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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

VINCENT DANIEL HOPPER, now known

as ANTOLIN ANDREW MARKS,

Petitioner,

v.

NEIL CLARK, et al.,

Respondents.

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CASE NO. C05-1812-RSL

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

On August 3, 2005, petitioner Vincent Daniel Hopper, now known as Antolin Andrew

Marks, proceeding pro se, filed a Petition for Writ of Habeas Corpus in the United States District

Court for the Northern District of California pursuant to 28 U.S.C. § 2241, alleging that he is a

United States citizen and that he should not be held in the custody of the United States

Immigration and Customs Enforcement (“ICE”). (Dkt. #22, Attach. #2). On October 31, 2005,

petitioner’s Habeas Petition (Dkt. #22, Attach. #2), Petition for Injunction (Dkt. #22, Attach. #3),

and Motion for Stay of Administrative Proceedings (Dkt. #22, Attach. #11), were transferred from

the Northern District of California to this Court because petitioner is in removal proceedings in

Tacoma, Washington, and is detained at the Northwest Detention Center in Tacoma, Washington.

(Dkt. #22). See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2724 (2004)(holding that the district of

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1

 Effective March 1, 2003, the Immigration and Naturalization Service was abolished

pursuant to the Homeland Security Act of 2002, 116 Stat. 2135, Pub. L. 107-296, codified at 6

U.S.C. § § 101, et seq., and its immigration functions were transferred to the Department of

Homeland Security.

REPORT AND RECOMMENDATION

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confinement is the proper venue for a petition for writ of habeas corpus under 28 U.S.C. § 2241).

Petitioner subsequently filed a First Amended Petition for Injunction under 28 U.S.C. § 2241.

(Dkt. #27). Petitioner asks this Court to stay his administrative proceedings and order his release

from ICE custody, pending the Court’s adjudication of his claim to United States citizenship.

(Dkt. #22, Attach. #2 at 4). Respondent has moved to dismiss, arguing that this Court lacks

subject matter jurisdiction to hear or review petitioner’s citizenship claim under 8 U.S.C. §

1252(b)(5). (Dkt. #34).

Having carefully reviewed the entire record, I recommend that petitioner’s habeas petition

(Dkt. #27) be DENIED and that respondent’s motion to dismiss (Dkt. #34) be GRANTED.

II. BACKGROUND AND PROCEDURAL HISTORY

Petitioner has used or has been known by over fifty aliases, including Vincent Daniel

Hopper, Wayne Ricky Elison Rudder, and Antolin Andrew Marks. (Dkt. #37 at L508-509-Pt. 1;

L567-Pt. 1; L571-Pt. 1). Petitioner’s fingerprints match the fingerprints of alien Wayne Ricky

Elison Rudder, who is a native a citizen of Trinidad and who was admitted to the United States

on or about March 7, 1974, as an immigrant. (Dkt. #37 at L383-84-Pt. 1; R1034-35-Pt. 1;

R1021-Pt. 1).

On or about September 24, 1991, the former Immigration and Naturalization Service 1

(“INS”) issued an Order to Show Cause (“OSC”), placing petitioner in deportation proceedings

and charging petitioner with being deportable from the United States under Sections

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REPORT AND RECOMMENDATION

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241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”), because of

his April 9 and 24, 1990, convictions for possession of a controlled substance. (Dkt. #37 at L555-

69-Pt. 1; R301-302-Pt. 1). Petitioner appeared for his deportation hearing before an Immigration

Judge (“IJ”) and admitted the allegations contained in the OSC and conceded deportability as

charged. Instead of deportation, petitioner filed an application for waiver of inadmissability under

INA § 212(c) and an application for asylum and withholding of deportation. On July 26, 1993,

the IJ denied petitioner’s applications, and ordered petitioner deported from the United States to

Trinidad on the charges contained in the OSC. (Dkt. #37 at R999-1021-Pt. 1).

Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). On

November 4, 1993, the BIA affirmed the decision of the IJ and dismissed petitioner’s appeal of

his deportation order. (Dkt. #37 at R1022-31-Pt. 1). On November 18, 1993, petitioner filed a

direct appeal of the BIA’s decision in the Ninth Circuit Court of Appeals. (Dkt. # 37 at R753-54-

Pt. 1). Petitioner also filed a Petition for Emergency Stay of Deportation in the United States

Court of Appeals for the District of Columbia Circuit, which was dismissed on December 6, 1993,

for improper venue. (Dkt. #37 at R755-57-Pt. 1). On December 8, 1993, petitioner filed a

Motion for Emergency Stay of Deportation with the United States Supreme Court, which was

denied the same day. (Dkt. #37 at R842-872-Pt. 1; L278-Pt. 1). On December 9, 1993, petitioner

was removed from the United States to Trinidad. On February 11, 1994, the Ninth Circuit denied

petitioner’s appeal for lack of jurisdiction. (Dkt. #37 at L269-70-Pt. 1; L274-Pt. 1).

