Dorival v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-60725
Summary Calendar
JEAN A. DORIVAL,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent-Appellee.
--------------------
28 U.S.C. § 2241 petition transferred
from the United States District Court
for the Eastern District of New York
USDC No. 1:02-cv-06162-DGT
A91 420 735
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Haitian citizen Jean Dorival filed a 28 U.S.C. § 2241
petition for writ of habeas corpus in district court for the
Eastern District of New York challenging the Immigration Judge’s
order of removal from the United States. In his petition he
asserted a claim that he was a national of the United States.
The district court transferred Dorival’s habeas corpus petition
to this court. Dorival requests a stay of removal; that request
*
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that this opinion should not be published and is not precedent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. 03-60725
-2-
is DENIED. The Respondent, Attorney General Ashcroft, moves for
dismissal of the case for lack of jurisdiction and, in the
alternative, for summary affirmance. Ashcroft’s motion for
summary affirmance is DENIED. Dorival moves for leave to file an
out-of-time response to Ashcroft’s motion for summary affirmance;
Dorival’s motion is DENIED.
28 U.S.C. § 1631 permits a transfer if this court would have
been able to exercise jurisdiction on the date that the case was
filed in the district court, the district court lacked
jurisdiction over the case, and the transfer is in the interest
of justice. Dorival filed his 28 U.S.C. § 2241 petition in the
district court before he exhausted his administrative remedies
before the Board of Immigration Appeals. Therefore, this court
could not have exercised jurisdiction over the petition on the
date that Dorival filed the petition in district court. See
Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th Cir. 2001); 8
U.S.C. § 1252(d)(1) (a court may review a final order of removal
only if the alien has exhausted all administrative remedies as of
right).
DISMISSED for lack of jurisdiction.