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finding no jurisdiction over petitioner's nationality claims on habeas review, and transferring to the proper federal court of appeals
Summary of this case from Martinez-Piedras v. I.N.S.Opinion
Civil Action No. CV-02-6162(DGT)
August 22, 2003
MEMORANDUM ORDER
Petitioner pro se Jean A. Dorival ("Dorival"), who is currently in the custody of the Immigration and Naturalization Service ("INS") under a final order of deportation, files this petition pursuant to 28 U.S.C. § 2241, seeking a declaration that he is a "national" of the United States pursuant to 8 U.S.C. § 1101(a)(22). (See Pet. at 1.) Accordingly, Dorival challenges the INS' final order of removal and asks to be released from INS custody. (See id. at 9.) In prior administrative proceedings, an immigration judge ("IJ") concluded that Dorival was not a national and, on August 19, 2002, ordered his removal. (See Oral Decision of the IJ dated Aug. 19, 2002, Chapman Decl., Ex. 4 ["IJ Decision"] at 4-5.) Dorival then requested an appeal with the Board of Immigration Appeals ("BIA"). (See Notice of Appeal to the BIA dated Aug. 19, 2002, Chapman Decl., Ex. 6 ["Notice of Appeal"].) The BIA affirmed the IJ's decision without opinion, deeming it the final agency determination. (See BIA Decision dated Jan. 8, 2003 ["BIA Decision"].) A stay of deportation was granted on January 8, 2003. (See Order.)
References to "Pet." are to petitioner's "Habeas Corpus Petition under § 2241 and Declaratory and Injunctive Relief to Declare Petitioner a National of the United States Pursuant to 8 U.S.C. § 1101(a)(22) and Emergency Stay of Deportation" filed on November 20, 2002
References to "Chapman Decl." are to the "Declaration of AUSA Kristen Chapman" dated January 21, 2003.
References to "Order" are to the stay of deportation dated January 8, 2003.
Respondent argues that venue is improper in this court and that the proper venue is either the Western District of Louisiana, where Dorival is presently in the custody of the Federal Detention Center, or Florida, where Dorival resided prior to his detention. (See Resp. at 3, 4.) Furthermore, respondent contends that, even if venue is proper and this case is not transferred to the Western District of Louisiana, this court lacks subject matter jurisdiction to hear nationality claims because 8 U.S.C. § 1252(b)(5) requires nationality claims be heard in the first instance by a court of appeals. (See id. at 4, 5.) Finally, respondent contends that, even if jurisdiction is proper in this case, Dorival has failed to exhaust his administrative remedies, and, therefore, Dorival's claim is not yet ripe. (See id. at 6, 7.)
References to "Resp." are to "Respondent's Return and Memorandum of Law in Opposition to Jean A. Dorival's Petition for a Writ of Habeas Corpus" dated January 21, 2003.
Background
Dorival, a native of Haiti, entered the United States at an unknown place and time and adjusted his status to lawful permanent resident on December 1, 1990. (See Chapman Decl. at 1.) Dorival claims that he resided in Queens, New York at 140-18 Burden-Creep, Apt. #301, Jamaica Avenue at the time of his arrest. (See Pet. at 3.) However, records indicate that Dorival resided in Ft. Lauderdale, Florida at 1047 N.E. 11th Avenue at that time. (See Presentence Investigation Report dated Aug. 31, 2000, Chapman Decl., Ex. 2 ["Presentence Report"] at 2;see also Application for Naturalization dated May 13, 1996, Chapman Decl., Ex. 5 ["Naturalization Application"] at 1.) Dorival has four children and a brother who reside in Florida. (See Presentence Report ¶¶ 22-27.) Although Dorival filed an application for naturalization in May 1996, the process was terminated on September 4, 1996, when Dorival failed to appear for his scheduled N-400 examination. (See Naturalization Application at 7.)
In his reply papers, petitioner concedes that he is a resident of Florida. (See Pet'r's Opp'n to Resp't's Return and Mem. of Law in Opp'n to Jean A. Dorival's Pet. for a Writ of Habeas Corpus dated Jan. 29, 2003 ["Pet'r Opp'n"] at 2).
A N-400 examination is an interview with the INS that accompanies an application for naturalization.
