Ngeth v. US Department of Homeland Security, US Immigration and Customs Enforcement, Field Office Director, et al

Filing 5

ORDER re: 1 Petition for Writ of Habeas Corpus. Clerk to transfer this action to the US Court of Appeals for the First Circuit and close the case here.The court believes the issues in Ngeth's petition and motion warrant immediate attention by the Court of Appeals. So Ordered by Chief Judge Joseph N. Laplante.(dae)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sitha Ngeth
v.

Civil No. 12-cv-349-JL

Dorothy E. Herrera-Niles, et al.

SUMMARY ORDER AND ORDER OF TRANSFER UNDER 28 U.S.C. § 1631
Sitha Ngeth, a Cambodian national currently being held at
the Strafford County House of Corrections by United States
Immigration and Customs Enforcement (“ICE”), has filed a petition
for writ of habeas corpus under 28 U.S.C. § 2241.

Ngeth,

asserting that he is under threat of imminent deportation by ICE,
has also filed an emergency motion for stay of removal.

Because

Ngeth’s petition and motion challenge an order of removal entered
against him, this court lacks jurisdiction to entertain them.
U.S.C. §§ 1252(a)(5), 1252(g).

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Rather than dismiss the action,

however, the court transfers it to the United States Court of
Appeals for the First Circuit pursuant to 28 U.S.C. § 1631.
Ngeth alleges that after his conviction for assault and
battery in 1996, ICE (then known as the United States Immigration
and Naturalization Service, or “INS”) instituted removal
proceedings against him.

In 2000, an immigration judge found

Ngeth removable, but granted him deferral of removal under the
Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc.
No. 100-20, 1465 U.N.T.S. 85.

See 8 C.F.R. § 208.17 (1999).

On

appeal, the Board of Immigration Appeals (“BIA”) affirmed the
immigration judge’s order insofar as it found Ngeth removable,
but reversed the immigration judge’s deferral of removal.

Ngeth

alleges that although he was in INS custody at the time the BIA
rendered its decision, he received neither the BIA’s decision nor
notice of his right to appeal that decision to the Court of
Appeals.

This, he says, denied him due process in violation of

the Fifth Amendment to the United States Constitution.

Ngeth

further alleges that rather than deporting him immediately,
INS/ICE released him from detention in 2001 and placed him under
an order of supervision.

Only a month ago–-eleven years after

releasing him--ICE again detained him pursuant to that removal
order, and, Ngeth alleges, will likely deport him either today or
tomorrow.
The so-called REAL ID Act of 2005 severely limited district
court jurisdiction over challenges to removal orders.

In

pertinent part, the Act provides that “a petition for review
filed with an appropriate court of appeals . . . shall be the
sole and exclusive means for judicial review of an order of
removal . . . .”

8 U.S.C. § 1252(a)(5).

that,
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It further mandates

[e]xcept as otherwise provided in this section and
notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of Title 28
. . . no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to
. . . execute removal orders against any alien under
this chapter.
Id. § 1252(g).

As several other judges within this Circuit have

observed, these provisions deprive this court of jurisdiction “to
entertain a challenge to a removal order or to the execution of a
removal order,” De Gonzalez v. Holder, No. 12-cv-11539, 2012 WL
3610958, *1 (D. Mass. Aug. 20, 2012), or even “to stay a final
order of removal,” Alves Da Cruz v. Riordan, No. 11-cv-10818,
2011 WL 1793381, *2 (D. Mass. May 11, 2011); see also Tejada v.
Cabral, 424 F. Supp. 2d 296, 298 (D. Mass. 2006) (“One thing the
REAL ID Act certainly did do . . . was emphatically to declare
that this Court was not in any way to impede orders of
removal.”).

They do not, however, “preclude habeas review over

challenges to detention that are independent of challenges to
removal orders.”

Hernandez v. Gonzales, 424 F.3d 42, 42 (1st

Cir. 2005) (quoting H.R. Cong. Rep. No. 109-72, at 2873 (May 3,
2005)).
Though presented as a challenge to his detention, Ngeth’s
habeas petition is not “independent of” his challenges to the
removal order entered against him.

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As Ngeth’s counsel conceded

in an ex parte telephone conference with the court, the sole
reason for his detention is the existence of the removal order.
Indeed, Ngeth’s claims in essence argue that because of alleged
infirmities in the process by which the removal order was
entered, the order itself should be invalidated, thus precluding
ICE from legally detaining him.

That is just the type of

argument that this court has no jurisdiction to entertain.

See

De Gonzalez, 2012 WL 3610958 at *1.
As the court noted in De Gonzalez, however, upon determining
that it lacks jurisdiction over a matter, “including a petition
for review of administrative action”–-which is, in this court’s
view, the proper characterization of Ngeth’s petition for writ of
habeas corpus–-“the court shall, if is in the interest of
justice, transfer such action or appeal to any other such court
in which the action or appeal could have been brought at the time
it was filed or noticed.”
2012 WL 3610958 at *1.

28 U.S.C. § 1631; see De Gonzalez,

Because the court believes the issues

presented in Ngeth’s petition and motion warrant immediate
attention by the Court of Appeals, which, as already discussed,
has “sole and exclusive” jurisdiction to address those filings,
8 U.S.C. § 1252(a)(5), it will transfer Ngeth’s entire action to
that court.

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For the foregoing reasons, the clerk shall transfer this
action to the United States Court of Appeals for the First
Circuit, and close the case here.
SO ORDERED.

_____________________________
Joseph N. Laplante
United States District Judge
Dated: September 11, 2012
cc:

Melanie Marie Chaput, Esq.

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