Joseph v. US Attorney General et al

Filing 4

ORDER DISMISSING CASE: As this Court has no jurisdiction to review Petitioner's claims under 28 U.S.C. § 2241, the petition is dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from thi s order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close this case. Ordered by Judge Pamela K. Chen on 12/4/2017. (Rediker, Ezekiel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRENTON C. JOSEPH,
NOT FOR PUBLICATION
Petitioner,
-against-

MEMORANDUM & ORDER
17-CV-5008 (PKC)

U.S. ATTORNEY GENERAL, DEPARTMENT OF
HOMELAND SECURITY, and DIRECTOR OF
HUDSON COUNTY CORRECTIONAL CENTER,
Respondents.
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PAMELA K. CHEN, United States District Judge:
Petitioner Brenton C. Joseph brings this pro se petition pursuant to 28 U.S.C. § 2241
seeking an emergency stay of removal. Petitioner’s request to proceed in forma pauperis is
granted, but the petition is dismissed because the Court lacks jurisdiction to consider it.
I. Background
Petitioner states that he is being “held in indefinite detention” at the Hudson County
Correction Facility in New Jersey pursuant to a detainer by United States Immigration and
Customs Enforcement (“I.C.E.”). (Pet. at 1-2.)1 He states that he has a removal order from
August 22, 2007 and that he was taken into immigration custody on July 19, 2017. (Id. at 5.) He
does not say where the removal order was entered. Prior to his detention in immigration custody,
he was “on I.C.E. Supervision Relief for the past 5 years from which I was detained when I last
reported.” (Id. at 8.) Petitoner did not previously appeal the removal order, file a grievance, or
seek an administrative remedy. (Id. at 2.)

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The Court cites to the pagination generated by the CM/ECF system and not the
Petition’s internal pagination.

Petitioner states that he fears for his life should he be returned to Trinidad and Tobago.
(Id. at 7-8.) He notes, “Some people and even government officials say I disgrace the reputation
of the country because of who I am. Recently I was maliciously outed and disgraced on the
internet by an unprofessional I.C.E. officer from the New York Federal Plaza office.” (Id.)
Petitioner attaches a page from the U.S. Department of State’s Country Reports on Human
Rights for Trinidad and Tobago that describes laws criminalizing consensual same-sex sexual
activity in that country. (Pet. at 11.) It states: “Immigration laws also bar the entry of
‘homosexuals’ into the country, but the legislation was not enforced during the year.” (Id.)
Petitioner seeks an “emergency stay of removal” while he files for asylum, withholding
of removal, and the Convention Against Torture. (Id. at 8.) He also describes the act or decision
he is challenging as “being held in indefinite detention.” (Id. at 2.)
II. Discussion
This Court does not have jurisdiction to consider Petitioner’s claims, which may only be
raised in the Court of Appeals for the judicial circuit in which his final removal order was
entered. The REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I, 119 Stat. 231, 310-11,
codified at 8 U.S.C. § 1252(a)(5), 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); see also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 113 (2d
Cir. 2008) (“The REAL ID Act amended the Immigration and Nationality Act (‘INA’) to provide
that petitions for review filed in the appropriate Courts of Appeals were to be the ‘sole and
exclusive means for judicial review’ of final orders of removal.” (quoting Section 1252(a)(5))).
Petitioner may pursue a petition for review only in the Court of Appeals for the judicial circuit in
which the order of removal was entered. See 8 U.S.C. § 1252(b)(2). Such a petition for review

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must be filed within 30 days from the date of the order of removal. 8 U.S.C. § 1252(b)(1). Since
District Courts cannot review removal orders, they also cannot consider requests for stays of
removal. See Scott v. Napolitano, 618 F. Supp. 2d 186, 191 (E.D.N.Y. 2009) (collecting cases);
Al-Garidi v. Holder, No. 09-CV-6160L, 2009 WL 1439216, at *1 (W.D.N.Y. May 15, 2009)
(“This Court and other district courts throughout the country have routinely held that because
district courts have no jurisdiction to review final orders of removal, they have no jurisdiction to
review requests for stays of removal.”).
Because this Court cannot consider Petitioner’s request for a stay, his petition must be
dismissed. Furthermore, because Petitioner states that the order of removal was issued a decade
ago, the Court will not transfer this case to the Court of Appeals “in the interests of justice,”
pursuant to 28 U.S.C. § 1631. See De Ping Wang v. Department of Homeland Sec., 484 F.3d
615, 618 (2d Cir. 2007) (finding that when a petition for a writ of habeas corpus challenging a
removal order under 28 U.S.C. § 2241 is improperly filed in the District Court, transfer to the
Court of Appeals was impermissible under 28 U.S.C. § 1631 where the petition is untimely and
thus could not have been brought in the Court of Appeals at the time it was filed in the District
Court); 8 U.S.C. § 1252(b)(1) (petition to review removal decision must be filed within 30 days
of date of removal order).
The Court notes that, to the extent Petitioner also claims that he is subject to “indefinite
detention” while awaiting removal, he may have a constitutional claim. That claim, however,
may not yet be actionable. Although the Supreme Court has recognized that “a statute permitting
indefinite detention of an alien would raise a serious constitutional problem,” it also has held that
six months of detention, following a final order of removal, is presumptively constitutional.
Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Here, Petitioner has been detained since July 19,

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2017, and is still within the period that is presumptively reasonable. However, should his
detention extend beyond this period and should Petitioner believe that there is no significant
likelihood of removal in the reasonably foreseeable future, he may challenge his detention in the
appropriate District Court. This Court is not that court.
For habeas corpus petitions outside of the deportation context, the proper jurisdiction for
challenging physical custody is the district of physical confinement, where the individual’s
immediate custodian is located. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (describing “the
general rule that for core habeas petitions challenging present physical confinement, jurisdiction
lies in only one district: the district of confinement”). Although The Supreme Court’s decision
in Rumsfeld v. Padilla “left open the question” whether these rules applied to “a habeas petition
filed by an alien pending deportation,” 542 U.S. 426, 435, n.8 (2004), the District Courts in this
Circuit have generally applied this rule. Adikov v. Mechkowski, No. 16-CV-3797 (JPO), 2016
WL 3926469, at *1 (S.D.N.Y. July 18, 2016) (collecting cases). Since Petitioner is detained in
New Jersey, he may challenge his detention by filing a habeas petition in the United States
District Court for the District of New Jersey and naming as the defendant his custodian at the
Hudson County Correctional Facility.2
CONCLUSION
As this Court has no jurisdiction to review Petitioner’s claims under 28 U.S.C. § 2241,
the petition is dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. §

Given the nature of Petitioner’s claims, he may want to seek advice or possible
representation from the non-governmental service organization Immigration Equality. See
www.immigrationequality.org/ (describing itself as “the nation’s leading LGBTQ immigrant
rights organization. We represent and advocate for people from around the world fleeing
violence, abuse, and persecution because of their sexual orientation, gender identity, or HIV
status.”) (last visited 11/23/17).
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1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in
forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369
U.S. 438, 444-45 (1962). The Clerk of Court is directed to close this case.

SO ORDERED.

/s/ Pamela K. Chen_____________________
Pamela K. Chen
United States District Judge
Dated: Brooklyn, New York
December 4, 2017

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