On April 23, 2000, Dorival was apprehended at John F. Kennedy Airport in Queens, New York while en route from Haiti to an unspecified location in the United States for importing cocaine in his luggage. (See Presentence Report ¶ 2.) On September 20, 2000, Dorival was sentenced to thirty months imprisonment pursuant to 21 U.S.C. § 952(a) for importing 500 grams or more of cocaine into the United States — a class C felony. (See Judgment dated Sept. 20, 2000, Chapman Decl., Ex. 2 ["Judgment"] at 2.) On or about June 12, 2002, upon completion of his sentence, Dorival was served with a Notice to Appear in immigration court for removal proceedings based on his conviction. (See Notice to Appear, Chapman Decl., Ex. 3 ["Notice to Appear"] at 1.)
It can be assumed that Dorival was en route to Florida based upon his naturalization documents, which list Florida as Dorival's residence. (See Naturalization Application at 1.)
Specifically, Dorival was apprehended for importing 3.8 net weight kilograms of cocaine. (See Presentence Report ¶ 2.)
The Notice to Appear charged Dorival as removable under Section 212(a)(2)(C) of the Immigration and Nationality Act ("INA") and Section 212(a)(2)(A)(i)(II) of the INA. Section 212(a)(2)(C) provides that an alien is subject to removal if "a consular or immigration officer knows or has reason to believe [the] alien . . . is or has been an illicit trafficker in any controlled substance or . . . is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance." 8 U.S.C. § 1182(a)(2)(C). Additionally, Section 212(a)(2)(A)(i)(II) provides that removal is proper if an alien "has been convicted of, or . . . admits having committed, or admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. § 802." 8 U.S.C. § 1229(a).
On August 19, 2002, after a series of hearings at the Federal Detention Center in Louisiana, an IJ found Dorival removable from the United States to Haiti. (See IJ Decision at 5.) Dorival requested an appeal of this decision, claiming that the IJ abused his discretion when he failed to allow Dorival to apply for any form of discretionary relief. Moreover, Dorival alleged that the IJ erred in ordering him removable, claiming that he is a national of the United States — not an alien — and, therefore, not subject to removal. (See Notice of Appeal at 2.) On January 13, 2003, the BIA affirmed the IJ's decision without an opinion and ordered Dorival's removal as the final agency determination. (See BIA Decision.) A stay of deportation was granted on January 8, 2003. (See Order.)
Discussion (1) Venue
A. Traditional Venue Considerations
Respondent argues that venue is improper in this court and that this case should be transferred to either Florida or the Western District of Louisiana. (See Resp. at 3.) In a habeas proceeding, venue is not fixed by statute; instead, it must be determined (1) whether traditional venue considerations are satisfied and (2) whether the court has personal jurisdiction over petitioner's custodian. See Lee v. Ashcroft, 216 F. Supp.2d 51, 54 (E.D.N.Y. 2002) (citing Mojica v. Reno, 970 F. Supp. 130, 165 (E.D.N.Y. 1997)). These venue considerations include "(1) the location where the material events took place, (2) where records and witnesses pertinent to the claim are likely to be found, (3) the convenience of the forum for respondent and petitioner, and (4) the familiarity of the court with the applicable laws." Mojica, 970 F. Supp. at 167 (citing Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 493, 93 S.Ct. 1123, 1132 (1973)); Arias-Agramonte v. Comm'r of INS, No. 00 Civ. 2412, 2000 U.S. Dist. LEXIS 10724, at *28 (S.D.N.Y. July, 31, 2000) (citations omitted).
In this case, none of the traditional venue considerations favor a finding of proper venue in the Eastern District of New York. Instead, they favor a finding that venue is proper in the Western District of Louisiana. First, the underlying material events took place during Dorival's deportation and removal proceedings, which were held in the Western District of Louisiana. Indeed, it was at these proceedings that Dorival first presented his claim that, because he had applied for naturalization in 1996, he is a "national" of the United States and cannot be deported. (See Tr. of Hearing dated July 22, 2001, Chapman Decl., Ex. 4 ["Hearing Tr."] at 20.) The IJ rejected this claim, determining that Dorival was not a "national" and found him removable on the drug charges. (See IJ Decision at 5.)
In addition, Dorival does not reside in this district. In fact, Dorival concedes that he resides in Florida and that he filed his application for naturalization in Florida. Moreover, Dorival was not incarcerated in or near the Eastern District of New York. Rather, according to his Notice to Appear, Dorival was incarcerated in Ohio before being taken into INS custody and placed in the Federal Detention Center in Louisiana. (See Notice to Appear at 1.)
