Parral v. Lacy, Jr.

Filing 6

MEMORANDUM AND ORDER entered. It is hereby ORDERED that the Petition 1 is DISMISSED without prejudice; and it is ORDERED that Parral' s motion to proceed in forma pauperis 2 is GRANTED. (Signed by Judge Ewing Werlein, Jr) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
September 27, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ERIC VINCENTE ROSTRO PARRAL,
#A-73114094,

David J. Bradley, Clerk

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Petitioner,
v.

WARDEN ROBERT LACY, JR.,
Respondent.

CIVIL ACTION NO. H-17-2123

MEMORANDUM AND ORDER

Petitioner, Eric Vincente Rostro Parral ("Parral"), has filed
a petition for habeas corpus pursuant to 28 U.S.C.
to reopen his removal proceedings.
has

also

filed

an

application

for

§

2241, seeking

(Docket Entry No. 1).
leave

to

proceed

in

pauperis and a copy of his prisoner trust fund statement.
Entry Nos.

2,

3).

Parral

forma
(Docket

After considering all of the pleadings,

the

Court concludes that this case must be dismissed without prejudice
for lack of jurisdiction.

I .

Parral
Immigration

is

currently

and

Customs

Background

in

custody

Enforcement

of

the

("ICE")

United
at

the

States
Houston

Processing Center. 1
March

18,

2004,

Parral challenges a removal order entered on

alleging

that

the

proceeding

was

tainted

by

ineffective assistance of counsel and that his lawyer gave him the
wrong advice when he missed his appointment and his application was
denied. 2

Parral claims that his lawyer should have advised him to

file a motion to

reopen within thirty days of the denial,

instead counsel told him that there was nothing he could do.

but
3

He

also alleges that his daughter already filed a new I-130 petition
that

has been approved

since

December

2 016. 4

2 3,

For

relief,

Parral seeks to reopen his removal case. 5

II.
Parral
seeking

to

objects
reopen

to
his

the

Discussion
removal

removal

order

entered against

proceedings.

This

Court

him,
lacks

jurisdiction to consider a challenge to an order of removal under
the REAL ID Act of 2005, codified as amended at 8 U.S.C.

§

1252(a).

This statute makes a petition for review to the applicable circuit
court of appeals the "sole and exclusive means of judicial review"
for orders of removal:

1

Docket Entry No. 1 at 1.

2

Id. at 2, 12.

3

Id. at 6-7, 12.

4

Id. at 7.

5

Id.
2

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 of judicial review of an order of
removal entered or issued under any provision of this
chapter, except as provided in subsection (e) .
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).

The REAL ID Act "divested district courts

of jurisdiction over removal orders and designated the courts of
appeals as the sole forums for such challenges via petitions for
review." Moreira v.

Mukasey,

509 F.3d 709,

(citing 8 U.S.C. § 1252(a) (5)).

712

(5th Cir.

2007)

Because the REAL ID Act precludes

jurisdiction over petitions of the sort filed in this case,

the

Court has no authority to consider the proposed claims concerning
Parral's removal order.

Accordingly,

Parral's claims concerning

his removal order must be dismissed without prejudice for lack of
jurisdiction.

III.

Based on the foregoing,

ORDER

it is hereby

ORDERED that the Petition

(Docket Entry No.

without prejudice; and it is

3

1)

is DISMISSED

ORDERED that

Parral' s motion to proceed in

forma pauperis

(Docket Entry No. 2) is GRANTED.
The Clerk will enter this Order, providing a correct copy to
all parties of record.
SIGNED at Houston,

Texas,

on this

:!!/!!

of¥-,

2017.

WERLEIN, JR.
TES DISTRICT JUDG

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