Gul v. Rozos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 19, 2006
Charles R. Fulbruge III
Clerk
No. 05-30327
Summary Calendar
AGHA N. GUL,
Petitioner-Appellant,
versus
MIKE ROZOS, District Director of BICE/DHS;
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:04-CV-1237-RGJ
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Agha N. Gul, an immigration detainee, filed a 28 U.S.C.
§ 2241 petition in which he challenged his continued detention
under Zadvydas v. Davis, 533 U.S. 678 (2001), argued that he
received inadequate medical care, and alleged that he was a
United States citizen. The district court denied the continued
detention claim, construed the medical care claim under Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971), and dismissed it without prejudice due to
*
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this opinion should not be published and is not precedent except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. 05-30327
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improper venue, and determined that it lacked jurisdiction over
the citizenship claim. Gul timely appealed.
We note first that the Real ID Act** stripped the district
courts of jurisdiction over 28 U.S.C. § 2241 petitions attacking
removal orders. See Rosales v. Bureau of Immigration and Customs
Enforcement, 426 F.3d 733, 735-36 (5th Cir. 2005). To the extent
that Gul’s petition challenged his continued detention rather
than the final order of removal, nothing in the Real ID Act
precluded the district court from adjudicating the claim. Gul
argues that his continued detention following his March 22, 2004,
removal order is unlawful because he has been detained for longer
than the six month period that the Supreme Court held was
reasonable in Zadvydas.
The district court held, and the record shows, however, that
Gul hampered his own removal in August 2004 by claiming that he
had pending litigation in the Supreme Court and that he knew the
whereabouts of Osama Bin Laden, thereby extending the removal
period of 8 U.S.C. § 1231(a)(1)(A). See Balogun v. INS, 9 F.3d
347, 350-51 (5th Cir. 1993). Nevertheless, Gul is still in
detention over one year after this interference. The Government
does not claim that Gul has continued to hinder removal efforts
and offers no explanation for the continued delay. Therefore, we
**
The REAL ID Act is part of the much broader Emergency
Supplemental Appropriations Act for Defense, the Global War on
Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat.
231 (May 11, 2005).
No. 05-30327
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vacate and remand to the district court for further proceedings
to determine whether “there is no significant likelihood of
removal in the reasonably foreseeable future” given the current
state of the case. Zadvydas, 533 U.S. at 701.
With the benefit of liberal construction, Gul also
challenges the district court’s dismissal of his inadequate
medical care claims. However, he does not brief the basis for
the district court’s dismissal, namely improper venue, and the
claim is deemed abandoned. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Therefore, the
district court’s judgment dismissing those claims is affirmed.
Finally, Gul asserts that he is a United States citizen,
having signed naturalization paperwork in 1985 while serving in
the army. Gul unsuccessfully raised this claim before the Bureau
of Immigration Affairs. To the extent that it challenges the
removal order, this claim was subject to transfer to the court of
appeals for treatment as a petition for review, and we now
construe it as such a petition. See 8 U.S.C. § 1252(a)(5)
& (b)(5); Real ID Act, Pub. L. 109-13, Div. B, Title I, § 106(c).
Petitions for review must be “filed in the court of appeals for
the judicial circuit in which the immigration judge completed the
proceedings.” 8 U.S.C. § 1252(b)(2) (1999 & Supp. 2005).
Because Gul’s removal proceedings were completed in Atlanta this
court is not the proper venue. See id. Due to the unfairness of
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requiring the parties to relitigate this issue in a new forum,
however, we will not raise the non-jurisdictional venue issue sua
sponte. See Jama v. Gonzales, __ F.3d __, No. 03-30675, 2005 WL
3047263 at *2 (5th Cir. Nov. 15, 2005). We conclude that Gul has
failed to show that he is a United States citizen. Gul fails to
show that his naturalization application was ever granted, and he
derives no special benefit from his military service during a
period not specified by statute. See 8 U.S.C. § 1440(a); see
also Petition of Yiu Nam Donn, 512 F.2d 808, 810 (3d Cir. 1975).
His petition for review is therefore DENIED.
Gul’s motions to stay deportation pending appeal, to file a
supplemental brief, to expedite the appeal, and for bail pending
appeal are denied.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.