Although Dorival plead guilty to importation of cocaine and was sentenced in the Eastern District of New York, that is because he was traveling through John F. Kennedy Airport when he was apprehended. Moreover, the facts and circumstances surrounding his conviction are not at issue in the immigration proceedings, and no witnesses or records pertinent to that conviction are necessary. (See Resp. at 3.) Thus, this case is distinguishable from cases that have found venue to be proper in the district where the petitioner was convicted and sentenced. Indeed, those cases involve situations where the events material to the petition all took place in that district. See, e.g., Arias-Agramonte, 2000 U.S. Dist. LEXIS 10724, at *28 (finding venue to be proper in district where conviction took place — the Eastern District of New York — because, inter alia, petitioner's conviction was based on events that occurred in Bronx, New York, "all of the evidence produced at the [immigration] hearing came from New York[,]" and petitioner resided in New York).
Therefore, Dorival's conviction in the Eastern District of New York does not support a conclusion that the material events occurred here. Rather, the material events pertinent to Dorival's claim favor venue in the Western District of Louisiana. See Alcaide-Zelaya v. McElroy, No. 99 Civ. 9999, 2000 U.S. Dist. LEXIS 15714, at *15-16 (S.D.N.Y. Oct. 27, 2000) (finding proper venue in Eastern District of New York because that was the district where petitioner resided, where his deportation and removal hearings took place, and where any relevant witnesses or evidence would, therefore, be located).
Second, since the record gives no indication that any witnesses testified at Dorival's removal hearing (see generally Hearing Tr.), this factor does not weigh in favor of either venue. However, the record does indicate that Dorival's naturalization application was filed in Florida and subsequently provided to the Western District of Louisiana for the removal proceedings. (See Hearing Tr. at 28-34.) Therefore, all of the records pertinent to Dorival's claim that he is a "national" of the United States are located in the Western District of Louisiana.
Third, the Western District of Louisiana is convenient for both the petitioner and respondent. Dorival is presently detained in the Federal Detention Center in Louisiana, and, as indicated above, the documents pertinent to his claim are located in Louisiana. Although there would be no hardship or inconvenience for the respondent to proceed in the Eastern District of New York, it would be costly to transport both Dorival and his relevant evidence from Louisiana to Brooklyn for the proceedings.Cf. Braden, 410 U.S. at 493, 93 S.Ct. at 1129 (finding district court in Kentucky, where petitioner was convicted, rather than district where petitioner is confined, to be the proper venue because that is where all the material events took place, the records and witnesses pertinent to the claim are located and because "[t]he expense and risk of transporting the petitioner . . . would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined").
In addition, courts have ultimately found that the district where all the material events transpired and where the records and witnesses are located — in this case, the Western District of Louisiana — is the most convenient forum. See Braden, 410 U.S. at 494, 93 S.Ct. at 1129 (holding that since, inter alia, material events and records were all located in Kentucky, it was the most convenient forum); see also Frasca v. Yaw, 787 F. Supp. 327, 331-32 (E.D.N.Y. 1992).
Finally, whether the Eastern District of New York is familiar with the applicable laws is not contested. The respondent concedes that this court is familiar with the applicable laws. (See Resp. at 4.) In addition, there is no indication that the Western District of Louisiana is not equally adept in federal habeas law. Cf. Colida v. Kyocera Wireless Corp., No. 02 Civ. 7348, 2003 U.S. Dist. LEXIS 5046, at *7 (N.D. Ill. Mar. 28, 2003) (presuming both districts at issue were equally familiar with federal patent law). Therefore this factor is neutral and does not favor venue in either district. Accordingly, since Dorival is presently detained in Louisiana, all of the evidence pertinent to his claim is located in Louisiana, and Louisiana is a convenient forum for both parties, the traditional venue considerations support a finding that venue is proper in the Western District of Louisiana.
Nonetheless, Dorival contends that venue is proper in this district because he has ties here, viz. some relatives in the area. (See Pet'r Opp'n at 3.) However, documents in the record belie his assertions. Indeed, as indicated above, Dorival has conceded that he resides in Florida. Moreover, his INS records list Fort Lauderdale, Florida as his residence. (See Naturalization Application at 1; see also Presentence Report at 2 (listing Dorival's legal residence as Florida).) In addition, those records and others indicate that Dorival's relatives and/or acquaintances residing in the United States also reside in Florida. (See Naturalization Application at 2; Notice to Appear at 1; Presentence Report ¶¶ 19-27.) Thus, the unsubstantiated presence of unspecified relatives in the Eastern District of New York should have no bearing on venue.
