CASTRO-DIAZ v. BOARD OF IMMIGRATION APPEALS et al
Filing
2
OPINION. Signed by Judge Kevin McNulty on 12/4/2013. (bdk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIO CASTRO-DIAZ,
Petitioner,
:
v.
Civ. No. 13-7214 (KM)
OPINION
BOARD OF IMMIGRATION APPEALS, et al.,
Respondents.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
The petitioner, Mario Castro-Diaz, is a citizen of Peru who has been ordered removed
from the United States. He is currently detained at the Essex County Correctional Facility in
Newark, New Jersey. Mr. Castro-Diaz, appearing pro Se, has filed in this Court a petition for a
writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. The petition challenges the order of
removal and also argues that he is entitled to a bond hearing. To the extent that the petition
challenges the order of removal, this Court lacks jurisdiction over it; this claim will be severed
and transferred to the United States Court of Appeals for the Third Circuit. The remainder of the
petition will remain in this Court, but will be administratively terminated without prejudice,
because Mr. Castro-Diaz has failed to either pay the Court’s filing fee or to submit a complete
application to proceed in förrnapauperis. If and when that deficiency is corrected, this Court will
hear the remaining claim.
II.
BACKGROUND
Mr. Castro-Diaz was released from the Ocean County Jail after completing service of a
sentence for two counts of child neglect. On June 14, 2013, an Immigration Judge ordered that
Mr. Castro-Diaz be removed from the United States. The Board of Immigration Appeals (“BIA”)
affirmed the decision of the Immigration Judge on October 15, 2013.
On November 13, 2013, Mr. Castro-Diaz filed the current habeas petition in this Court by
delivering it to the prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276
(1988). His petition seeks judicial review of the order of removal and a bond hearing.
III.
STANDARD FOR SUA SPONTE REVIEW
The relevant statute, 28 U.S.C.
§ 2243, provides for the Court’s initial screening of a
habeas petition:
A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.
Because Mr. Castro-Diaz is proceeding pro Se, his petition is held to less stringent standards than
a pleading drafted by a lawyer. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is
the policy of the courts to give a liberal construction to pro se habeas petitions.”) (internal
quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007)
(“[Wje construe pro se pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)). Nevertheless, “a district court is authorized to dismiss a {habeasj petition summarily
when it plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court.” Lonchar v. Thomas, 517 U.S. 314, 320
(1996).
2
IV.
DISCUSSION
A. Challenge to Removal
Mr. Castro-Diaz’s petition expressly asks this Court to review the legality of his order of
removal. The REAL ID Act, enacted May 11, 2005, effectively strips district courts of
jurisdiction over habeas petitions for review of orders of removal, and lodges exclusive
jurisdiction in the Courts of Appeals:
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 ofan order of removal entered or issued under
any provision ofthis 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 or 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) (emphasis added). The modifications “effectively limit all aliens to one
bite of the apple with regard to challenging an order of removal, in an effort to streamline what
the Congress saw as uncertain and piecemeal review of orders of removal, divided between the
district courts (habeas corpus) and the courts of appeals (petitions for review).” Bonhometre v.
Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (citation omitted). Accordingly, the REAL ID Act
effectively provides that a district court has no jurisdiction to hear a habeas petition challenging
an order of removal. See Urquiaga v. Hendricks, No. 12-23 68, 2012 WL 5304206, at *2 (D.N.J.
Oct. 25, 2012) (citing Khouzam v. Attorney Gen. of United States, 549 F.3d 235, 244-45 (3d Cir.
2008); Appiah v. United States Customs & Immigration Serv., No. 11-3 17, 2012 WL 4505847, at
*3 (D.N.J. Sept. 25, 2012); Gallego-Gomez v. Clancy, No. 11-5942, 2011 WL 5288590, at *2
3
(Nov. 2, 2011), aff’d, 458 F. App’x 91 (3d Cir. 2012) (per curiam); Calderon v. Holder, No. 103398, 2010 WL 3522092, at *2 (D.N.J. Aug. 31, 2010)); see also Duvall v. Attorney Gen. of
United States, 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.”)
(citation omitted); Jordon v. Attorney Gen. of United States, 424 F.3d 320, 326 (3d Cir. 2005)
(“[T]he [REAL ID) Act expressly eliminated district courts’ habeas jurisdiction over removal
orders.”).
