Toscano v. Gonzales et al

Filing 3

DECISION AND ORDER DISMISSING the petition without prejudice to it being re-filed in the Second Circuit Court of Appeals; DENYING the request for a stay of removal without prejudice to it being re-filed in the Second Circuit Court of Appeals; DIRECTI NG the Clerk of the Court to serve the petition and this Order upon the following: United States Attorney for the Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202 and James W. Grable, District Counsel for the Department of Homeland Security, 130 Delaware Avenue, Room 203, Buffalo, New York 14202, to inform respondent of the filing and dismissal of the petition. . Signed by Hon. William M. Skretny on 4/3/2006. (MEAL, )

Toscano v. Gonzales et al

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Case 1:06-cv-00207-WMS

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Filed 04/03/2006

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U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

M A R T H A VASQUES TOSCANO, P e titio n e r , -v G O N Z A L E Z , ALBERTO, Attorney General of the United States, W IL L IA M CLEARY, Field Director of Deportation and Removal Buffalo District, IC E Department of Homeland Security, R e s p o n d e n ts . D E C IS IO N and ORDER 0 6 -C V - 0 2 0 7 S (S c )

P e titio n e r Martha Vasques Toscano, who is currently detained at the Erie C o u n ty Holding Center and was arrested on March 28, 2006, by the Department of H o m e la n d Security on a warrant of removal, has filed, by her attorneys, a petition for h a b e a s corpus relief pursuant to 28 U.S.C. § 2241 and an emergency stay of removal, c h a lle n g in g a final order of removal of the Board of Immigration Appeals ("BIA") issued o n or about June 20, 2002. (Docket No. 1). According to the petition, she requests that the Court review and vacate the June 20, 2002 decision of the BIA, which d ism iss e d her appeal from an order of removal issued by the Immigration Judge ("IJ") o n March 30, 2001. (Petition, ¶ ¶ 2, 4-5). The IJ entered the order of removal after d e n yin g petitioner's application for cancellation of removal based on her claim of being a victim of domestic violence. The IJ found that petitioner had not established that her a b u se r was her spouse or that he had been a lawful permanent resident. (Id., ¶ 5). P e titio n e r then received a stay of removal and an order of supervision until February

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2 0 , 2003, and now claims "that her release on May 6, 1999 on conditional parole p u rs u a n t to 8 U.S.C. § 1226 after being placed into removal proceedings and being se rv e d a notice to appear was a parole pursuant to 8 U.S.C. § 1182(d)(5)." (Id., ¶ 6). P e titio n e r also claims that she is in imminent danger of removal and that the Buffalo O ffic e of Immigration and Custom Enforcement has advised her counsel that if a stay o f removal is not entered before the close of business on Monday, April 3, 2006, p e titio n e r would be removed to Mexico. For the following reasons, the petition is dismissed and petitioner's request for a stay of removal is denied without prejudice because the REAL ID Act of 2005, Pub. L . No. 109-13, 119 Stat. 231 (codified at 8 U.S.C. § 1252), divested this Court of ju risd ictio n over petitions for habeas corpus relief challenging a final order of removal. O n May 11, 2005, Congress enacted the Real ID Act, which became effective th a t same day. REAL ID Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231 (2 00 5). Specifically, section 106(a)(1)(B), amends § 242(a) of the Immigration and N a tio n a lity Act of 1952, as amended ("INA"), 8 U.S.C. § 1252 (2000), and adds the fo llo w in g jurisdictional provision: (5 ) Exclusive Means of Review ­ Notwithstanding any other provision of la w (statutory or nonstatutory), including section 2241 of Title 28, United S ta te s Code, or any other habeas corpus provision, and sections 1361 a n d 1651 of such title, a petition for review filed with an appropriate court o f appeals[1 ] in accordance with this section shall be the sole and e x clu s iv e means of judicial review of an order of removal entered or is su e d under any provision of this Act . . . .

The "appropriate court of appeals" is "the court of appeals for the judicial circuit in which the im m ig r a t io n judge com p le t e d the proceedings." INA, § 242(b)(2), 8 U.S.C. § 1252(b)(2).

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R E A L ID Act, § 106(a)(1)(B)(5). The REAL ID Act also provides that the "district court shall transfer . . . to the court of appeals any case "challenging a final administrative order of removal that is "pending in a district court" on the date the Act became e ffective --M a y 11, 2005. REAL ID Act of 2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 2 3 1 (2005). T h e instant petition was filed in this Court on March 31, 2006, and, as noted, s e e ks review of an order of removal entered by the Board of Immigration Appeals on Ju n e 20, 2002. It therefore clearly seeks review of a final order of removal. T h e Court finds that since petitioner challenges an order of removal within the m e a n in g of the REAL ID Act, § 106(b), INA, § 242(a)(5), as amended, 8 U.S.C. § 1 2 5 2 (a )(5 ), this Court has no jurisdiction to review either the merits of the petition or to stay the order of removal. Walters v. Chertoff, NO. 3:05 CV 01672 RNC, 2005 W L
3 4 1 6 1 2 4 , *1 (D.Conn. Dec. 12, 2005). Since the petition was not "pending" on May 11,

2 0 0 5 , this Court does not have the authority to transfer this case to the court of a p p e a ls . Walters, 2005 W L 3416124, at *1; Nnabuihe v. Bureau of Immigration and
C u s to m s Enforcement, No. 3:05-CV-1523-N, 2005 W L 2545284 (N.D.Tex. Oct. 11, 2005); F lo re s -D ia z v. U.S., No. 2:05-CV-710 TS, 2005 W L 2456983 (D.Utah Oct. 5, 2005); Griffith v . Dept. of Homeland Security, 2005 W L 2338866, at *1 (W .D .N .Y. Sept. 3, 2005); Munoz v . Gonzalez, No. 05 Civ. 6056 (SHS), 2005 U.S. Dist. LEXIS 14014 (S.D.N.Y. July 11, 2005). A s noted, the sole and exclusive means to review "an order of removal," such as the o n e challenged herein, is through a petition for review with the appropriate court of appeals. R E A L ID Act, § 106(a)(1)(B). In this matter the Second Circuit Court of Appeals is the

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a p p r o p ria te court of appeals because it appears from the petition that the immigration p ro c e e d in g s were conducted within the geographical jurisdiction of the Second Circuit. INA, § 242(b)(2), as amended, 8 U.S.C. § 1252(b)(2). If petitioner intends to appeal from this Order, she must file any notice of appeal from th is Order with the Clerk's Office, United States District Court, W e s te r n District of New York, w ith in thirty (30) days of the date of judgment in this action. IT IS HEREBY ORDERED, that the petition is dismissed without prejudice to it being re -file d in the Second Circuit Court of Appeals and the request for a stay of removal is denied w ith o u t prejudice to it being re-filed in the Second Circuit Court of Appeals. F U R T H E R , that to inform respondent of the filing and dismissal of the petition the C le rk of the Court shall serve the petition and this Order upon the following: · U n ite d States Attorney for the W e s te r n District of New York, 138 Delaware

A ve n u e , Buffalo, New York 14202; · J a m e s W . Grable, District Counsel for the Department of Homeland Security,

1 3 0 Delaware Avenue, Room 203, Buffalo, New York 14202. S O ORDERED. D a te d : A p ril 3, 2006 B u f fa lo , New York /s/W illia m M. Skretny W IL L IA M M. SKRETNY United States District Judge

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