B. Personal Jurisdiction Over Petitioner's Custodian
Although not discussed in respondent's submissions, to determine if venue is proper, in addition to analyzing traditional venue considerations, it is also necessary to determine whether there is personal jurisdiction over petitioner's custodian. See Lee, 216 F. Supp.2d at 54 (citations omitted). The Supreme Court has stated that a writ of habeas corpus does not act upon the prisoner that seeks relief but upon the person who incarcerates him. If the custodian can be reached by service of process, the court has jurisdiction over him or her.See Braden, 410 U.S. at 494-95, 93 S.Ct. at 1130-31; see also Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976). However, "[t]he habeas statute does not `specify who the person having custody will be,' nor does it state that there may be only one custodian." Mojica, 970 F. Supp. at 166 (quoting Nwanko v. Reno, 828 F. Supp. 171, 174 (E.D.N.Y. 1993)); accord Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998). "Historically, the question of who is `the custodian,' and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and . . . on the convenience of the parties and the court." Henderson, 157 F.3d at 122.
Courts within this circuit are divided on the issue of who is the proper custodian of an alien who has been deemed removable by the INS. Indeed, some courts have found, as petitioner argues, that the Attorney General is the proper custodian of a petitioner in INS custody — thereby concluding that personal jurisdiction can be exercised by the court. See, e.g., Mojica, 970 F. Supp. at 166; Nwankwo, 828 F. Supp. at 174; see also Wilson v. Reno, No. 98 Civ. 6880, 2003 U.S. Dist. LEXIS 8691 (S.D.N.Y. May 16, 2003) (citing cases holding that the Attorney General is the proper custodian of a petitioner in INS custody); Lee, 216 F. Supp.2d at 54 (collecting and citing cases discussing split in authority and cases on each side of debate). While this "difficult question" has not been resolved by the Second Circuit, the court has conducted a thorough analysis of the pros and cons of holding that the Attorney General would be the proper respondent. Henderson, 157 F.3d at 122-28. Other courts, however, have held that the petitioner's custodian is the person with day-to-day control over the petitioner, such as the supervisor of the detention center in Louisiana — thereby concluding that personal jurisdiction cannot be exercised. See, e.g., Guerrero-Musla v. Reno, No. 97 Civ. 2779, 1998 U.S. Dist. LEXIS 7844, at *3-4 (S.D.N.Y. May 28, 1998) ("[T]he weight of authority supports the view that the petitioner's custodian is the official in charge of the facility that has day-to-day control of the detainee.") (citations omitted); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 209 (E.D.N.Y. 1997) (transferring petition to Western District of Louisiana because, inter alia, even though petitioner was resident of New York, petitioner was detained in Louisiana and his deportation proceedings occurred there).
It should be noted that most of these cases, unlike this case, involve arguments by the government that the petitioner's § 2241 petition should be dismissed or transferred to the Western District of Louisiana because of improper venue and/or lack of personal jurisdiction over the respondent. In this case, however, respondent does not seek to dismiss this case for lack of personal jurisdiction.
This case does not give occasion to enter this great debate. In this case, respondent does not contest whether this court can exercise personal jurisdiction. Indeed, even if personal jurisdiction could be exercised over respondent in this case, none of the traditional venue considerations favor a finding that venue is proper in the Eastern District of New York. Thus, unlike in the cases exercising personal jurisdiction over the petitioner's custodian (thereby not dismissing or transferring the petition), in this case, improper venue provides an independent ground to transfer petitioner's § 2241 petition to the Western District of Louisiana.
In sum, none of the traditional venue considerations favor venue in the Eastern District of New York. To the contrary, petitioner is in the custody of the Federal Detention Center in Louisiana, his deportation and removal proceedings occurred in Louisiana, and the evidence pertinent to his nationality claim is located there. Petitioner resides in Florida, and according to documents in the record, his family and acquaintances also reside in Florida. In short, petitioner has no ties to this district other the fact that he was apprehended here while traveling through an airport and subsequently sentenced by this court — a sentence that is not in dispute. In addition, although personal jurisdiction can be exercised over petitioner's custodian here, there is no indication that the Western District of Louisiana cannot also exercise personal jurisdiction over the custodian in this matter. At this point, it may be relevant to acknowledge the observations of the Fifth Circuit "`that the inundated district and magistrate judges of the Western District of Louisiana are toiling long and hard to process the torrent of habeas petitions flowing from the Oakdale facility as a result of lengthy delays in processing detainees for deportation'" but that the ```atypical and unanticipated volume of habeas petitions . . . is beyond the capability of the district court to process in a timely fashion.'" Nwanko, 828 F. Supp. at 174 (quoting Emejulu v. INS, 989 F.2d 771, 772 (5th Cir. 1993)). What the situation is today, however, is unknown to this court. Therefore, were it not for the issue of subject matter jurisdiction discussed below, this case would be transferred to the Western District of Louisiana, as that is the district where venue is most appropriate.
