Luna v. Holder Thompson v. Holder ( 2010 )


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  • 07-3796-ag; 08-4840-ag
    Luna v. Holder; Thompson v. Holder
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    _______________________________
    August Term, 2009
    (Argued: June 15, 2010                                              Decided: September 3, 2010)
    Docket Nos. 07-3796-ag, 08-4840-ag
    _______________________________
    WORKLIS LUNA,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., United States Attorney General,
    Respondent.
    _______________________________
    TASMANN ANTHONY THOMPSON,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., United States Attorney General,*
    Respondent.
    _______________________________
    CALABRESI, POOLER, and CHIN, Circuit Judges.
    _______________________________
    *
    Eric H. Holder, Jr., is automatically substituted as the respondent in both of the above-
    captioned cases pursuant to Federal Rule of Appellate Procedure 43(c)(2).
    The government has moved to dismiss the above-captioned petitions for review as
    untimely. Because the REAL ID Act did not divest district courts of habeas jurisdiction to
    consider petitioners’ claims that they were prevented by circumstances beyond their control from
    filing timely petitions for review, we need not decide whether the 30-day filing requirement
    would otherwise violate the Suspension Clause of the U.S. Constitution. Therefore, while, in the
    circumstances of the cases before us, we lack jurisdiction to review petitioners’ final orders of
    removal, district courts retain jurisdiction over petitioners’ claims that they were unable to file a
    timely petition for review because of circumstances created by the government or ineffective
    assistance of counsel. Accordingly, petitioners may seek relief pursuant to 
    28 U.S.C. § 2241
    ,
    and we transfer the petitions to the district court pursuant to 
    28 U.S.C. § 1631
     so that they may
    have the opportunity to do so.
    WORKLIS LUNA, pro se.
    TASMANN ANTHONY THOMPSON, pro se.
    BRENDEN P. HOGAN and JENNIFER R.
    KHOURI, Office of Immigration Litigation, U.S.
    Department of Justice, for Respondent.
    JENNIFER CHANG NEWELL (Lee Gelernt, on
    the brief) American Civil Liberties Union, for
    amicus American Civil Liberties Union.
    ________________________________
    POOLER, Circuit Judge:
    Petitioners Worklis Luna and Tasmann Anthony Thompson have filed petitions for
    review of final orders of removal issued by the Board of Immigration Appeals (“BIA”). The
    government has moved to dismiss the petitions as untimely. Petitioners Luna and Thompson
    -2-
    concede that their petitions are untimely, but allege that circumstances beyond their control –
    ineffective assistance of counsel and circumstances created by the government, respectively –
    prevented them from filing timely petitions for review.
    Section 1252(b)(1) of Title 8 of the United States Code requires that a “petition for
    review must be filed not later than 30 days after the date of the final order of removal.” This 30-
    day filing requirement is jurisdictional and not subject to equitable tolling. Ruiz-Martinez v.
    Mukasey, 
    516 F.3d 102
    , 105-06 (2d Cir. 2008) (citing Malvosin v. INS, 
    268 F.3d 74
    , 75-76 (2d
    Cir. 2001)). Prior to 2005, an alien who missed the 30-day deadline could still file a petition for
    a writ of habeas corpus pursuant to 
    28 U.S.C. § 2241
    . See Luya Liu v. INS, 
    293 F.3d 36
    , 40 (2d
    Cir. 2002) (citing INS v. St. Cyr, 
    533 U.S. 289
    , 314 (2001)). After the enactment of the REAL
    ID Act, Pub. L. No. 109-13, § 106(a), 
    199 Stat. 231
     (May 11, 2005), however, a petition for
    review became the exclusive means available for challenging a final order of removal. 
    8 U.S.C. § 1252
    (a)(5), (b)(9). In Ruiz-Martinez, we held that the provisions of the REAL ID Act
    eliminating habeas jurisdiction over final orders of removal, combined with the 30-day deadline,
    did not facially violate the Suspension Clause of the U.S. Constitution. 
    516 F.3d at 105-06
    .
