Torvisco v. Missouri Field Office Director, Immigration and Customs Enforcement et al

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's Application for a Certificate of Appealability Requesting Stay Pending Appeal [Doc. # 9 ] is DENIED. IT IS FURTHER ORDERED that petitioner's motion for leave to proceed in forma pauperis on appeal [Doc. # 8 ] is GRANTED. IT IS FURTHER ORDERED that petitioner is DENIED a certificate of appealability if he appeals this Order. Signed by District Judge Catherine D. Perry on October 24, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARLOS HUMBERTO TORVISCO,
Petitioner,
v.
MISSOURI FIELD OFFICE
DIRECTOR, IMMIGRATION AND
CUSTOMS ENFORCEMENT, et al.,
Respondents.

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No. 4:13-CV-1104-CDP

MEMORANDUM AND ORDER
Before the Court are petitioner’s motion for leave to proceed in forma pauperis
on appeal [Doc. #8] and “Application for a Certificate of Appealability Requesting
Stay Pending Appeal” [Doc. #9]. The Court will liberally construe petitioner’s
application as a motion to reconsider the Court’s September 16, 2013 Memorandum
and Order and Order of Dismissal [Docs. #5 and #6],1 which are incorporated herein
by reference.
In support of his motion to reconsider, petitioner states that “it appears this
court did not specifically address the issue additted [sic] in respondent’s return:
‘Torvisco is eligible to adjust his status under a family based application.’” In

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The Order of Dismissal denies petitioner a certificate of appealability.

addition, petitioner claims that the Immigration and Customs Enforcement Agency’s
June 17, 2011 memorandum issued by ICE Director, John Mortan, “takes on the
persona of law,” thereby giving life to his habeas corpus claim.
Discussion
If a federal court denies a habeas corpus application on procedural grounds
without reaching the underlying constitutional claims, the court is not required to
issue a certificate of appealability unless the petitioner demonstrates that jurists of
reason would find it debatable: (1) whether the application states a valid claim of the
denial of a constitutional right; and (2) whether the court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
As this Court explained in its September 16, 2013 Memorandum and Order
[Doc. #5], Congress has vested the federal court of appeals with exclusive jurisdiction
over orders of removal. See 8 U.S.C. § 1252(a)(5), (b)(2) and (9), and (g); see also
Xiaoyuan Ma v. Holder, 860 F.Supp.2d 1048, 1059-60 (N.D. Cal. 2012)(habeas
request to stay removal order falls within the ambit of § 1252(g), which divests the
district court of habeas jurisdiction); Scott v. Napolitano, 618 F.Supp.2d 186, 191
(E.D.N.Y. 2009)(§ 1252 operates to strip district courts of jurisdiction to stay orders
of removal). As such, petitioner’s sole recourse relative to staying his order of
deportation lies with the United States Court of Appeals for the Eighth Circuit.
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Moreover, concerning petitioner’s request for an order directing his release
from ICE custody pending approval of his I-130 petition, the Court explained that
petitioner had failed to state a cognizable basis for habeas corpus jurisdiction under
28 U.S.C. § 2241. Rather than assert a violation of his Constitutional rights,
petitioner appealed to this Court’s exercise of discretion, purportedly based on the
June 17, 2011 ICE memorandum, encouraging the use of prosecutorial discretion.
This is not a basis for federal court habeas jurisdiction, even if it could be said that
petitioner is “eligible to adjust his status under a family based application.”
For the above-stated reasons, the Court does not find petitioner has
demonstrated that jurists of reason would find it debatable that he stated a valid claim
relating to the denial of a constitutional right or that the Court’s procedural ruling was
incorrect.

As such, there are no grounds to issue petitioner a certificate of

appealability or to alter the Order of Dismissal in this case, and therefore his motion
for reconsideration will be denied.
Last, the Court will grant petitioner’s motion for leave to proceed in forma
pauperis on appeal.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s “Application for a Certificate
of Appealability Requesting Stay Pending Appeal” [Doc. #9] is DENIED.
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IT IS FURTHER ORDERED that petitioner’s motion for leave to proceed
in forma pauperis on appeal [Doc. #8] is GRANTED.
IT IS FURTHER ORDERED that petitioner is DENIED a certificate of
appealability if he appeals this Order.
Dated this 24th day of October, 2013.

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UNITED STATES DISTRICT JUDGE

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