Respondent alternatively contends that venue may be proper in Florida. However, Dorival asserts that transfer of his petition to Florida would be meaningless because Florida follows the ruling of Vasquez v. Reno, 233 F.3d 688, 693 (1st Cir. 2000). (See Pet'r Opp'n at 2.) With regard to personal jurisdiction over a petitioner's custodian, the court in Vasquez found that the proper custodian of a petitioner is the person with immediate control over the petitioner — in this case, the warden or a similar supervisor at the detention center in Louisiana. However, a look at Eleventh Circuit case law, which does not address this precise issue, does not confirm Dorival's contention. In fact, in one case, the Eleventh Circuit declined to address the custodian issue and remanded the case back to the district court to, inter alia, consider "whether a detainee of the INS has or may have more than one custodian." Okongwu v. Reno, 229 F.3d 1327, 1330 (11th Cir. 2000). In doing so, the court acknowledged the split among the circuits regarding whether the Attorney General or the detention facility warden is the proper custodian of an INS detainee. See id. (collecting and citing cases). In any event, if the Eleventh Circuit does follow the First Circuit in finding that the proper custodian of an INS detainee is the facility warden, even if some traditional venue factors favor a finding that venue is proper in Florida, a district court in Florida would only, in turn, dismiss Dorival's petition or transfer it to the Western District of Louisiana for lack of personal jurisdiction. There is, however, no indication that the Western District of Louisiana cannot exercise personal jurisdiction over the custodian in this matter.
Although no case within the Fifth Circuit addresses the precise scenario presented here, it appears that personal jurisdiction in this manner would be present in the Western District of Louisiana, as that is the district where Dorival is currently detained. In the Fifth Circuit, a § 2241 petition for a writ of habeas corpus can be sought by a federal prisoner from a district with jurisdiction over either the prisoner or the custodian. See, e.g., United States v. Gabor, 905 F.2d 76, 78 (5th Cir. 1990) (citing Blau v. United States, 556 F.2d 526, 528 (5th Cir. 1978)). For this reason, courts within the Fifth Circuit have routinely transferred cases based on lack of personal jurisdiction to the district court in which petitioner is physically present. As indicated earlier, Dorival is currently detained at the Federal Detention Center in Oakdale, Louisiana, which is located in the Western District of Louisiana.
(2) Subject Matter Jurisdiction Over Petitioner's Nationality Claim
It is not contested that only aliens are subject to removal under the INA. See 8 U.S.C. § 1182, 1227. An alien is defined under the INA as "any person not a citizen or `national' of the United States." Id. § 1101(a)(3). In his petition, Dorival claims that he is a "national" of the United States pursuant to 8 U.S.C. § 1101(a)(22) and, therefore, is not subject to removal as an alien. (See Pet. at 9.) Under the INA, a national is defined as an individual who is either a citizen of the United States or "a person, though not a citizen of the United States, who owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). Dorival claims that the mere filing of his application for naturalization in May 1996 evidences that a he "owes permanent allegiance to the Unites States," and is, therefore, sufficient to confer upon him the status of a non-citizen "national" of the United States. (See Pet. at 5.) Respondent argues that if Dorival's petition is not transferred to the Western District of Louisiana, it should be dismissed for lack of subject matter jurisdiction because exclusive jurisdiction over nationality claims lies in the court of appeals.
Regarding the treatment of nationality claims raised by aliens subject to removal, 8 U.S.C. § 1252(b)(5) states:
(A) Court determination if no issue of fact — If the petitioner claims to be a national of the United States and the court of appeals finds . . . that no genuine issue of material fact . . . is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact — If petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact . . . is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim. . . .
(C) Limitation on determination — The petitioner may have such nationality claim decided only as provided in this paragraph.8 U.S.C. § 1252(b)(5) (emphasis added). In other words, a court of appeals has initial jurisdiction over a nationality claim in order to determine, based on the parties' pleadings and affidavits, whether an issue of material fact exists. See id.