    However, Ruiz-Martinez did not rule out the possibility that the 30-day deadline could
    amount to a suspension of the writ as applied to an individual petitioner. In these appeals, we are
    presented with the issue of whether the 30-day filing requirement violates the Suspension Clause
    in cases in which the alien misses the deadline because of ineffective assistance of counsel or
    circumstances created by the government. Because we conclude that the REAL ID Act did not
    divest federal courts of habeas jurisdiction to consider such claims, we need not decide whether
    the 30-day filing requirement would otherwise violate the Suspension Clause. Therefore, we
    -3-
    hold that while, in the circumstances of the cases before us, we lack jurisdiction to review
    petitioners’ final orders of removal, district courts retain jurisdiction over petitioners’ claims that
    they were unable to file a timely petition for review because of circumstances created by the
    government or ineffective assistance of counsel. Accordingly, petitioners may seek relief
    pursuant to 
    28 U.S.C. § 2241
    , and we transfer the petitions to the district court pursuant to 
    28 U.S.C. § 1631
     so that they may have the opportunity to do so.
    BACKGROUND
    I. Luna v. Holder, 07-3796-ag
    In December 2006, Luna, a native and citizen of the Dominican Republic, was charged in
    a Notice to Appear with removability pursuant to the Immigration and Nationality Act (“INA”)
    Section 237(a)(2)(B)(I), based on his conviction for a controlled substance violation, and Section
    237(a)(2)(A)(iii), based on his conviction for an aggravated felony. In a hearing before an
    immigration judge (“IJ”) in Napanoch, New York, Luna, appearing pro se, argued that he was a
    United States citizen based on his father’s naturalization. In May 2007, the IJ determined that
    Luna had not derived citizenship from his father, that his removability had been established by
    clear and convincing evidence, that he was statutorily ineligible for various forms of relief, and
    that he had not established a prima facie claim for deferral of removal under the Convention
    Against Torture. Accordingly, the IJ ordered Luna removed to the Dominican Republic.
    Through counsel, Luna appealed to the BIA, arguing that the IJ should have terminated his
    removal proceedings pending a decision on a motion to vacate his criminal conviction in state
    court. By an order issued July 20, 2007, the BIA dismissed Luna’s appeal.
    On September 5, 2007, Luna, pro se and detained at the Buffalo Federal Detention
    -4-
    Facility in Batavia, New York, filed a petition for review of the BIA’s decision. Luna sought
    “an enlargement of time to file a petition for review” because of his attorney’s “neglect, sudden
    loss of interest, and giving [Luna the] false impression that he would submit all the necessary
    papers and continue to represent [Luna].” That same month, the government moved to dismiss
    the petition for review, noting that the petition had been filed sixteen days after the expiration of
    the 30-day filing period prescribed by 
    8 U.S.C. § 1252
    (b)(1). In October 2007, Luna responded
    to the motion, explaining that his former attorney had sent a letter not to Luna, but to his mother.
    The attorney’s letter, which Luna attached to his opposition papers, stated that he did not believe
    that he could make any arguments in a petition for review that would warrant reversal of the
    BIA’s decision and informed Luna that the deadline for filing a petition for review was August
    20, 2007. Luna asserted that he “should have been notified by counsel at his place of detention
    to make sure that [Luna] received the correspondence in a timely manner, which would [have]
    allow[ed him] to file his petition within the thirty-day filing deadline.”
    II. Thompson v. Holder, 08-4840-ag
    In September 2007, Thompson, a native and citizen of Jamaica, was charged in a Notice
    to Appear with removability pursuant to INA Section 237(a)(2)(A)(ii), based on his convictions
    for two crimes involving moral turpitude not arising out of a single scheme of criminal
    misconduct, and Section 237(a)(2)(A)(iii), based on his conviction for an aggravated felony.
    Thompson, appearing pro se before an IJ in Hartford, Connecticut, filed no applications for
    relief. In January 2008, the IJ found him removable on the aggravated felony charge and ordered
    him removed to Jamaica. Thompson appealed to the BIA, asserting that he was denied his right
    to counsel and that he was innocent of the crimes underlying his convictions; the BIA dismissed
    -5-
    his appeal on April 28, 2008. In August 2008, the BIA denied Thompson’s motion for a stay of
    removal pending a motion to reopen to seek CAT relief, concluding that there was little
    likelihood the motion would be granted. On September 9, 2008, the BIA denied Thompson’s
    motion to reopen.
