Monteiro v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-23-2008
Monteiro v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4830
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"Monteiro v. Atty Gen USA" (2008). 2008 Decisions. Paper 1717.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4830
IBRALTINO CARLOS MONTEIRO,
Petitioner
v.
Attorney General of the United States,
Respondent
___________________
On Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A76-487-306
Initially Docketed as an Appeal from NJ DC No. 06-cv-03010
Prior to the Enactment of the Real ID Act of 2005
Submitted under Third Circuit LAR 34.1(a)
August 3, 2007
Before: BARRY, CHAGARES and ROTH, Circuit Judges
(Opinion filed January 23, 2008 )
_________
OPINION
__________
PER CURIAM
This matter comes to us as a transfer from the United States District Court for the
District of New Jersey, ostensibly pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13.
We agree that we lack jurisdiction to consider the matter, and will therefore dismiss it.
Ibraltino Carlos Monteiro filed a petition for a writ of mandamus in the District Court
in June of 2006 pursuant to 28 U.S.C. § 1361. Monteiro claimed that he was eligible for
derivative citizenship and argued that he was barred from citizenship only because of the
Government’s delay in adjudicating an application. He sought to have the Court direct the
Government to approve nunc pro tunc an application for citizenship effective July 16, 1999
(a day before his eighteenth birthday). In the meantime, an Immigration Judge (IJ) entered
an order of removal against Monteiro on August 4, 2006. On November 3, 2006, Monteiro
filed a motion for stay of removal with the District Court, noting that he feared he would be
removed before the District Court entered a decision on his mandamus petition. The Board
of Immigration Appeals (BIA) dismissed Monteiro’s appeal of the IJ’s decision on
November 15, 2006.
The District Court entered a decision on November 17, 2006, denying Monteiro’s
petition for a writ of mandamus on the merits. No doubt in an abundance of caution, the
2
Court also construed Monteiro’s motion for a stay of removal as a petition for review of a
final order of removal. The Court ordered that the stay motion be transferred to this Court
pursuant to the REAL ID Act.
Monteiro’s stay motion, to the extent it could be construed as a petition for review,
was filed after the May 2005 enactment date of the REAL ID Act, and thus the District Court
did not have jurisdiction over the petition and was not authorized by the REAL ID Act to
transfer it to this Court. See 8 U.S.C. § 1252(a)(5); REAL ID Act § 106(a), (c), Pub. L. No.
109-13 Div. B (permitting transfer of habeas petitions pending in district courts on the May
11, 2005 enactment date). Furthermore, because the stay motion, if it was meant to be a
petition for review of the BIA’s decision, was filed prematurely;1 and, if it was meant to be
a petition for review of the IJ’s decision, was filed more than 30 days after that decision; it
is untimely as a petition for review, see 8 U.S.C. § 1252(b)(1),2 and the District Court lacked
authority to transfer the petition under the general transfer statute, see 28 U.S.C. § 1631
(authorizing transfer to any court in which the action could have been brought at time it was
filed). Accordingly, Monteiro’s “petition” is not properly before the Court and is, as argued
by Respondent, otherwise untimely.
1
The Government incorrectly states that Monteiro did not appeal the IJ’s decision to the
BIA. As noted above, the BIA did in fact issue a decision dismissing Monteiro’s appeal on
November 15, 2006. Monteiro’s stay motion, dated November 3, 2006, could not be
considered as a petition for review of that decision.
2
The statutory waiver of the 30 day filing requirement only applies to cases pending in
the District Court on the enactment date of the Real ID Act. See REAL ID Act § 106(c).
3
Monteiro did not file a notice of appeal from the District Court’s order (nor did he file
a notice of appeal from the District Court’s order denying his motion for reconsideration);
thus, we also lack jurisdiction to consider the District Court’s decision denying Monteiro’s
petition for a writ of mandamus.
For the foregoing reasons, we will dismiss the matter.