Thus, the plain language of § 1252(b)(5) precludes a district court from considering, in the first instance, a nationality claim raised in the context of removal proceedings. See Hussein v. INS, No. 01 Civ. 1239, 2002 U.S. Dist. LEXIS 16976, at *5 (E.D.N.Y. Sept. 12, 2002) (holding that 8 U.S.C. § 1252(b)(5) precludes the district court from considering a nationality claim in the first instance); Rivas v. Ashcroft, No. 01 Civ. 5871, 2002 U.S. Dist. LEXIS 16254, at *13 (S.D.N.Y. Aug. 29, 2002) (finding that "[t]he immigration laws require that [the petitioner] . . . present his nationality claim in a petition for review with the appropriate court of appeals); see also Batista v. Ashcroft, 270 F.3d 8, 11-12 (1st Cir. 2001) (affirming the district court's transfer of the petitioner's citizenship claim to the court of appeals after it was raised in a habeas petition); Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (holding that petitioner challenging an order of removal cannot raise a citizenship claim in the context of a petition under 28 U.S.C. § 2241 because 8 U.S.C. § 1252(b)(5) "provides a specific remedy" for such claims); Baeta v. Sonchik, 273 F.3d 1261, 1264 (9th Cir. 2001) ("[T]he district court lack[s] jurisdiction over nationality issues under 8 U.S.C. § 1252(b)(5).");Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001) ("In the context of an order of removal . . . the INA explicitly places the determination of nationality claims solely in the hands of the courts of appeals and (if there are any questions of fact to resolve) the district courts."). Therefore, Dorival's claim that he is a "national" of the United States, even if an effective argument, is not properly before this court.
In this situation, where the petitioner's claim is improperly brought in the district court, transfer of Dorival's petition to a court of appeals is appropriate pursuant to 28 U.S.C. § 1631, which provides as follows:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.28 U.S.C. § 1631 (emphasis added); see Hussein, 2002 U.S. Dist. LEXIS 16976, at *5 (transferring national status claim presented in § 2241 petition to court of appeals pursuant to 28 U.S.C. § 1631);Rivas, 2002 U.S. Dist. LEXIS 16254, at *13 (same); Batista, 270 F.3d at 11-12 (finding that district court properly transferred § 2241 petition involving nationality claim to court of appeals pursuant to 28 U.S.C. § 1631); Baeta, 273 F.3d at 1264 (transferring portion of § 2241 petition raising nationality claims to court of appeals pursuant to 28 U.S.C. § 1631).
In response to Dorival's petition, respondent alleges that transfer of Dorival's petition to a court of appeals would be inappropriate as Dorival has not exhausted all of his administrative remedies. Specifically, respondent emphasizes that Dorival is not subject to a final order of removal because the BIA has not yet decided Dorival's appeal. (See Resp. at 6.) However, on January 13, 2003, after the respondent's memorandum was filed, the BIA issued its final agency determination, affirming the IJ's decision. (See generally BIA Decision.) Consequently, respondent's contention is rendered moot.
Although this case presents somewhat of a procedural quandary that has not been addressed in this context, it appears that this case should be transferred to the Court of Appeals for the Fifth Circuit. Indeed, respondent notes that since Dorival's removal proceedings took place in the immigration court in Oakdale, Louisiana, the United States Court of Appeals for the Fifth Circuit is the proper venue for any petition for review of a final order of removal. See 8 U.S.C. § 1252(b)(2) ("The petition for review should be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings."). Of course, Dorival did not file a petition for review with a circuit court; instead, he filed a § 2241 petition with this court. Nonetheless, according to § 1252(b)(2), the Fifth Circuit, and not the Second Circuit, is the proper court to which Dorival's petition should be transferred. The plain language of § 1631 appears to permit such a transfer. See 28 U.S.C. § 1631 (stating that whenever a court finds that it lacks jurisdiction, it "shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought") (emphasis added); cf. United States v. Prevatte, 300 F.3d 792 (7th Cir. 2002) (transferring matter pursuant to § 1631 to District of Colorado, where petitioner was incarcerated, for consideration as a § 2241 petition).
Conclusion
For the foregoing reasons, this case is transferred for lack of subject matter jurisdiction to the Court of Appeals for the Fifth Circuit.
In a supplemental petition, Dorival contends he is being illegally detained without bond pursuant to Section 236(c) of the INA, 8 U.S.C. § 1226(c). A decision on this issue, which upon cursory glance appears frivolous, should nevertheless be stayed pending the outcome of Dorival's claim that he is a "national" of the United States.
SO ORDERED.