    On October 1, 2008, Thompson filed a “motion asking for time to appeal,” which was
    docketed in this Court as a petition for review; the construed petition challenged the BIA’s April
    28, 2008 order. Thompson explained, inter alia, that he had been detained in the Wyatt
    Detention Facility in Central Falls, Rhode Island, since June 2008,1 and that he was “unable to
    get [his] legal documents at this facility[.] ITS [sic] PROHIBITED.” The government
    subsequently filed a motion to dismiss the petition for review as untimely.2
    III. Amicus American Civil Liberties Union
    In February and August 2009, we ordered the appointment of pro bono counsel as amicus
    curiae and directed briefing on the following issue:
    [W]hether there is merit to an as-applied Suspension Clause challenge for a
    petitioner who lacked any reasonable opportunity to file a petition for review
    during the 30-day filing period because of circumstances created by the
    government, or because of attorney error, in light of our opinion in [Ruiz-
    Martinez v. Mukasey, 
    516 F.3d 102
     (2008)].
    1
    Prior to June 2008, Thompson was detained at a facility in Brooklyn, Connecticut.
    2
    In March 2009, it came to this Court’s attention that Thompson had been removed from
    the United States and was living in Jamaica. In May 2009, in response to an inquiry from the
    Court, the government maintained that the petition should be dismissed as untimely but
    acknowledged that this Court retains jurisdiction over the petition despite Thompson’s removal.
    See Nken v. Holder, 
    129 S. Ct. 1749
    , 1761 (2009) (“[A]liens who are removed may continue to
    pursue their petitions for review, and those who prevail can be afforded effective relief by
    facilitation of their return, along with restoration of the immigration status they had upon
    removal.”).
    -6-
    The American Civil Liberties Union (“ACLU”)’s Immigrants’ Rights Project was subsequently
    appointed as amicus counsel in both appeals.
    DISCUSSION
    I.
    The Suspension Clause of the U.S. Constitution provides that “the Privilege of the Writ
    of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
    public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. “Because of that Clause, some
    judicial intervention in deportation cases is unquestionably required by the Constitution.” St.
    Cyr, 
    533 U.S. at 300
     (internal quotation marks omitted). However, “the substitution of a
    collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s
    detention does not constitute a suspension of the writ of habeas corpus.” Ruiz-Martinez, 
    516 F.3d at 114
     (quoting Swain v. Pressley, 
    430 U.S. 372
    , 381 (1977)); Boumediene v. Bush, 
    553 U.S. 723
    , ___, 
    128 S. Ct. 2229
    , 2262 (2008) (“[T]he question becomes whether the statute
    stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress
    has provided adequate substitute procedures for habeas corpus.”).
    In the immigration context, Congress has long sought to limit habeas review while at the
    same time ensuring that aliens have an alternate forum in which to seek review of final orders of
    removal. Prior to 1996, an alien could challenge a removal order either in a petition for review
    filed in the court of appeals or in a petition for a writ of habeas corpus in the district court. See
    Ruiz-Martinez, 
    516 F.3d at 113
    . In 1996, Congress enacted the Antiterrorism and Effective
    Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigration
    Responsibility Act (“IIRIRA”), both of which amended the jurisdictional provisions of the INA,
    -7-
    
    8 U.S.C. § 1101
    , et seq. Section 401 of AEDPA, entitled “Elimination of Custody Review by
    Habeas Corpus,” repealed, inter alia, 8 U.S.C. § 1105a(a)(10) (1994), which had provided that
    “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof
    by habeas corpus proceedings.” Section 306(a)(1) of IIRIRA provided that final orders of
    removal would be subject to judicial review pursuant to the procedure governing review of final
    agency orders in 
    28 U.S.C. § 158
    . See 
    8 U.S.C. § 1252
    (a)(1). Section 306(b)(9) contained a
    consolidation provision known as a “zipper” clause, Reno v. American-Arab Anti-Discrimination
    Comm., 
    525 U.S. 471
    , 482 (1999), which consolidated all “[j]udicial review of all questions of
    law and fact . . . arising from” removal proceedings into one action in the court of appeals. 
