Philius v. Gaynor ( 2021 )

Case: 19-30800 Document: 00515721671 Page: 1 Date Filed: 01/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-30800 January 27, 2021
Summary Calendar Lyle W. Cayce
Clerk
Wilkens Philius,
Petitioner—Appellant,
versus
David Pekoske, Acting Secretary, U.S. Department of
Homeland Security; Robert M. Wilkinson, Acting U.S.
Attorney General,
Respondents—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:19-CV-701
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Wilkens Philius, former federal prisoner # 79257-004, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of subject-
matter jurisdiction. In his § 2241 petition, Philius challenged his detention
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-30800 Document: 00515721671 Page: 2 Date Filed: 01/27/2021
No. 19-30800
pursuant to a final order of removal and the order of removal itself, arguing
that the immigration judge lacked jurisdiction over the immigration
proceedings. On appeal, Philius contends that the district court had
jurisdiction over his § 2241 petition and that the order of removal should be
vacated.
Under 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 entered or
issued under any provision of this chapter.” 8 U.S.C. § 1252(a)(5); see
Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735
(5th Cir. 2005). On de novo review, we conclude that the district court
correctly determined, as did the Ohio district court in which Philius first
challenged the instant removal order, that the district court lacked
jurisdiction over Philius’s § 2241 petition. See § 1252(a)(5); Rios-Valenzuela
v. Dep’t of Homeland Sec., 506 F.3d 393, 396 (5th Cir. 2007); Philius v. Holder,
No. 1:11-CV-1500, 2011 WL 5509558, at *2 (N.D. Ohio Nov. 10, 2011)
(unpublished). The district court could not have transferred the petition to
this court as a petition for review because the petition was not pending on
May 11, 2005, the effective date of the REAL ID Act.
The judgment of the district court is AFFIRMED.
2