Diaz v. Holder et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 12/23/14. (ts)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSELITO VASQUEZ-GOMEZ,
aka ERIC DIAZ

:
:

Petitioner
v.

: CIVIL ACTION NO. 3:14-0454

ERIC HOLDER, et al.
Respondents

:

(JUDGE MANNION)

:
MEMORANDUM

Petitioner Joselito Vasquez-Gomez, aka Eric Diaz (“VasquezGomez”), a detainee of Immigration and Customs Enforcement (“ICE”)
has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241.
(Doc. 1). He challenges his continued detention by ICE, arguing that he
is in fact a citizen of the United States. (Doc. 7). For the reasons set forth
below, the petition is dismissed for lack of jurisdiction.

I.

Background
Vasquez-Gomez, a native and citizen of the Dominican Republic,

entered the United States at an unknown place and time without
inspection. (Doc. 6, Ex. 1, p. 4). On April 9, 2003, Vasquez-Gomez

pleaded guilty in a New York State court to criminal possession of a
controlled substance with intent to sell. (Doc. 1, Ex. 1, p. 3). On October
15, 2004, Vasquez-Gomez was sentenced to a term of four to twelve
years imprisonment. Id. On September 22, 2011, a judgment of conviction
was entered against Vasquez-Gomez for making false statements on a
passport application, misuse of a social security number, and aggravated
identity theft. United States v. Gomez, 494 F.App’x 159, 160 (2d Cir.
2012). He was sentenced to forty-five months imprisonment and three
years of supervised release. Id.
Thereafter, removal of Vasquez-Gomez was sought under 8 U.S.C.
§1182(a)(2)(A)(i)(I), a crime involving moral turpitude, 8 U.S.C.
§1182(a)(2)(A)(i)(II), a violation of any law relating to a controlled
substance, 8 U.S.C. §1182(a)(6)(C)(i), seeking to procure documentation
or benefits through fraud, and 8 U.S.C. §1182(a)(6)(C)(ii), falsely claiming
United States citizenship. (Doc. 6, Ex. 4, p. 2).
On February 12, 2013, Immigration Judge Walter Durling issued an
order directing the removal of Vasquez-Gomez from the United States to
the Dominican Republic. (Doc. 6, Ex. 2). Judge Durling relied upon
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several pieces of evidence, including Vasquez-Gomez’s own sworn
statement, in deciding that Vasquez-Gomez was not a citizen of the
United States but was in fact a citizen of the Dominican Republic. Id.
Vasquez-Gomez thereafter appealed to the board of immigration
appeals, presenting new evidence that purportedly established his United
States citizenship. (Doc. 6, Ex. 3). The board of immigration appeals
remanded the case to consider the new evidence. (Doc. 6, Ex. 4).
On September 4, 2013, Judge Durling again concluded that
Vasquez-Gomez was not a citizen of the United States. (Doc. 6, Ex. 5).
Judge Durling stated that, while Vasquez-Gomez claimed his true name
was Eric Diaz, he had refused to provide any information regarding his
identity, place or date of birth, or any other “pertinent matters of a
biographical nature.” Id. Judge Durling again noted that Vasquez-Gomez
had previously informed law enforcement officials that “he was born on
July 25, 1975, in Santo Domingo, Dominican Republic, and that he had
illegally entered the United States through Mexico in 1999.” Id. In that
statement, Vasquez-Gomez admitted to purchasing identity papers for
“Eric Gomez” for five hundred dollars. Id. Vasquez-Gomez failed to
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produce a birth certificate or any other substantive evidence
demonstrating United States citizenship. Id. Judge Durling observed that
the evidence Vasquez-Gomez provided did not corroborate his
citizenship, as the “information comes from the defendant [and] is not
generated to establish or prove a defendant’s place of birth or other
biographic data.” Id. Thus, Judge Durling again ordered VasquezGomez’s removal from the United States. Id.
On March 11, 2014, Vasquez-Gomez filed a petition for writ of
habeas corpus with this Court, and on May 6, 2014, Respondents filed a
response. (Docs. 1, 6). On June 17, 2014, Vasquez-Gomez filed a reply,
rendering this matter ripe for disposition. (Doc. 7).

II.

Discussion
In his habeas petition, Vasquez-Gomez presented a fairly straight

forward argument relating to unconstitutional detention in excess of the
presumptively reasonable sixth month period as set forth by the United
States Supreme Court. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). In

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their response, Respondents contend that even if the six month
presumptively reasonable period has lapsed, Vasquez-Gomez has failed
to present any evidence that his removal is not reasonably likely within
the reasonably foreseeable future. (Doc. 6). In his reply, Vasquez-Gomez
clarifies the core of his argument in this case.
Vasquez-Gomez contends that he was born in Puerto Rico and is
a citizen of the United States. (Doc. 7). He contends that the United
States Government has failed to prove by “clear, convincing, and
unequivocal evidence” that he is a citizen of the Dominican Republic. Id.
Therefore, Vasquez-Gomez argues, “the agency DHS/BICE has violated
his constitutional rights[.]” Id. Throughout his eight page reply, VasquezGomez continually asserts his United States citizenship, and only twice
states that, because he is a United States citizen, there is no significant
likelihood that he will be removed within the reasonably foreseeable
future. Id.
Consequently, as relief Vasquez-Gomez requests
. . . because the government did not meet its burden of
proof to provide clear, convincing, and unequivocal
evidence of alienage, and that the deportation proceedings
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denied him due process because of the admission of an
unauthenticated false statements [sic] he made in the past
which are false, and HE IS REQUESTING HIS IMMEDIATE
RELEASE, In [sic] the alternative, Petitioner asks that his
case be transferred to the United States court of appeals for
de novo determination of his claim to citizenship[.]
id. (emphasis in original).
It is clear that, at its core, the petition challenges the order of
removal underlying Vasquez-Gomez’s detention. Specifically, VasquezGomez asserts a claim of nationality, and argues that the immigration
court wrongly determined he is not a United States Citizen. Under 8
U.S.C. §1252, as amended by the REAL ID Act, “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.” 8 U.S.C. §1252(a)(5). This section of the statute “divests [a
district court] of jurisdiction to review” a habeas petition. Chuva v.
Attorney Gen. of U.S., 432 F.App’x 176, 177 (3d Cir. 2011).
Consequently, this Court lacks jurisdiction to decide Vasquez-Gomez’s
petition. In such circumstances, a district court must dismiss the petition
without prejudice, and may not transfer the case to the appropriate court

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of appeals. Bryan v. U.S. Citizenship & Immigration Servs., 506 F.App’x
150, 151 (3d Cir. 2012).

Conclusion
A review of the record reveals that this Court lacks jurisdiction to
entertain Vasquez-Gomez’s petition for a writ of habeas corpus.
Consequently, his petition will be dismissed without prejudice as to his
ability to file a proper petition with the proper court of appeals.
An appropriate Order will be entered.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: December 23, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-0454-01.wpd

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