    8 U.S.C. § 1252
    (b)(9) (2000). Finally, IIRIRA eliminated judicial review of final orders of
    removal against aliens convicted of certain criminal offenses. 
    8 U.S.C. § 1252
    (a)(2)(C) (2000).
    In INS v. St. Cyr, the Supreme Court, relying on “the longstanding rule requiring a clear
    statement of congressional intent to repeal habeas jurisdiction,” 
    533 U.S. at 298
    , held that neither
    AEDPA nor IIRIRA had eliminated habeas corpus review over final orders of removal under 
    28 U.S.C. § 2241
    , 
    id. at 314
    . While Section 401 of AEDPA had repealed the grant of habeas
    jurisdiction in 8 U.S.C. § 1105a(a)(10), “[n]either the title nor the text [of Section 401] makes
    any mention of 
    28 U.S.C. § 2241
    .” 
    Id. at 309
    . Likewise, the Court concluded that the provisions
    limiting judicial review in Section 306 of IIRIRA did not represent a clear and unambiguous
    repeal of habeas jurisdiction, reasoning that “[i]n the immigration context, ‘judicial review’ and
    ‘habeas corpus’ have historically distinct meanings.” 
    Id. at 311
    . The Court noted that if it were
    clear that St. Cyr – a criminal alien subject to the jurisdiction-stripping provision in 
    8 U.S.C. § 1252
    (a)(2)(C) – could raise his claims in another forum, it might be persuaded to interpret the
    -8-
    “zipper” clause in 
    8 U.S.C. § 1252
    (b)(9) as precluding habeas review. “But the absence of such
    a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional
    intent to preclude judicial consideration on habeas of such an important question of law, strongly
    counsels against adopting a construction that would raise serious constitutional questions.” 
    Id. at 314
    .3
    In response to the Supreme Court’s decision in St. Cyr, Congress passed the REAL ID
    Act, § 106, which amended various subsections of 
    8 U.S.C. § 1252
     to explicitly preclude habeas
    review under 
    28 U.S.C. § 2241
    . At the same time, to avoid the “serious constitutional questions”
    identified by the Supreme Court in St. Cyr, Congress restored judicial review in the courts of
    appeals over “constitutional claims or questions of law” for all aliens, including criminal aliens
    who had been barred from seeking judicial review under IIRIRA. 
    8 U.S.C. § 1252
    (a)(2)(D).
    After the REAL ID Act, it is now clear that “a petition for review filed with an
    appropriate court of appeals in accordance with [
    8 U.S.C. § 1252
    ] [is] the sole and exclusive
    means for judicial review of an order of removal,” 
    id.
     § 1252(a)(5), and that habeas review is no
    longer available for claims “arising from any action taken or proceeding brought to remove an
    alien from the United States,” id. § 1252(b)(9). In Ruiz-Martinez, we held that the REAL ID Act
    did not, on its face, violate the Suspension Clause because Congress had provided an adequate
    and effective substitute for habeas review in the form of a petition for review, and that the 30-
    3
    Although the petitioner in St. Cyr was a criminal alien, the Second Circuit subsequently
    held that habeas jurisdiction under 
    28 U.S.C. § 2241
     existed for non-criminal aliens as well. Liu,
    
    293 F.3d at 40
     (“The Court’s decision in St. Cyr does not suggest, expressly or implicitly, that its
    holding that Congress did not repeal § 2241 by any provision of AEDPA or IIRIRA applies only
    to criminal aliens.”).
    -9-
    day filing period gave an alien a “reasonable opportunity” to seek review of a final order of
    removal. 
    516 F.3d at 105-06, 114-17
    .
