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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 STEVE HYPOLITE, ORDER OF DISMISSAL v. 8 9 No. C 14-0855 EDL (PR) Petitioner, 7 IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”), Respondent. / 11 For the Northern District of California United States District Court 10 12 Petitioner, an alien awaiting removal, has filed a pro se petition for a writ of habeas 13 corpus pursuant to 28 U.S.C. § 2241. Petitioner’s motion for leave to proceed in forma 14 pauperis is GRANTED. 15 DISCUSSION 16 A. Standard of Review 17 Section 2241 allows “the Supreme Court, any justice thereof, the district courts and 18 any circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28 19 U.S.C. § 2241(a). An extradition may be challenged by way of a petition for writ of habeas 20 corpus in federal court. See Roberts v. Reilly, 116 U.S. 80 (1885); Prasoprat v. Benov, 421 21 F.3d 1009, 1013 (9th Cir. 2005). A district court shall “award the writ or issue an order 22 directing the respondent to show cause why the writ should not be granted, unless it 23 appears from the application that the applicant or person detained is not entitled thereto.” 24 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the 25 petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 26 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 27 431 U.S. 63, 75-76 (1977)). 28 1 2 B. Legal Claims Petitioner is currently housed in the Yuba County Jail in Marysville, California. He 3 states that an immigration judge has ordered him removed from the United States. He 4 seeks habeas relief from the removal order, which he asserts is improper. 5 However, the REAL ID Act of 2005, makes the United States Court of Appeals the 6 “sole” judicial body able to review challenges to final orders of deportation, exclusion, or 7 removal. Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL 8 ID Act, Pub.L. No. 109-13, 119 Stat. 231, § 106(a)). Because petitioner is challenging the 9 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 11 For the Northern District of California United States District Court 10 Appeals for the Ninth Circuit. CONCLUSION 12 13 1. In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED 14 without prejudice to petitioner challenging his removal order in the United States Court of 15 Appeals for the Ninth Circuit. 16 2. Because reasonable jurists would not find the result here debatable, a certificate 17 of appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) 18 (standard for COA). The clerk shall close the file. 19 20 IT IS SO ORDERED. Dated: June 3 , 2014. ELIZABETH D. LAPORTE United States Chief Magistrate Judge 21 22 G:\PRO-SE\EDL\HC.14\Hypolite8554.dsm.wpd 23 24 25 26 27 28 2

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