Hypolite v. Immigration and Customs Enforcement (ICE)

Filing 10

ORDER of Dismissal by Judge Elizabeth D. Laporte. (Attachments: # 1 Certificate of Service)(shyS, COURT STAFF) (Filed on 6/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE HYPOLITE,

ORDER OF DISMISSAL

v.

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No. C 14-0855 EDL (PR)

Petitioner,

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IMMIGRATION AND CUSTOMS
ENFORCEMENT (“ICE”),
Respondent.
/

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For the Northern District of California

United States District Court

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Petitioner, an alien awaiting removal, has filed a pro se petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2241. Petitioner’s motion for leave to proceed in forma
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pauperis is GRANTED.
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DISCUSSION
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A.

Standard of Review

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Section 2241 allows “the Supreme Court, any justice thereof, the district courts and
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any circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28
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U.S.C. § 2241(a). An extradition may be challenged by way of a petition for writ of habeas
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corpus in federal court. See Roberts v. Reilly, 116 U.S. 80 (1885); Prasoprat v. Benov, 421
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F.3d 1009, 1013 (9th Cir. 2005). A district court shall “award the writ or issue an order
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directing the respondent to show cause why the writ should not be granted, unless it
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appears from the application that the applicant or person detained is not entitled thereto.”
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28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the
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petition are vague or conclusory, palpably incredible, or patently frivolous or false. See
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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison,
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431 U.S. 63, 75-76 (1977)).
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B.

Legal Claims
Petitioner is currently housed in the Yuba County Jail in Marysville, California. He

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states that an immigration judge has ordered him removed from the United States. He

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seeks habeas relief from the removal order, which he asserts is improper.

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However, the REAL ID Act of 2005, makes the United States Court of Appeals the

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“sole” judicial body able to review challenges to final orders of deportation, exclusion, or

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removal. Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL

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ID Act, Pub.L. No. 109-13, 119 Stat. 231, § 106(a)). Because petitioner is challenging the

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immigration judge’s order of removal, this court lacks jurisdiction over his action.
Petitioner’s sole avenue for relief is to file a petition for review in the United States Court of

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For the Northern District of California

United States District Court

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Appeals for the Ninth Circuit.
CONCLUSION

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1. In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED

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without prejudice to petitioner challenging his removal order in the United States Court of

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Appeals for the Ninth Circuit.

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2. Because reasonable jurists would not find the result here debatable, a certificate

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of appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)

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(standard for COA). The clerk shall close the file.

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IT IS SO ORDERED.
Dated: June 3 , 2014.
ELIZABETH D. LAPORTE
United States Chief Magistrate Judge

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