MARTINEZ v. HOLDER
OPINION. Signed by Chief Judge Jerome B. Simandle on 7/16/2014. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 14-4255 (JBS)
Jason Martinez, Pro Se
P.O. Box 420
Fairton, NJ 08320
SIMANDLE, Chief Judge
Petitioner filed a Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241 challenging his future deportation
proceedings. For the following reasons, this Court will dismiss
Petitioner neither prepaid the $5.00 filing fee for a
habeas petition as required by Local Civil Rule 54.3(a), nor
submitted a complete application to proceed in forma pauperis
(“IFP”). Thus, the petition is subject to administrative
termination for failure to pay the filing fee. Nevertheless, the
petition is meritless and will be dismissed.
According to the Petition, on December 20, 2012,
Petitioner, a native of the Dominican Republic who holds a
“green card,” was sentenced in this District Court for various
drug charges to 60-months imprisonment and supervised release
thereafter. See United States v. Martinez, 11-cr-352 (FSH); Pet.
¶ 13. He is currently serving that sentence. See id., Pet. ¶ 4.
He files this § 2241 Petition to challenge the immigration
detainer placed upon him by the Bureau of Immigration and
Customs Enforcement (“ICE”). See Pet. ¶ 6.
Petitioner argues that he can satisfy the seven-year
domicile requirement to delay or suspend deportation and that it
would be an undue hardship for his family if he were deported.
See Pet. ¶ 13. He asks this Court to allow him to stay in the
United States and prevent his deportation. See Pet. ¶ 15. It
appears that Petitioner has not yet been through the immigration
A. Legal Standard
“Habeas corpus petitions must meet heightened pleading
requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition is required to specify all the grounds for relief
available to the petitioner, state the facts supporting each
ground, state the relief requested, and be signed under penalty
of perjury. See 28 U.S.C. § 2254 Rule 2(c), applicable to § 2241
petitions through Rule 1(b). “Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland, 512 U.S. at 856; Siers v.
Ryan, 773 F.2d 37, 45 (3d Cir.1985). Habeas Rule 4 accordingly
requires the Court to examine a petition prior to ordering an
answer and, if it appears “that the petitioner is not entitled
to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” 28
U.S.C. § 2254 Rule 4, applicable through Rule 1(b).
B. The Petition Must Be Dismissed.
Any challenges to Petitioner’s removal order, or in this
case, future removal order, are not reviewable in this Court.
On May 11, 2005, the Real ID Act of 2005, Pub. L. No. 10913, Div. B., 119 Stat. 231 (the “Act”), was enacted, stripping
the district courts of habeas jurisdiction over removal orders.
Section 106 of the Act amended 8 U.S.C. § 1252(a) by adding the
(5) Exclusive means of review
Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of Title 28,
or any other habeas corpus provision, and sections
1361 and 1651 of such title, a petition for review
filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of an order of
removal entered or issued under any provision of this
chapter, except as provided in subsection (e) of this
section. For purposes of this chapter, in every
provision that limits or eliminates judicial review or
jurisdiction to review, the terms “judicial review”
and “jurisdiction to review” include habeas corpus
review pursuant to section 2241 of Title 28, or any
other habeas corpus provision, sections 1361 and 1651
of such title, and review pursuant to any other
provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5).
This statute also provides that all questions of fact or
law that arise from removal proceedings can be addressed only in
a petition for review to the appropriate court of appeals. See
id. at § 1252(b)(9) (“Judicial review of all questions of law
and fact ... arising from any action taken or proceeding brought
to remove an alien from the United States ... shall be available
only in judicial review of a final order under this section.
Except as otherwise provided in this section, no court shall
have jurisdiction, by habeas corpus under section 2241 of Title
28, or any other habeas corpus provision, ... to review such an
order or such questions of law or fact.”). Thus, the sole and
exclusive means for Petitioner to challenge his removal order,
once he is subject to a removal order, is by filing a petition
for review in the Third Circuit. See id.; Jordon v. Attorney
General, 424 F.3d 320, 326 (3d Cir. 2005) (“[T]he Act expressly
eliminated district courts' habeas jurisdiction over removal
orders.”); Duvall v. Attorney General, 436 F.3d 382, 386 (3d
Cir. 2006) (“The sole means by which an alien may now challenge
an order of removal is through a petition for review directed to
the court of appeals.”).
In the present case, in which the immigration detainer
exists but has not been the product of administrative hearings,
let alone a final order, this Petition is premature. Even if the
REAL ID Act did not place a cloud over the district court's
jurisdiction, it is clear under Section 1252(d)(1) that a court
may review a final order of removal only if the alien has
exhausted all administrative remedies available to him as of
right. See also Duvall v. Elwood, 336 F.3d 228, 230 (3d Cir.
2003). In that case, the Court of Appeals held that where the
petitioner had failed to obtain a final order of removal, the
matter of removability was not jurisdictionally capable of
review in the district court and complete exhaustion of the
removal procedure remedy was found to be an unavoidable
statutory prerequisite to habeas review. See id. at 232-33.
Accordingly, the Third Circuit has held that a petitioner
seeking to obtain judicial review of his nationality status,
prior to a final removal order being entered, “cannot even bring
such a petition under today's law.” Asemani v. Attorney General
of the United States, 140 F. App’x 368, 373 n.2 (3d Cir. July
For all of these reasons, this Court finds that it has no
jurisdiction to entertain this petition. If Petitioner were
presently seeking judicial review of a final order of
deportation, such that he had improperly filed this case in the
district court when it should have been raised in a petition for
review before the Court of Appeals, then this court could
transfer this petition to the Court of Appeals under Section
106(c) of the REAL ID Act. That Section provides for transfer to
“the court of appeals for the circuit in which a petition for
review could have been properly filed under Section 242(b)(2) of
the Immigration and Nationality Act (8 U.S.C. § 1252), as
amended by this section....” Such a transfer is not warranted
here. The Petition is, at best, premature and there is no final
reviewable order for the Court of Appeals to review. In other
words, the Third Circuit is not presently the circuit in which
Petitioner could file a proper petition for review, because
Petitioner has no final order of removal, so this Court shall
not transfer the case to the appellate court. Secondly, the
Petitioner will have an opportunity for court of appeals review
in due course, if a final deportation order is entered by the
Accordingly, the present Petition under Section 2241 must
be dismissed, without prejudice to Petitioner's right to pursue
his administrative remedies and, if unsuccessful, to file a
petition in the appropriate Court of Appeals challenging any
Based on the foregoing, this Court will dismiss the
petition. An appropriate Order accompanies this Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
July 16, 2014
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