Angelina Codina v. Michael Chertoff , 283 F. App'x 432 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2422
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Angelina Codina, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael Chertoff, Secretary of the *
United States Department of Homeland * [UNPUBLISHED]
Security; Mark Cangemi, Director of *
Detention and Removal, Minnesota *
District, United States Immigration and *
Customs Enforcement; Pat Carr, Jail *
Commander of Sherburne County Jail, *
*
Appellees. *
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Submitted: July 10, 2008
Filed: July 24, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Angelina Codina, a native of Uruguay and citizen of Canada, appeals the
district court’s1 dismissal of her 28 U.S.C. § 2241 petition for a writ of habeas corpus.
For the reasons stated below, we affirm.
To the extent Codina’s petition challenged her detention based on alleged
procedural and clerical flaws in her removal proceedings, it essentially challenged her
removal order, which the district court lacked jurisdiction to review in a habeas
proceeding. See 8 U.S.C. § 1252(a)(5) (“sole and exclusive means” for challenging
order of removal is to file petition for review with appropriate court of appeals); De
Ping Wang v. Dep’t of Homeland Sec., 484 F.3d 615, 618 (2d Cir. 2007) (REAL ID
Act of 2005 eliminated availability of habeas petitions as separate means of obtaining
judicial review of final orders of removal); cf. Haider v. Gonzales, 438 F.3d 902, 910
(8th Cir. 2006) (petitioner’s constitutional challenges to sufficiency of notice of
removal hearing was in effect challenge to ultimate order of removal, thus district
court’s proper course of action was to transfer habeas petition to circuit court under
REAL ID Act).
To the extent, however, Codina’s section 2241 petition challenged her detention
based on Zadvydas v. Davis, 533 U.S. 678 (2001), we agree with the district court that
the petition lacked merit. The record establishes that, at the time the district court
dismissed Codina’s petition, her removal had been stayed by the Second Circuit, and
she had a petition for review of her removal order pending before that court. Thus,
she was not yet under a final order of removal, and no violation of Zadvydas could
have occurred. See 8 U.S.C. § 1231(a)(1)(B)(ii) (if removal order is judicially
reviewed and reviewing court orders stay of removal, removal period begins on date
of court’s final order); Zadvydas, 533 U.S. at 689, 701 (aliens ordered removed may
not be detained indefinitely; alien is entitled to release if, after presumptively
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Franklin L.
Noel, United States Magistrate Judge for the District of Minnesota.
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reasonable six-month period to effect removal, there is “no significant likelihood of
removal in the reasonably foreseeable future”); Abdullah v. Hedrick, 392 F.3d 957,
959 (8th Cir. 2004) (de novo review of dismissal of § 2241 habeas petition).
Finally, we decline to address Codina’s assertion raised for the first time on
appeal that the district court should have released her on bond or granted her an
outright release pending the disposition of her petition before the Second Circuit. See
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
The judgment is affirmed. Codina’s pending motions are denied as moot.
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