    Here, however, we are faced with a different situation than in Ruiz-Martinez. Petitioners
    could not have raised their claims regarding the timeliness of their petitions before the BIA
    because their claims arose after the entry of the final orders of removal. Nor could they have
    raised such claims in a timely petition in this Court because they only arose upon the expiration
    of the 30-day period within which they could have filed a timely petition for review. Thus, if the
    REAL ID Act is interpreted as precluding habeas review over petitioners’ claims, there is no
    forum in which petitioners could seek relief.4
    Moreover, petitioners raise precisely the type of constitutional claims for which habeas
    review, or an adequate and effective substitute, is most essential. An ineffective assistance of
    counsel claim is a constitutional claim that arises under the Due Process Clause of the Fifth
    Amendment. Omar v. Mukasey, 
    517 F.3d 647
    , 650 (2d Cir. 2008). Likewise, a claim that the
    government prevented a petitioner from filing a timely petition for review calls into question
    4
    The government argues that petitioners could have filed a motion to reopen with the
    BIA and then, if the BIA denied the motion, petitioners could have filed a petition for review of
    the order denying the motion to reopen within 30 days. For several reasons, we do not believe
    that a motion to reopen is an adequate and effective substitute under the Suspension Clause.
    First, there is no automatic stay of removal while a motion to reopen is pending. The granting of
    a stay is discretionary, 
    8 C.F.R. § 1003.2
    (f), and the motion to reopen is automatically
    terminated if the alien is removed while the motion is pending, 
    id.
     § 1003.2(d); Xue Yong Zhang
    v. Holder, – F.3d –, No. 09-2628-ag, 
    2010 WL 3169292
    , at *8 (2d Cir. Aug. 12, 2010). A
    procedure that allows the government to unilaterally terminate a petitioner’s claim for relief at
    any time does not meet the requirements of the Suspension Clause. Boumediene, 
    128 S. Ct. at 2259
     (adequate and effective substitute to habeas cannot be “subject to manipulation”).
    Moreover, “[t]he BIA’s decision to grant a motion to reopen is purely discretionary.” Burger v.
    Gonzales, 
    498 F.3d 131
    , 135 (2d Cir. 2007). A mechanism for review that “is wholly a
    discretionary one” is “an insufficient replacement” for habeas. Boumediene, 
    128 S. Ct. at
    2273-
    74.
    -10-
    whether the government has provided an adequate and effective substitute under the Suspension
    Clause and, therefore, whether there has been a suspension of the writ. See Boumediene, 
    128 S. Ct. at 2259
     (holding that the writ “must not be subject to manipulation by those whose power it
    is designed to restrain”); Bounds v. Smith, 
    430 U.S. 817
    , 822 (1977) (“[T]he state and its officers
    may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas
    corpus.” (quoting Ex Parte Hull, 
    312 U.S. 546
    , 549 (1941))). If petitioners lack a forum in
    which to raise such claims, then we are confronted squarely with the “serious constitutional
    questions” raised by the Supreme Court in St. Cyr. 
    533 U.S. at 315
    .
    We are mindful of the Supreme Court’s admonition in St. Cyr that “if an otherwise
    acceptable construction of a statute would raise serious constitutional problems, and where an
    alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute
    to avoid such problems.” 
    Id. 299-300
    . Here, the question is whether petitioners’ claims that
    circumstances beyond their control prevented them from filing timely petitions for review can be
    accurately described as “arising from” their removal proceedings, 
    8 U.S.C. § 1252
    (b)(9), or
    whether such claims may still be brought in a petition under 
    28 U.S.C. § 2241
    . If a petition for
    review is the “sole and exclusive means” for petitioners to make their claims regarding the
    timeliness of their petitions for review, and if we are jurisdictionally barred from considering
    such claims because of the 30-day filing requirement, then we would have to decide whether the
    30-day deadline, as applied to petitioners, would constitute a suspension of the writ of habeas
    corpus. Because we conclude that the REAL ID Act can be construed to preserve habeas
    jurisdiction over petitioners’ claims, however, we need not decide that question.
    II.
    -11-
    We begin our statutory analysis with the text of the statute itself. United States v. Nelson,
    
    277 F.3d 164
    , 186 (2d Cir. 2002). Section 1252(a)(5) of Title 8 of the United States Code, as
    amended by the REAL ID Act, provides:
    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 for
    judicial review of an order of removal entered or issued under any provision of
    this chapter, except as provided in subsection (e) of this section.
