IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PIANTONI GOREA, : CIVIL ACTION NO. 4:CV-06-0804 

:

Petitioner : (Judge Muir)

:

v. : (Magistrate Judge Blewitt)

:

JOHN ASHCROFT, et al., :

:

Respondents :

.....................................................................................................................................................

PIANTONI GOREA, : CIVIL ACTION NO. 4:CV-06-0625

:

Petitioner : (Judge Muir)

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES DISTRICT COURT :

FOR THE DISTRICT OF CALIFORNIA, :

:

Respondent :

 REPORT AND RECOMMENDATION

I. Background.

On April 18, 2006, the Petitioner, Piantoni Gorea, an inmate at the York County Prison

(“YCP”) at York, Pennsylvania, filed, pro se, a Petition for Writ of Habeas Corpus pursuant to 

28 U.S.C. § 2241. (Doc. 1, Civil No. 06-0804). Petitioner filed an application for leave to proceed

in forma pauperis. (Doc. 3). 

On March 27, 2006, another Petition for Writ of Habeas Corpus filed by Petitioner Gorea

on March 6, 2006, was transferred to this Court from the United States District Court for the Central

District of California, Civil No. 06-0625, M.D. Pa., since Petitioner was confined at YCP, which is

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 1 of 13
1

In case number 06-0804, Petitioner incorrectly names the former Attorney General,

John Ashcroft, as a Respondent. He also incorrectly names James Ziglar, INS Commissioner, as

a Respondent. Neither of the named Respondents has custody of Petitioner. See 28 U.S.C. §

2242. In Civil Action No. 06-0624, as the California District Court noted, Petitioner also names

the wrong Respondent.

2Rule 4 provides in relevant part: “If it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and cause the petitioner to be notified.”

3

Petitioner also made a Motion to Stay his Removal while the Court determines if the

Immigration Judge erroneously denied him relief under CAT. (Doc. 1, Civil No. 06-0804). 

However, since we shall recommend that this case be consolidated and that it be dismissed for

lack of jurisdiction, we do not recommend that Petitioner’s Stay Request be granted by this

Court.

2

located in the Middle District of Pennsylvania.

The Court has not yet directed Respondents1 to respond to these Petitions. We now give

preliminary consideration to the Petitions pursuant to Rule 4 of the Rules Governing Section 2254

Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under

Rule 1 (b)). See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979).2 We find that

jurisdiction of the instant habeas petitions lies with the Third Circuit in light of the Real ID Act of

2005.3 

In case number 06-0624, Petitioner states that he is “contesting the charges of deportability

brought against him by Immigration and Custom Enforcement (ICE).” (Doc. 1, p. 1). Petitioner also

states that the Board of Immigration Appeals (“BIA”) committed legal error when it found him

deportable. (Doc. 1, p. 1). As relief in case number 06-0804, Petitioner requests this Court overturn

the Immigration Court’s denial of his application for deferral of removal under CAT. 

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3

In his 06-0625 Habeas Petition, Petitioner contends that ICE did not meet its burden of

establishing that he was removable due to a criminal conviction because it did not prove he

committed any offense. (Id., p. 3). As relief in his 06-0625 Petition, Petitioner requests the Court

to remand his removal proceedings back to ICE and the BIA, and that they be required to properly

prove his deportability. (Id.).

In both Petitioner’s case number 06-0804, in which Petitioner challenges the denial of his

request for relief under CAT, and Petitioner’s case number 06-0624, in which Petitioner only

challenges his Removal Order, he does not claim that his continued detention by ICE at YCP

violates his rights. Thus, we shall recommend that Petitioner’s case number 06-0625 be

consolidated with his case number 06-0804, and that the consolidated case be dismissed for lack

of jurisdiction.

