Ojeda v. U.S. Department of Homeland Security , 413 F. App'x 986 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAUL OJEDA, No. 09-56837
Petitioner - Appellant, D.C. No. 2:09-cv-07612-PA-RC
v.
MEMORANDUM *
U.S. DEPARTMENT OF HOMELAND
SECURITY,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 11, 2011 **
Pasadena, California
Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.
Raul Ojeda appeals the district court’s summary dismissal of his 28 U.S.C. §
2241 habeas corpus petition. Ojeda argues that he was deported despite his claim
to United States citizenship, in violation of his constitutional rights. Because the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court correctly dismissed the petition based on lack of subject matter
jurisdiction, we affirm.
The district court did not err when it concluded that the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, precluded it from having subject matter
jurisdiction to consider Ojeda’s claims. Because Ojeda filed his habeas petition
after his removal from the United States, the district court did not have jurisdiction
over his petition. See Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir.
2008). Under Section 106(a) of the REAL ID Act, “a petition for review filed with
an appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Moreover,
constitutional claims or questions of law are also properly raised in a petition for
review before the court of appeals, not the district court. 8 U.S.C. § 1252(a)(2)(D).
Finally, while the record before us is scant, even “non-frivolous” claims to
citizenship must be brought under a petition for review with the appropriate court
of appeals. Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007). Because Ojeda has
been deported, he may also submit evidence of his citizenship to a United States
Consulate abroad.
We are also without jurisdiction to convert Ojeda’s § 2241 habeas petition
into a petition for review and to transfer it to ourselves under 28 U.S.C. § 1631. A
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petition for review of a final order of removal must be filed within 30 days of the
filing of the removal order. 8 U.S.C. § 1252(b)(1). Because Ojeda’s habeas
petition was filed more than 30 days after his final order of removal was entered,
we would lack jurisdiction over his petition for review had it been properly filed.
Thus, 28 U.S.C. § 1631 is inapplicable.
AFFIRMED.
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