Meleance v. Board of Immigration Appeals

08-1466-pr
Meleance v. Board of Immigration Appeals
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 29th day of January, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
__________________________________________
Daniel Meleance,
Petitioner-Appellant,
v. 08-1466-pr
Board of Immigration Appeals,
U.S. Department of homeland Security,
Respondent-Appellee.
__________________________________________
FOR APPELLANT: Daniel Meleance, pro se, Rome, N.Y.
FOR APPELLEES: Lev L. Dassin, Acting United States
Attorney for the Southern District
of New York; Natasha Oeltjen, Ross
E. Morrison, Assistant United States
Attorneys, Of Counsel, New York,
N.Y.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
and DECREED, that the judgment of the district court be and
hereby is AFFIRMED and the motion for a stay of removal is
DENIED as moot.
Appellant Daniel Meleance, pro se, appeals from the
judgment of the district court dismissing his 28 U.S.C.
§ 2241 petition for lack of jurisdiction. Meleance also
moves for a stay of removal. We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
We review de novo a district court’s legal conclusion
that it lacked subject matter jurisdiction. See Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The REAL
ID Act of 2005, enacted May 11, 2005, amended federal law to
provide that “[n]otwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of title
28, United States Code . . . 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 entered or issued under any provision of this
Act[.]” 8 U.S.C. § 1252(a)(5). Since Meleance filed his
§ 2241 petition challenging his order of removal after the
2
enactment of the REAL ID Act, the district court therefore
lacked jurisdiction over his § 2241 petition.
The district court properly declined to transfer
Meleance’s petition to this Court. Although the REAL ID Act
directs district courts to transfer § 2241 petitions to the
appropriate Court of Appeals, that provision applies only to
petitions that were pending at the time the REAL ID Act was
enacted. See De Ping Wang v. Dep’t of Homeland Sec., 484
F.3d 615, 616-17 (2d Cir. 2007). Meleance filed his § 2241
petition well afterward.
Although 28 U.S.C. § 1631 permits a district court to
transfer an appeal mistakenly filed in the wrong court, the
district court may do so only if the “appeal could have been
brought at the time it was filed or noticed.” 28 U.S.C.
§ 1631. A petition for review of a Board of Immigration
Appeals decision must be filed within 30 days of the
agency’s decision. 8 U.S.C. § 1252(b)(1). Transfer from
the district court is not permitted pursuant to § 1631 if
the petition is improperly and untimely filed in the
district court, because this Court would lack jurisdiction
to consider it had the petition been filed in this Court at
that time. See De Ping Wang, 484 F.3d at 618. The BIA
denied Meleance’s motion to reopen on September 12, 2007;
3
that constituted a final order, so he had until October 12,
2007 to file a timely petition for review. See Malvoisin v.
INS, 268 F.3d 74, 75 (2d Cir. 2001). Meleance did not file
his § 2241 petition until October 30, 2007 at the earliest.
The district court correctly declined to transfer the
untimely petition. See De Ping Wang, 484 F.3d at 618.
To the extent Meleance sought to raise a nationality
claim based on his father’s naturalization, this Court lacks
jurisdiction to consider it because it is untimely. See 8
U.S.C. § 1252(b)(1), 1252(b)(5)(C); Malvoisin, 268 F.3d at
75.
Finally, to the extent Meleance originally sought to
raise an as-applied Suspension Clause challenge to the REAL
ID Act of 2005, he fails to raise such a claim in his brief
and it is therefore waived on appeal. See Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”).
For the foregoing reasons, the judgment of the district
court is AFFIRMED and the pending motion for a stay removal
is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4