We find that Petitioner, in case number 06-0625, is challenging his Removal Order since

he claims ICE failed to prove he committed any criminal offense which would render him

removable, and in case number 060804, is challenging the denial of his application for deferral of

removal under the Convention Against Torture (“CAT”). (Doc. 1, No. 06-0804). We do not find

that Petitioner, in either case number 06-0804 or case number 06-0625 is claiming that his current

detention by ICE at YCP is illegal or unconstitutional. Thus, we find that Petitioner’s Petitions

should be consolidated and dismissed for lack of jurisdiction. Therefore, we shall recommend that

Petitioner‘s consolidated Habeas Petition be dismissed. 

We find that Petitioner‘s Habeas Petitions, which petitions only challenge his removal order

and the denial of his request for deferral of removal under CAT, should be made to the Third

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4

Petitioner‘s October 31, 2005 Order of the Immigration Judge (“IJ”) denying his request

for asylum, withholding of removal and deferral of removal under CAT, attached as an exhibit to

his Argument and Factual Allegation filing Doc. 2, case no. 06-0804, indicates that it was issued

in York Pennsylvania. Thus, Petitioner‘s challenge to this Order of the IJ should be filed with the

Third Circuit Court of Appeals. 

5

Indeed, Petitioner attaches to his filing, Doc. 2, No. 06-0804, a copy of a Ninth Circuit

Court of Appeals Special Notice dated June 2, 2005, suggesting procedures, under the Real ID

Act, to transfer cases challenging removal orders to the Appeals Court. Petitioner also

inexplicably writes that his petition in Case No. 06-0804 is filed in the Central District of

California. Doc. 1. 

6

Since Petitioner filed his Habeas Petition after May 11, 2005, the effective date of the

Real ID Act, we can no longer recommend that this Petition be transferred to the Third Circuit

Court of Appeals. 

4

Circuit Court of Appeals pursuant to the Real ID Act of 2005, Pub. L. No. 109-13.4 We find that

since Petitioner is only claiming that the Immigration Court did not properly analyze his criminal

conviction which was the basis for finding him removable (case number 06-0625), and his eligibility

for deferral of removal under CAT (case number 06-0804, and since he requests this Court to

reverse his Removal Order and declare the IJ’s decision denying his application for deferral of

removal under CAT as in violation of CAT (Doc. 1, p. 5, No. 06-0804), the instant Petitions

challenging the Removal Order and the IJ’s October 31, 2005 Order should be consolidated and

dismissed for lack of jurisdiction.

5

 Since Petitioner is challenging the IJ’s October 31, 2005 Order

which, as noted, was issued in York, Pennsylvania, he should have filed his challenge to this IJ’s

Order with the Third Circuit Court of Appeals. Because this Court no longer has jurisdiction to hear

a habeas petition, or portions thereof, which challenges a final order of removal, we shall

recommend that Petitioner‘s Habeas Petition be dismissed.6

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II. Claims of Habeas Petition. 

In case number 06-0804, Petitioner indicates that he is a native and citizen of Romania who

entered the United States in 1992 as a political asylum refugee. He claims that if he is removed

from the United States to Romania, based on his political refugee status and his criminal record, he

will be taken into custody by Romanian Intelligence, and detained indefinitely and possibly

tortured. Petitioner challenges the IJ’s denial of his application for political asylum and for his

request for deferral of removal under CAT. Petitioner also challenges a decision of the BIA which

found that the detainment by Romanian Intelligence of returning refugees with criminal records

constitutes a lawful sanction. (Doc. 1, p. 2, case no. 06-0804). Petitioner claims that he is eligible

for asylum and deferral of removal under CAT and that the Immigration Court erred in denying his

stated applications and in ordering his removal. (Id., pp. 2-4). Therefore, Petitioner requests that

his removal order be reversed and that the IJ’s decision denying his application for deferral of

removal under CAT be reversed. (Id., p. 5). 

As stated, in Case No. 06-0625, Petitioner claims that ICE failed to establish he was

convicted of a criminal offense as was necessary to prove that he is removable. He requests this

Court to remand his case to ICE or the BIA to require ICE to prove that he is removable.

