Joseph v. U.S. Immigration & Customs Enforcement

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2007
No. 07-20498 Charles R. Fulbruge III
Summary Calendar Clerk
Celestina Ifeacho Joseph
Plaintiff-Appellant
v.
U.S. Immigration and Customs Enforcement
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Texas
(07-CV-1993)
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Celestina Joseph (Joseph) a citizen of Nigeria, an immigration detainee in
the custody of the Department of Homeland Security, Bureau of Immigration
and Customs Enforcement (ICE) challenges the district court’s dismissal of her
habeas petition. The district court concluded that the “REAL ID Act” divested
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-20498
it of jurisdiction over 28 U.S.C. § 2241 petitions attacking removal orders and
dismissed her habeas petition for lack of jurisdiction. We find no error and affirm.
Petitioner was ordered removed from the United States and appealed that
order to the BIA which found her ineligible for cancellation of removal and
dismissed the appeal on May 11, 2005. On July 21, 2005, the BIA denied a
request for reconsideration of the order. The BIA later denied a motion to
reopen on January 25, 2006. On May 13, 2007, the BIA denied another motion
to reopen to apply for cancellation of removal filed by petitioner on grounds that
her husband would suffer a hardship. The BIA further denied her request to
apply for relief under the United Nations convention against torture because the
motion was untimely and barred by the applicable statue of limitations. On
June 5, 2007, the BIA denied petitioner’s untimely motion to reopen her claim
with respect to human trafficking. Joseph filed her application for habeas
corpus under 28 U.S.C. § 2241 with the district court on June 22, 2007. The only
BIA orders issued within 30 days of the date petitioner sought relief in the
district court are the May 18, 2007 and the June 5, 2007 orders denying Joseph’s
motions to reopen.
The district court concluded that the REAL ID Act divested it of
jurisdiction over Joseph’s § 2241 petition. This is clearly correct. See Hernandez
Castillo v. Moore, 436 F.3d 516, 518 (5th Cir. 2006); Rosales v. Bureau of
Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005).
The district court further observed that because this petition was filed
after the enactment of the REAL ID Act of 2005, the transfer provision found in
§ 106 of the REAL ID Act is not applicable to this case. See De Ping Wang v.
Department of Homeland Security, 484 F.3d 615, 616 (2d Cir. 2007). We agree.
Because the petitioner’s habeas petition was not filed until approximately two
years after the enactment of the REAL ID Act, the district court correctly
concluded that it is not transferable under § 106(c).
2
No. 07-20498
Petitioner makes no arguments to us regarding why or how the district
court erred in concluding that it had no jurisdiction over petitioner’s habeas
petition. Joseph also does not argue that the district court had authority to
transfer her petition to this court. In her brief to us she simply rehashes the
arguments she made to the BIA as to why she should be entitled to cancellation
of removal.
The district court correctly concluded that it had no jurisdiction to consider
Joseph’s habeas petition. The district court judgment is therefore
AFFIRMED.
3