On January 14, 1994, petitioner illegally reentered the United States without inspection.

On August 18, 2005, petitioner was arrested by a DHS special agent. Upon his arrest, petitioner

claimed that he was Daniel Vincent Hopper, born in Los Angeles, California, and that he had been

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REPORT AND RECOMMENDATION

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deported to Trinidad in 1993 illegally. (Dkt. #37 at R996-98-Pt. 1). A fingerprint comparison

performed by the DHS Forensic Laboratory showed that petitioner’s fingerprints matched the

fingerprints of an alien who went by the alias Ricky Elison Rudder who had been deported to

Trinidad on December 9, 1993. (Dkt. #37 at R1033-34-Pt. 1). On August 18, 2005, petitioner

was served with a Warrant for Arrest of Alien, a Notice of Custody Determination, and a Notice

to Appear, placing petitioner in removal proceedings and charging petitioner as removable for

entering the United States without being admitted or paroled, and for reentering the United States

after being ordered deported without being admitted or paroled. (Dkt. #37 at L530-35-Pt. 1).

On August 3, 2005, petitioner filed a Petition for Writ of Habeas Corpus in the United

States District Court for the Northern District of California. (Dkt. #22, Attach. 2). On October

19, 2005, United States District Judge Martin Jenkins transferred the case to this Court because

petitioner was confined at the Northwest Detention Center in Tacoma, Washington, and was in

removal proceedings in this district. (Dkt. #22, Attach. 22).

Petitioner’s removal proceedings based on the August 2005 Notice to Appear have

continued simultaneously with this case. On September 26, 2005, petitioner appeared before an

IJ and denied allegations 1, 2, 4, and 7 in the Notice to Appear, claiming that this was a case of

mistaken identity and that he was wrongfully removed in 1993. On October 12, 2005, petitioner

filed an application for asylum and withholding of removal. (Dkt. #37 at L583-576-Pt. 1). On

October 31, 2005, petitioner again appeared before an IJ and denied alienage. His case was

scheduled for trial on February 22, 2006, on the issues of removability and asylum from Trinidad.

(Dkt. #37 at R1043-1045-Pt. 1; Dkt. #39 at 3 n.1).

On January 17, 2006, respondent filed a Return and Motion to Dismiss. (Dkt. #34). On

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REPORT AND RECOMMENDATION

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January 31, 2006, petitioner filed a Traverse to the Return and Opposition to the Motion to

Dismiss. (Dkt. #38). On February 10, 2006, respondent filed a reply. (Dkt. #39). On March 23,

2006, petitioner was transferred to the custody of the Tacoma Police Department for extradition

to California pursuant to a September 1, 2005, warrant for petitioner’s arrest for a parole

violation. (Dkt. #59). On March 28, 2006, ICE filed a motion in the Immigration Court

requesting that petitioner’s pending removal proceedings be administratively closed because

petitioner was no longer in ICE custody. On March 29, 2006, the IJ issued an Order

administratively closing petitioner’s removal proceedings. (Dkt. #58, Ex. B).

On April 10, 2006, respondent filed a Renewed Motion to Dismiss for Lack of Jurisdiction

and Opposition to Petitioner’s Requests for Declaratory and Injunctive Relief. (Dkt. #58).

Respondent asserted that petitioner was no longer in ICE custody or subject to removal

proceedings and, therefore, petitioner’s habeas petition should be dismissed as moot. (Dkt. #58).

Respondent submitted documents indicating that petitioner had been transferred to the Pierce

County Jail on March 23, 2006, and that petitioner’s removal proceedings had been

administratively closed on March 29, 2006, because petitioner was taken into state custody

pursuant to an outstanding warrant and were considered no longer pending. (Dkt. #58, Exs. A,

B). Accordingly, on May 4, 2006, the undersigned issued a Report and Recommendation,

recommending that the Court deny petitioner’s habeas petition as moot. (Dkt. #66). Respondent

subsequently filed a response to the Report and Recommendation, indicating that petitioner had

returned to the Northwest Detention Center and ICE custody on April 11, 2006, and that his

removal proceedings were reopened on May 2, 2006. (Dkt. #67, Ex. A). Respondent indicated

that their renewed motion to dismiss for lack of jurisdiction based on petitioner’s transfer was no

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2

 Petitioner has filed numerous pleadings in this case, including two motions to compel,

two motions to stay, a motion for injunction, a motion for issuance of the writ, a motion to

appoint counsel, and a motion for judicial notice. (Dkts. #42, 44, 45, 52, 56, 57, 61, 64, 65, 88).