Petitioner‘s exhibit in Case No. 06-0804 shows that on October 31, 2005, an IJ denied

Petitioner’s request for asylum, his request for withholding of removal, and his request for deferral

of removal under CAT. (Doc. 2, No. 06-0804). In his Habeas Petition number 06-0804, Petitioner

requests this Court to overturn this decision of the IJ. Petitioner also requests, as noted, that a stay

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7

Since we recommend that this Habeas Petition be dismissed for lack of jurisdiction, we

also recommend that Petitioner submit his stay request to the Court of Appeals. 

6

of his removal be ordered by this Court until his claim that he is entitled to CAT relief is reviewed

by the Court. (Doc. 1, p. 5, No. 06-0804).7

Petitioner indicates that his removal from the United States to Romania has been ordered,

and that he appealed the Removal Order to the Board of Immigration Appeals (“BIA”). (Doc. 1,

p. 2, No. 06-0804). In case number 06-0624, Petitioner claims that ICE failed to prove that he was

convicted of a crime and, thus, that he was removable. In case number 06-0804, Petitioner claims

that the IJ erred in the decision dated October 31, 2005, by finding that he was not eligible for

asylum or deferral or withholding of removal under CAT. As relief, Petitioner requests this Court

to reverse the IJ’s October 31, 2005 Order. (Doc. 1, p. 5,No. 06-0804). Petitioner does not

challenge his detention by ICE pending his removal as unconstitutional in either of his Habeas

Petitions. 

As mentioned, the Petitioner‘s Petition in No. 06-0804 only challenges the IJ’s October 31,

2005 Order denying his requests for asylum or deferral of removal. Petitioner filed both of his

Habeas Petitions after the effective date of the Real ID Act, and requests that this Court reverse his

Removal Order and the IJ’s Order denying his request for CAT relief. In Case No. 06-0625,

Petitioner claims that his Removal Order is erroneous since ICE failed to establish he was convicted

of a crime, and thus failed to prove he was removable. Accordingly, at the time the present Habeas

Petitions were filed, this Court no longer had jurisdiction to review the Immigration Court’s final

Order of Removal and the IJ’s order denying Petitioner relief under CAT. 

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8 As mentioned, Petitioner makes no claim that his continued detention by ICE violates

Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).

7

Petitioner states that he is challenging the Immigration Court’s Orders and argues that the

decisions ordering his removal, denying his request for asylum, and deferral of removal were

erroneous and in violation of CAT.8 (Doc. 1, No. 06-0624, and Doc. 1, pp. 3-4, No. 06-0804). The

Petitioner, in both cases, only challenges his Removal Order and the IJ’s decision denying his stated

requests for relief from the order to remove him. 

III. Discussion.

Insofar as Petitioner challenges his removal order, claiming that ICE failed to prove that he

was removable, and challenges the IJ’s order denying his requests for asylum, withholding of

removal and deferral of removal under CAT, we find that the present Habeas Petitions should be

consolidated, and then dismissed for lack of jurisdiction. Since Petitioner contends only that his

removal order was erroneous and that the IJ’s October 31, 2005 Order violated CAT, this Court no

longer has jurisdiction over these claims under the Real ID Act of 2005. 

This Court in Soyemi v. Chertoff, No. 05-mc-145, p. 2 (M.D. Pa.), (May 26, 2005 Order, J.

McClure), stated as follows:

On May 11, 2005, the Real ID Act was signed into law. Emergency

Supplemental Appropriations Act for Defense, the Global War on Terror,

and Tsunami Relief 2005, Real ID Act of 2005, Pub.L.No. 109-13

(May 11, 2005) (“Real ID Act”). Section 106 of the Real ID Act amends

section 242 of the Immigration and Nationality Act (INA) so as to

strip this court of jurisdiction to hear habeas corpus petitions that

challenge final orders of removal. Real ID Act, § 106(a)(1) (adding

INA § 242(a)(5) (to be codified at 8 U.S.C. § 1252(a)(5)). 