As established above, the REAL ID Act strips this Court ofjurisdiction to consider such a
claim. Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in
the interests ofjustice, transfer such action.
.
.
to any other such court in which the action.
could have been brought at the time it was filed.” 28 U.S.C.
§
1631. The court—the only
court— in which this habeas challenge could have been brought is the “appropriate court of
appeals.” 8 U.S.C.
§
1252(a)(5). The “appropriate” court of appeals in this instance would be the
United States Court of Appeals for the Third Circuit. Mr. Castro-Diaz could and should have
sought judicial review of his removal there.
I therefore find that it is in the interest ofjustice to sever the portion of the petition that
seeks judicial review of Mr. Castro-Diaz’s removal order and to transfer that portion of the
petition to the court that has jurisdiction over it, the United States Court of Appeals for the Third
Circuit.
B. Bond Hearing
As I say, I have severed the challenge to the removal order and transferred it to the Court
of Appeals. A second claim remains. The petition also alleges that Mr. Castro-Diaz has been in
immigration detention for over seven months without a bond hearing, and he asks the court to
4
order such a hearing. (See Dkt. No. 1 at p. 5.) This second component of the petition is best
viewed, not as a challenge to the removal order, but as a challenge to the legality of the
petitioner’s detention.
The district courts retain jurisdiction over habeas challenges to the legality of detention.
See Bonhometre, 414 F.3d at 446 n.4 (“An alien challenging the legality of his detention still
may petition for habeas corpus”) (emphasis in original) (citation omitted); Walker v. Sabol, No.
13-1862, at *1 (M.D. Pa. July 12, 2013) (citing Clarke v. Dep’l ofHomeland Sec., No. 09-1382,
2009 WL 2475440 (M.D. Pa. Aug. 12, 2009); see also 28 U.S.C.
§ 224 1(c)(3). Accordingly, this
Court may retain jurisdiction over this second claim.
There is, however, a procedural barrier to consideration of this second claim. Before this
Court can proceed, Mr. castro-Diaz must do one of two things: (a) he must pay this court’s
$5.00 filing fee, or (b) he must submit a completed application to proceed infbrmapauperis.
Mr. castro-Diaz has filed an application to proceed informapauperis, but the application
is not complete. If he intends to proceed, he must remedy this deficiency.
Whenever a Federal, State, or local prisoner submits a. petition
for writ of habeas corpus. and seeks in forma pauperis status,
the prisoner shall also submit an affidavit setting forth information
which establishes that the prisoner is unable to pay the fees and
costs of the proceeding and shall further submit a certification
signed by an authorized officer of the institution certifying (1) the
amount presently on deposit in the prisoner’s prison account and,
(2) the greatest amount on deposit in the prisoner’s prison account
during the six-month period prior to the date of the certification.
.
.
.
.
Local Civ. R. 81.2(b). Mr. Castro-Diaz’s application fails to include a certified statement from
an authorized officer of the Essex County Correctional Facility that certifies (1) the amount
presently on deposit in his prison account, and (2) the greatest amount on deposit in his prison
account during the six-month period prior to the date of the certification. As a result, this Court
5
cannot, consistent with the local rules, determine whether Mr. Castro-Diaz is in fact indigent for
purposes of granting in forma pauperis status. See Local Civ. R. 81.2(c) (“If the prison account
of any petitioner or movant exceeds $200, the petitioner or movant shall not be considered
eligible to proceed in forn2a pauperis.”)
Accordingly, the application to proceed informapauperis will be denied without
prejudice. This case will be administratively closed, without prejudice, until and until such time
as Mr. Castro-Diaz pays the filing fee or submits a complete application so that the Court may
rule on his application to proceed informapauperis.
V.
CONCLUSION
For the foregoing reasons, Mr. Castro-Diaz’s petition for judicial review of his order of
removal will be severed from the remainder of the petition and transferred to the United States
Court of Appeals for the Third Circuit. The remainder of the petition shall remain in this Court,
but will be administratively terminated unless and until Mr. Castro-Diaz either pays the filing fee
or submits a complete application to proceed informapauperis. An appropriate order will be
entered.
Dated: December 4, 2013
Kevin McNulty
United States District Ju
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?