Person in Federal Custody (28 U.S.C. § 2241). Petitioner recently served a 60-

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month federal prison term pursuant to a conviction for illegal reentry after removal

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from the United States. He is now in custody at the Adelanto Detention Center in

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Adelanto, California, pending his deportation from the United States. In this action,

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petitioner seeks a “stay of deportation.”1

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The Real ID Act, Pub. L. No. 109-13, 119 Stat. 231, 310-311 (May 11,

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2005), eliminated district courts’ habeas corpus jurisdiction, including jurisdiction

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Petitioner recently has filed three other habeas petitions. The Petition in CV 16-1262
CJC (AFM) is still pending. The Petition in CV 16-1987 CJC (AFM) was transferred in
the interests of justice to the United States District Court for the North District of Texas.
The Petition in CV 16-2613 CJC (AFM) was summarily dismissed for lack of subject
matter jurisdiction.

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under 28 U.S.C. § 2241, over final orders of removal and vested jurisdiction over

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such orders exclusively in the circuit courts of appeals. See, e.g., Alvarez-Barajas

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v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2006) (“[T]he Act makes the circuit

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courts the ‘sole’ judicial body able to review challenges to final orders of

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deportation, exclusion, or removal. To accomplish this streamlined judicial review,

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the Act eliminated habeas jurisdiction, including jurisdiction under 28 U.S.C.

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§ 2241, over final orders of deportation, exclusion, or removal.” (citation omitted));

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see also Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) (“The REAL ID Act

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. . . eliminated district court habeas corpus jurisdiction over orders of removal and

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vested jurisdiction to review such orders exclusively in the courts of appeals.”)

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Under the foregoing authorities, the Court must dismiss the Petition without

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prejudice for lack of habeas jurisdiction.

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The only remaining question is whether this action should be transferred to

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the circuit court of appeals under 28 U.S.C. § 1631.

“Because the statute’s

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language is mandatory, federal courts should consider transfer without motion by

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the parties.”

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“Transfer is appropriate under § 1631 if three conditions are met: (1) the

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transferring court lacks jurisdiction; (2) the transferee court could have exercised

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jurisdiction at the time the action was filed; and (3) the transfer is in the interest of

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justice.” Id.

Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001).

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The Court initially determined that the first condition had been met, but

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could not determine whether the remaining conditions had been met. Accordingly,

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the Court ordered respondent to file a response as to whether this action should be

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transferred to the Ninth Circuit Court of Appeals under 28 U.S.C. § 1631.

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On April 26, 2016, respondent filed a response stating that this action should

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not be transferred because the Ninth Circuit (or any other circuit court of appeals)

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could not have exercised jurisdiction at the time this action was filed. (Response

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at 1.) The response included a copy of decision and order issued by an immigration
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judge on January 31, 1992. (Response, Exhibit A.) The immigration judge ordered

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petitioner, a native of Sri Lanka, deported from the United States because he had

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been convicted of two crimes of moral turpitude: He was convicted in 1988 in a

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Texas state court of first-degree aggravated sexual assault of a child under 14 years

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and second-degree indecency with a child younger than 17 years. (Id.) Petitioner

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did not appeal the immigration judge’s decision. (Response at 2.)

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Respondent contends that the circuit court of appeals could not have

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exercised jurisdiction at the time this action was filed for two independent reasons.

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First, petitioner failed to exhaust his available administrative remedies as to the

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immigration judge’s 1992 decision. Second, a petition for review in the circuit

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court would be untimely. (Respondent also points out that the Ninth Circuit would

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be the wrong venue for petitioner’s request for stay of deportation because the

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immigration judge’s decision was issued within the territorial limits of the Fifth

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Circuit Court of Appeals.)

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inappropriate to transfer this action.

The Court agrees that both reasons render it

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An alien must exhaust administrative remedies before seeking review of an

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order of removal. See 8 U.S.C. § 1252(d)(1) (A court may review a final order of

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removal only if the alien has exhausted all administrative remedies available to the

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alien as of right). Petitioner’s failure to exhaust his administrative remedies with

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respect to the immigration judge’s 1992 deportation order to the Board of

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Immigration Appeals means that the circuit court of appeals could not have

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exercised jurisdiction at the time this action was filed. See Chung Young Chew v.

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Boyd, 309 F.2d 857, 860-61 (9th Cir. 1962) (“Failure to take an available appeal to

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the Board [of Immigration Appeals] from an order of deportation constitutes a

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failure to exhaust administrative remedies, thereby depriving a court of appeals of

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jurisdiction to review any aspect of such order.”); see also Hernandez v.

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Immigration and Naturalization Service, 539 F.2d 384, 386 (5th Cir. 1976) (per

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curiam) (petitioner’s failure to exhaust administrative remedies with respect to
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immigration judge’s decision resulted in lack of jurisdiction in the circuit court of

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appeals).

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Even assuming that administrative exhaustion were not required, the circuit

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court of appeals still could not have exercised jurisdiction at the time this action

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was filed because it is extremely untimely. A petition for review of a final order of

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removal must be filed not later than 30 days after the date of the final order of

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removal. See 8 U.S.C. § 1252(b)(1). The 30-day time limit is mandatory and

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jurisdictional, and it cannot be waived. See Stone v. INS, 514 U.S. 386, 405 (1995)

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(time limit for seeking judicial review of a final deportation order is mandatory and

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jurisdictional, and it is not subject to equitable tolling); see also Magtanong v.

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Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (per curiam) (30-day deadline to file

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petition for review of final order of removal is mandatory and jurisdictional, and it

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cannot be forfeited or waived); Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676

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(5th Cir. 2003) (same). Here, the immigration judge’s decision was issued on

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January 31, 1992, and petitioner did not file an appeal with the Board of

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Immigration Appeals. Thus, the immigration judge’s decision became final on

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March 2, 1992, which was the next business day after 30 days. See 8 U.S.C.

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§ 1101(a)(47)(B) (order of deportation becomes final upon an affirmance by the

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Board of Immigration Appeals or the expiration of the period in which the alien is

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permitted to seek review by the Board, whichever is earlier); 8 C.F.R. § 1003.38(b)

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(alien has 30 calendar days to appeal immigration judge’s decision to the Board of

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Immigration Appeals). This Petition was not filed until March 23, 2016, more than

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24 years later.
In sum, transfer of this action under 28 U.S.C. § 1631 is unwarranted.

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ORDER

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IT THEREFORE IS ORDERED that this action be summarily dismissed

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without prejudice for lack of subject matter jurisdiction, pursuant to Rules 1(b) and

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4 of the Rules Governing Section 2254 Cases in the United States District Courts.2
LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: April 29, 2016

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CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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Presented By:

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Alexander F. MacKinnon
United States Magistrate Judge

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Rule 1(b) provides that the district court may apply Rule 4 to “a habeas corpus petition not
covered by” 28 U.S.C. § 2254, such as a habeas petition governed by 28 U.S.C. § 2241.
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