    Section 1252(b)(9) states:
    Judicial review of all questions of law and fact, including interpretation and
    application of constitutional and statutory provisions, arising from any action
    taken or proceeding brought to remove an alien from the United States under this
    subchapter shall be available only in judicial review of a final order under this
    section. Except as otherwise provided in this section, no court shall have
    jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas
    corpus provision, by section 1361 or 1651 of such title, or by any other provision
    of law (statutory or nonstatutory), to review such an order or such questions of
    law or fact.
    The ACLU urges us to read these provisions as applying only to review of final orders of
    removal and not to collateral issues such as those presented by petitioners. We agree that
    petitioners’ claims regarding the timeliness of their petitions cannot be characterized as a
    challenge to an “order of removal” under Section 1252(a)(5). The claims did not arise until after
    their orders of removal became final and could not have been raised before the BIA, nor would
    review of such claims require any inquiry into the validity of the removal orders or the agency’s
    actions in ordering petitioners’ removal.
    Section 1252(b)(9) contains somewhat broader language, applying to any claim “arising
    from” petitioners’ removal proceedings. If we were to adopt an expansive interpretation of this
    -12-
    provision, petitioners’ claims would fall within its scope. Petitioners’ claims “arise” from their
    removal proceedings in the sense that if petitioners had never been placed in removal
    proceedings, they would not have sought review in this Court, and we would not be confronted
    with questions regarding the timeliness of their petitions for review. In other words, if the phrase
    “arising from” is interpreted to mean “bearing a but-for causal relationship to,” then petitioners’
    claims are barred by Section 1252(b)(9).
    Alternatively, the phrase “arising from” could be interpreted as a catch-all provision
    designed to encompass all claims challenging removal orders, in other words, all claims over
    which the courts of appeals have exclusive jurisdiction under Section 1252(a)(5). The statutory
    language supports this interpretation. The “zipper” clause is a subsection of Section 1252(b),
    entitled “Requirements for review of orders of removal,” which applies only “[w]ith respect to
    review of an order of removal under subsection (a)(1).” 
    8 U.S.C. § 1252
    (b) (emphasis added);
    see St. Cyr, 
    533 U.S. at 313
     (“[Section 1252(b)(9)], by its own terms, does not bar habeas
    jurisdiction over [claims] not subject to judicial review under § 1252(a)(1).” (emphasis in
    original)).
    This narrower interpretation finds support in the legislative history of the REAL ID Act
    as well. The House Conference Report states that “section 106 [of the REAL ID Act] would not
    preclude habeas review over challenges to detention that are independent of challenges to
    removal orders. Instead, the [Act] would eliminate habeas review only over challenges to
    removal orders.” H.R. Rep. No. 109-72, at 175 (2005), reprinted in 2005 U.S.C.C.A.N. 240,
    300 (emphasis added). The Report also evidences an intent by Congress to avoid the Suspension
    Clause challenges raised by the Supreme Court in St. Cyr, making clear that the REAL ID Act
    -13-
    was intended “to give every alien a fair opportunity to obtain judicial review while restoring
    order and common sense to the judicial review process.” Id. at 174; see also id. at 175
    (“[S]ection 106 would give every alien one day in the court of appeals, satisfying constitutional
    concerns.”).
    Given our obligation to construe the statute to avoid constitutional problems and
    Congress’s clear intent to avoid such problems, we have no difficulty concluding that Section
    1252(b)(9) precludes habeas review only over direct challenges to final orders of removal.
