(PC) Ramirez v. Gonzales et al, No. 2:2007cv00918 - Document 13 (E.D. Cal. 2007)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS recommending that this action be dismissed for lack of jurisdiction; ORDERING that 6 respondent's June 4, 2007 motion to rescind the transfer order is GRANTED. 4The May 23, 2007 order transferring this action to the Ninth Circuit Court of Appeals is GRANTED. The Clerk is directed to serve a copy of this order on the Ninth Circuit Court of Appeals. Objections to F&R due within 20 days signed by Judge Gregory G. Hollows on 8/30/07. (cc: USCA)(Kaminski, H)

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(PC) Ramirez v. Gonzales et al Doc. 13 Case 2:07-cv-00918-GEB-GGH Document 13 Filed 08/31/2007 Page 1 of 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LUIS AMILCAR RAMIREZ, 11 12 13 14 Petitioner, No. CIV S-07-0918 GEB GGH P vs. ALBERTO GONZALES, ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / 15 16 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant 17 to 28 U.S.C. § 2241. Petitioner alleges that he was convicted of illegal re-entry in violation of 8 18 U.S.C. § 1326. Petitioner requests that the court suspend his order of deportation. 19 District courts do not have habeas jurisdiction over final orders of removal. Puri 20 v. Gonzales, 464 F.3d 1038, 1040 (9th Cir. 2006). Jurisdiction to review final orders of removal 21 rests exclusively in the courts of appeals. Id. Accordingly, on May 23, 2007, the court ordered 22 this action transferred to the Ninth Circuit Court of Appeals. 23 On June 4, 2007, respondent filed a motion to rescind the transfer order and to 24 dismiss for lack of jurisdiction. Respondent correctly observed that the REAL ID Act provides 25 that habeas petitions challenging orders of removal filed after the May 11, 2005 effective date of 26 the act should be dismissed outright by the district court for lack of jurisdiction rather than 1 Dockets.Justia.com Case 2:07-cv-00918-GEB-GGH 1 Document 13 Filed 08/31/2007 Page 2 of 3 transferred to the Ninth Circuit. Id., at 1041. 2 However, in Puri, the Ninth Circuit also considered whether, in lieu of outright 3 dismissal, transfer of the case directly from the district court to the Ninth Circuit “in the interest 4 of justice” under 28 U.S.C. § 1631 would have been appropriate. Id., at 1042-1043. 5 Section 1631 provides that, in a civil action, if 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.” [Footnote omitted] 28 U.S.C. § 1631. An immigration case is “transferable” when the following three conditions are met: 1) the transferee court would have been able to exercise its jurisdiction on the date the action was misfiled; 2) the transferor court lacks jurisdiction; and 3) the transfer serves the interest of justice. 6 7 8 9 10 Id., at 1042-1043. 11 On July 10, 2007, the court ordered both parties to file further briefing addressing 12 whether the transfer of this action served the interests of justice. On July 26, 2007, respondent 13 filed further briefing, and on July 31, 2007, petitioner filed further briefing. 14 Respondent correctly argues that the transfer of this action is not appropriate 15 under 28 U.S.C. § 1631 because the Ninth Circuit would not have had jurisdiction of this action 16 when it was filed because petitioner’s order of removal was not final at that time. Rather, 17 petitioner had only received notice that the Immigration and Naturalization Service intended to 18 reinstate the prior order of removal from 1996.1 Petition, p. 3. No final order respecting that 19 intent had apparently issued at the time this case was filed On that ground, the court grants 20 respondent’s motion to rescind the transfer order.2 21 1 22 23 It is clear that petitioner is not challenging the 1996 order of removal. In any event, a challenge to the 1996 order is untimely. 8 U.S.C. § 1252(b)(1)(petition for review must be filed within 30 days of final order of removal). 2 24 25 26 Respondent also argues that to the extent petitioner claims he is eligible for an “INA § 212(c) waiver,” he has not exhausted his administrative remedies. Respondent goes on to argue that because exhaustion is a jurisdictional prerequisite to appellate review, petitioner could not have filed this action in the Ninth Circuit when it was filed in this court. Because it is clear that this action could not have been brought in the Ninth Circuit when it was filed in this court because petitioner’s order of removal was not final, the court does need not consider whether 2 Case 2:07-cv-00918-GEB-GGH 1 2 Document 13 Filed 08/31/2007 Page 3 of 3 In addition to rescinding the transfer order, for the reasons discussed above, the court recommends that this action be dismissed for lack of jurisdiction. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Respondent’s June 4, 2007, motion to rescind the transfer order is granted; 5 2. The May 23, 2007, order transferring this action to the Ninth Circuit Court of 6 Appeals is granted; 7 8 3. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit Court of Appeals; 9 10 IT IS HEREBY RECOMMENDED that this action be dismissed for lack of jurisdiction. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 13 days after being served with these findings and recommendations, petitioner may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge's 15 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 DATED: 8/30/07 /s/ Gregory G. Hollows 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 ram918.fr 23 24 25 26 petitioner is seeking an INA § 212(c) waiver. 3

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