Petitioner’s continued requests for relief assert the same factual allegations and legal claims

regarding his alleged citizenship.

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longer applicable and that respondent continues to rest on his previously filed Return

Memorandum and Motion to Dismiss in response to petitioner’s habeas petition. (Dkt. #67).

On June 5, 2006, the Honorable Robert S. Lasnik issued an order adopting the Report and

Recommendation. (Dkt. #73). On June 14, 2006, petitioner filed a motion to reopen which the

Court construed as a motion for reconsideration. (Dkt. #76). On July 17, 2006, Judge Lasnik

granted petitioner’s motion for reconsideration and referred this matter to the undersigned for

consideration of respondent’s original motion to dismiss. (Dkt. #78). The petition and motion

to dismiss are now ready for review.2

III. DISCUSSION

A. The District Court Lacks Subject Matter Jurisdiction.

Petitioner challenges his ongoing immigration proceedings on the grounds that he is a

citizen of the United States and therefore not subject to removal. Respondent argues that this

action must be dismissed for lack of jurisdiction. (Dkts. #34, 39). The Court agrees with

respondent that the Court lacks jurisdiction, as such claims must be brought in the court of

appeals.

Section 242(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(5), is the

exclusive means of determining United States citizenship for aliens in removal proceedings. See

Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (holding that under INA § 242(b)(5) a

claim of U.S. nationality must be brought in the circuit court). That provision provides as follows:

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REPORT AND RECOMMENDATION

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If the petitioner claims to be a national of the United States and the court of appeals

finds from the pleadings and affidavits that no genuine issue of material fact about the

petitioner’s nationality is presented, the court shall decide the nationality claim.

INA § 242(b)(5), 8 U.S.C. § 1252(b)(5). Accordingly, claims of citizenship must be brought as

a petition for review of a final order of removal. Taniguchi, 303 F.3d at 955. If the court of

appeals finds that a genuine issue of material fact regarding the petitioner’s nationality is

presented, the statute provides for the transfer to the district court for an evidentiary hearing.

Section 1252(b)(5)(B) provides:

If the petitioner claims to be a national of the United States and the court of appeals

finds that a genuine issue of material fact about the petitioner’s nationality is

presented, the court shall transfer the proceeding to the district court of the United

States for the judicial district in which the petitioner resides for a new hearing on the

nationality claim as if an action had been brought in the district court under section

2201 of Title 28.

INA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B).

The Ninth Circuit has acknowledged that district courts “retain jurisdiction under 28

U.S.C. § 2241 when the petitioner has no other remedy.” Taniguchi, 303 F.3d at 955. Here,

however, a statutory remedy is available to petitioner to establish citizenship under the review

procedure of INA § 242(b)(5). Id. Accordingly, the Court is without jurisdiction to consider

petitioner’s citizenship claim.

B. Transfer to the Court of Appeals is Not Appropriate.

Title 28 U.S.C. § 1631 provides that if a civil action is filed and the court finds that there

is a want of jurisdiction, “the court shall, if it is in the interest of justice, transfer such action or

appeal to any such court in which the action or appeal could have been brought at the time it was

filed . . .” 28 U.S.C. § 1631. Thus, under section 1631, the Court must determine whether (1)

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the Ninth Circuit would have been able to exercise jurisdiction on the date the petition was filed

in this Court, (2) this Court lacks jurisdiction over this case, and (3) the transfer is in the interest

of justice. See Baeta v. Sonchik, 273 F.3d 1261, 1264 (9th Cir. 2001). Here, transfer is not

appropriate because the first requirement cannot be met for two reasons. First, the immigration

judge has not yet issued an order of removal. Second, if the immigration judge issues an order of

removal, petitioner must exhaust his administrative remedies by timely appealing the IJ’s decision

to the BIA. Because administrative remedies are available to petitioner, he must first exhaust them

before raising his citizenship claim in the court of appeals pursuant to 8 U.S.C. § 1252(b)(5). See

Taniguchi, 303 F.3d at 956. As such, petitioner’s habeas petition cannot be transferred to the

Ninth Circuit and must be dismissed.

IV. CONCLUSION

For the foregoing reasons, I recommend that respondent’s motion to dismiss be granted,

and that the action be dismissed with prejudice. A proposed Order accompanies this Report and

Recommendation.

DATED this 18th day of October, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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