    Because, as explained above, petitioners’ claims regarding the timeliness of their petitions do not
    constitute a challenge to the underlying orders of removal, petitioners may seek relief for such
    claims in the district court pursuant to 
    28 U.S.C. § 2241.5
    This conclusion is in line with those of our sister circuits, which have held that district
    courts retain habeas jurisdiction over claims that are collateral to or independent of removal
    orders. See Nnadika v. Att’y Gen., 
    484 F.3d 626
    , 632 (3d Cir. 2007) (After the REAL ID Act,
    jurisdiction under 
    28 U.S.C. § 2241
     still exists for claims that do not “directly implicate the order
    5
    The government argues that we should require petitioners, as a prudential matter, to
    exhaust their administrative remedies before seeking relief pursuant to 
    28 U.S.C. § 2241
    . Claims
    arising after the BIA has issued a final order of removal may be raised with the BIA by filing a
    motion to reopen. In re Compean, 
    25 I. & N. Dec. 1
    , 3 (A.G. 2009). Previously we have held
    that exhaustion before the BIA is appropriate to “avoid any premature interference with the
    agency’s processes,” to “afford[] the parties and courts the benefit of the agency’s expertise,”
    and to allow the agency to “compile a record which is adequate for judicial review.” Arango-
    Aradondo v. INS, 
    13 F.3d 610
    , 614 (2d Cir. 1994) (internal quotation marks omitted). None of
    these factors counsel in favor of requiring exhaustion of administrative remedies here. Because
    petitioners’ claims arose after the BIA entered its final order of removal, there is no danger that a
    habeas petition under 
    28 U.S.C. § 2241
     would interfere with the agency’s processes. Moreover,
    the BIA has no particular expertise in deciding claims that concern the filing of a petition for
    review in this Court. Finally, the district court – unlike this Court – has the ability to develop a
    factual record, obviating the need for the BIA to do so.
    -14-
    of removal”); Madu v. Att’y Gen., 
    470 F.3d 1362
    , 1366 (11th Cir. 2006) (claim that no removal
    order was entered did not seek review of removal order); Hernandez v. Gonzales, 
    424 F.3d 42
    ,
    42 (1st Cir. 2005) (REAL ID Act does not “preclude habeas review over challenges to detention
    that are independent of challenges to removal orders.”) (quoting H.R. Rep. No. 109-72 at 2873)).
    Further, in Singh v. Gonzales, the Ninth Circuit held that a claim that ineffective counsel
    prevented the filing of a timely petition for review could be brought in a 
    28 U.S.C. § 2241
    petition. 
    499 F.3d 969
    , 979 (9th Cir. 2007).6
    Of course, petitioners’ ultimate goal is to seek review of their removal orders, and this
    they could not do in a habeas petition under the plain meaning of Section 1252. Habeas review
    thus would be limited to the narrow question of whether ineffective assistance of counsel or
    circumstances created by the government prevented petitioners from filing a timely petition for
    review, and the only relief that petitioners could seek would be an order directing the BIA to
    reissue the final order of removal so that the 30-day period within which to file a timely petition
    for review would begin to run anew.7 See Singh, 
    499 F.3d at 979
    . “In other words, a successful
    6
    In an August 27, 2010 letter submitted pursuant to Federal Rule of Appellate Procedure
    28(j), the government notified this Court of a recently-decided Ninth Circuit case, Singh v.
    Napolitano, No. 07-16988, 
    2010 WL 3293696
     (9th Cir., Aug. 23, 2010). On August 31, 2010,
    the Court-appointed amicus counsel, ACLU Immigrants’ Rights Project, responded to the
    government’s letter. In Singh v. Napolitano, the Ninth Circuit required the petitioner, as a
    prudential matter, to exhaust his administrative remedies before seeking relief pursuant to 
    28 U.S.C. § 2241
    . 
    Id. at *3
    . For the reasons discussed in footnote 5, supra, we disagree with the
    Ninth Circuit’s reasoning.
    7
    The government concedes that federal courts have the authority to direct the BIA to re-
    issue final orders of removal. See, e.g., Dearinger ex rel. Volkova v. Reno, 
    232 F.3d 1042
     (9th
    Cir. 2000) (requiring the government to reenter the BIA’s order and restart the 30-day filing
    period).
    -15-
    habeas petition in this case will lead to nothing more than ‘a day in court’ for [petitioners], which
    is consistent with Congressional intent underlying the REAL ID Act.” Id.8
    Having determined that habeas review is available for petitioners’ claims regarding the
    timeliness of their appeal, the application of the 30-day filing deadline does not raise Suspension
    Clause concerns. Thus, we lack jurisdiction to hear their petitions for review. Ruiz-Martinez,
    
    516 F.3d at 105-06
    .
