1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DELROY SMITH : Civil No. 3:05-CV-0037

:

Petitioner :

: (Judge McClure)

v. :

:

JOHN ASHCROFT, et al. : A 35-545-149

:

Respondents :

O R D E R

June 20, 2005

BACKGROUND:

Petitioner Delroy Smith, an alien subject to an Ulster, New York immigration

judge’s final order of removal, is currently in the custody of Immigrations and

Customs Enforcement, and is detained at Pike County Correctional Facility, Lords

Valley, Pennsylvania. On January 6, 2005, Smith filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 challenging his detention without bail

and the immigration judge’s final order of removal. On that same date Smith also

filed a petition for an emergency stay of his removal pending the outcome of his §

2241 petition.

On January 7, 2005, we stayed Smith’s removal pending the outcome of his

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 1 of 6
1According to the Board of Immigration Appeals automated hotline, Smith’s

February 2, 2005 “motion to reopen BIA jurisdiction” is pending. The court is not

aware of whether Smith has sought an administrative stay of his removal from the

BIA. Filing a motion to reopen with the BIA does not stay the execution of an

order of removal. 8 CFR 1003.23(f). Whether Smith’s removal is stayed is legally

significant. If Smith is removed from the country he will no longer be entitled to

pursue a special motion to seek § 212(c) relief. 8 CFR § 1003.44(k)(1).

2

§ 2241 petition. On January 31, 2005, following the government’s court-ordered

initial response to the petition, Smith filed with this court a copy of his motion to

reopen deportation proceedings with the BIA, the purpose of which motion was to

allow him to pursue INA § 212(c) relief as set forth in INS v. St. Cyr, 533 U.S. 289

(2001). See 8 C.F.R. § 1003.44 (Rec. Doc. No. 6.)1 On June 2, 2005, following

the passage of the Real ID Act of 2005, the government filed a motion for a partial

transfer of Smith’s petition in regards to the removal order issued by the

immigration judge to the United States Court of Appeals for the Second Circuit.

We will now grant the government’s motion for a partial transfer of Smith’s

petition and will dismiss the remaining portion of Smith’s petition which challenges

his detention without bail.

DISCUSSION:

I. Partial Transfer of Smith’s Petition to the 

United States Court of Appeals for the Second Circuit

On May 11, 2005, President George W. Bush signed into law the Real ID

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 2 of 6
3

Act of 2005, H.R. 1268, 109th Cong. (2005) (enacted), Pub. L. No. 109-13, Div. B,

119 Stat. 231. Section 106 of the Real ID Act of 2005 amended section 242(a) of

the INA to provide that the sole and exclusive means for judicial review of an order

of removal shall be by petition for review in the applicable court of appeals, i.e., the

court of appeals in whose jurisdiction the immigration judge issued the final order

of removal. The effective date for the amendment was May 11, 2005. As part of

the Act, Congress included transitional rules that require a district court to transfer

any pending petition (or the portion of the petition relating to removal) to the

applicable court of appeals. Real ID Act of 2005 § 106(c), H.R. 1268, 109th Cong.

(2005) (enacted), Pub. L. No. 109-13, Div. B, 119 Stat. 231. Therefore, to the

extent Smith’s petition challenges the underlying immigration judge’s final order of

removal, Smith’s petition is transferred to the United States Court of Appeals for

the Second Circuit.

II. Dismissal of Remaining Claims in Smith’s Petition

Smith contends in his petition that his detention without an opportunity for

bail is unreasonable. The Supreme Court’s decision in Zadvydas v. Davis, 533

U.S. 678 (2001) requires that aliens in post final-order detention have the

opportunity to demonstrate that there is no reasonable likelihood that they will be

deported in the foreseeable future. Smith was taken into custody on December 20,

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 3 of 6
4

2004. Smith filed his petition challenging his detention within three weeks of

entering into ICE custody. Since January 7, 2005 his petition challenging his final

order of removal has been pending. Briefly after granting his stay the court became

aware of Smith’s pending special motion to reopen his removal proceedings before

the BIA in an effort to obtain INA § 212(c) relief. That motion is still pending

before the BIA. As noted above, if Smith is removed from the country he will not

be entitled to pursue his special motion seeking § 212(c) relief before the BIA.

Smith filed his petition well before the length of his custody reached the

presumptively reasonable limit of six months in post-removal custody. See

Zavydas v. Davis, 533 U.S. 678, 701 (2001). In fact, when Smith filed his petition

he had only briefly been in ICE custody, and although Smith has now been in

detention for more than six months, nearly all of that time Smith’s petition has been

under review, which has served to stay his removal, and thus that time is not

included in our calculation of whether the length of his detention is reasonable. See

INA § 241(a)(1)(B)(ii), 8 U.S.C. § 1231(a)(1)(B)(ii). Furthermore, the government

indicates Smith has failed to exhaust the administrative remedies available to him.

Therefore, to the extent his petition challenges his detention as unreasonable, it is

dismissed.

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 4 of 6
5

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The government’s motion to transfer a portion of Smith’s petition to the

Second Circuit is granted. (Rec. Doc. No. 9.) Smith’s petition, to the extent it

challenges the underlying Ulster, New York immigration judge’s final order of

removal, is transferred to the United States Court of Appeals for the Second

Circuit.

2. Smith’s claim that his detention without an opportunity for bail is

unreasonable is dismissed for the reasons stated above.

3. Smith’s stay of his removal shall remain in effect and may be lifted by the

Second Circuit, as this is the preferred practice of the Third Circuit in transferring

petitions pursuant to the provisions of the Real ID Act of 2005 to the Courts of

Appeals.

4. Smith’s motion to reopen his removal proceedings is denied. (Rec. Doc.

No. 6.) According to the BIA’s automated hotline, Smith’s motion to reopen

removal proceedings remains pending before the BIA.

5. The clerk is directed to transfer the portion of the petition challenging

Smith’s removal to the United States Court of Appeals for the Second Circuit. 

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 5 of 6
6

6. This order disposes of the remaining portion of the petition and closes

Smith’s case file in the Middle District of Pennsylvania.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:05-cv-00037-JFM Document 11 Filed 06/20/05 Page 6 of 6