    III.
    Under 
    28 U.S.C. § 1631
    , we are required to transfer a case to another court when (1) we
    lack jurisdiction over the case; (2) another court would have had jurisdiction at the time of the
    filing; and (3) transfer is in the interest of justice. Ruiz v. Mukasey, 
    552 F.3d 269
    , 273 (2d Cir.
    2009). Because we conclude that the district courts – but not this Court – have jurisdiction to
    review petitioners’ claims, the first two prongs are met. Transfer pursuant to Section 1631 is in
    the interest of justice because it “would expedite . . . review” of petitioners’ claims. 
    Id. at 276
    .
    Additionally, because Thompson was removed to Jamaica during the pendency of this appeal, he
    likely would be barred from filing a new petition in the district court. Section 2241 “requires
    that the applicant must be ‘in custody’ when the application for habeas corpus is filed.” Carafas
    v. LaVallee, 
    391 U.S. 234
    , 238 (1968). Transferring the petition allows Thompson to pursue his
    claims.
    8
    We do not express any opinion on whether the district court should order the BIA to
    reissue the removal orders or on the merits of petitioners’ challenges to their underlying orders
    of removal.
    -16-
    The only remaining question is which district court has jurisdiction over petitioners’
    claims. While the general rule is that venue is proper in “the district of confinement,” Rumsfeld
    v. Padilla, 
    542 U.S. 426
    , 443 (2004), this rule “does not apply when a habeas petitioner
    challenges something other than his present physical confinement.” 
    Id. at 438
     (emphasis added).
    Here, petitioners do not challenge the fact of their detention, but rather their right to review of
    their removal orders. Thus, their claims are not “core [habeas] challenges” of the type subject to
    the “district of confinement” rule. Id. at 335. Instead, we look to “traditional venue
    considerations” to decide where to transfer the petitions. Braden v. 30th Judicial Circuit Court,
    
    410 U.S. 484
    , 493 (1973). Relevant factors include “(1) where all of the material events took
    place; (2) where the records and witnesses pertinent to petitioner’s claim are likely to be found;
    and (3) the convenience of the forum for both the respondent and the petitioner.” Henderson v.
    INS, 
    157 F.3d 106
    , 128 n.25 (2d Cir. 1998) (quoting Braden, 
    410 U.S. at 493-94
    ) (internal
    quotation marks omitted).
    For several reasons, we conclude that venue is proper in the districts in which petitioners’
    removal proceedings were completed. First, venue for any eventual petition for review will lie
    in the Second Circuit. See 
    8 U.S.C. § 1252
    (b)(2). If we were to find venue proper on the basis
    of some other principle, it is possible that we would have to transfer the petitions to a district
    court outside of this Circuit, which would not be bound by our decision in this case. If that court
    were to conclude that it did not have jurisdiction over petitioners’ claims, then our decision –
    which is based on the availability of habeas review – would be severely compromised. Second,
    it is convenient for both the government and petitioners to litigate the matter entirely within one
    Circuit, rather than bouncing around to different courts at different stages of the proceedings.
    -17-
    This way, all litigation will occur within the Second Circuit, which will aid in the efficient
    resolution of petitioners’ claims. Finally, because petitioners’ claims concern the filing of a
    petition for review in the Second Circuit, the locus of the events always will be in the Second
    Circuit, even if some material events occurred elsewhere.
    Because Luna’s removal proceedings were completed in Napanoch, New York, venue is
    proper for Luna’s petition in the Northern District of New York. Thompson’s removal
    proceedings were completed in Hartford, Connecticut; thus, venue is proper for Thompson’s
    petition in the District of Connecticut.
    CONCLUSION
    Pursuant to 
    28 U.S.C. § 1631
    , the petition for review in Docket No. 07-3796-ag is hereby
    TRANSFERRED to the United States District Court for the Northern District of New York, and
    the petition for review in Docket No. 08-4840-ag is hereby TRANSFERRED to the United
    States District Court for the District of Connecticut. Petitioner Luna’s removal is STAYED
    pending the resolution of his petition in the district court.
    -18-