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 7 of 13
9We note that the Real ID Act also provides that “a petition for review filed with an

appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an

order of removal entered or issued under any provision of this Act. . . .” Real ID Act § 106(a)(1)

(adding INA § 242(a)(5)) (to be codified at 8 U.S.C. § 1252(a)(5)). 

8

The proper venue for a petition for review is the court of 

appeals for the judicial circuit in which the immigration judge

completed the petitioner’s proceedings. 8 U.S.C. § 1252(b)(2).

As stated, since the IJ in our Petitioner‘s case signed the Removal Order and Order denying

Petitioner‘s requests for relief from removal in October 2005, and since Petitioner filed these

actions after May 11, 2005, Petitioner should have filed his claims via a petition for review with the

Third Circuit, and this Court should consolidate Petitioner’s cases and dismiss the consolidated

Petition. 

The Soyemi Court concluded that “[b]ecause we no longer have jurisdiction to hear habeas

corpus petitions challenging final orders of removal we transfer this case to the United States Court

of Appeals for the Third Circuit.” Id., p. 1. Thus, pursuant to the Real ID Act, this Court should

consolidate Petitioner’s cases and dismiss our Petitioner‘s consolidated Habeas Petition, which

solely challenges his final order of removal and the IJ’s Order denying his requests for asylum and

deferral of removal under CAT, for lack of jurisdiction. (Doc. 1, p. 5).9 

The Third Circuit in Bonhometre v. Gonzales, 414 F.3d 442, 445-446 (3d Cir. 2005), stated

as follows:

Congress amended section 1252 of Title 8 of the United States Code

via the Real ID Act of 2005, Pub.L. 109-13, 119 Stat. 231 (“Real ID Act”).

Under the new judicial review regime imposed by the Real ID Act,

a petition for review is now the sole and exclusive means of judicial

review for all orders of removal except those issued pursuant to

8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5)(1999 & Supp.2005).

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 8 of 13
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Our jurisdiction was also enlarged, as we now have the authority

to consider constitutional claims or questions of law raised in a 

criminal alien’s petition for review. 8 U.S.C. § 1252(a)(2)(D)(2005);

see Papageorgiou v. Gonzales, 413 F.3d 356, 358, 2005 WL 1490454,

* 2 (3d Cir. Jun.24, 2005) (noting that, while the Real ID Act permits

judicial review of constitutional claims or questions of law raised by

criminal alines, this Court’s jurisdiction remains nonetheless subject

to the unamended jurisdictional limitations of 8 U.S.C. § 1252).

Moreover, all habeas corpus petitions brought by aliens [FN4] that

were pending in the district courts on the date the Real ID Act

became effective (May 11, 2005) are to be converted to petitions

for review and transferred to the appropriate courts of appeals. 

See Real ID Act, Pub.L. 109-13, Div. B, Title I, § 1016(c). These

modifications effectively limit all aliens to one bite of the apple

with regard to challenging an order of removal, in an effort to

streamline what the Congress saw as uncertain and piecemeal review

of orders of removal, divided between the district courts (habeas

corpus) and the courts of appeals (petitions for review). See H.R. Conf.

Rep. No. 109-72, at 173-75 (2005).

FN4. This provision applies only to aliens who are challenging

an order of removal via habeas corpus. An alien challenging

the legality of his detention still may petition for habeas

corpus. See H.R. Conf. Rep. No. 109-72, at 175 (2005).

In Kamara v. Attorney General, 420 F.3d 202, 209 (3d Cir. 2005), the Court stated

as follows regarding claims under CAT:

Until May 11 of this year, an alien convicted of an aggravated felony

and removable on such grounds was statutorily barred from filing

a petition for review in the court of appeals challenging the BIA’s

finding that s/he was ineligible for relief under the CAT. See

8 U.S.C. § 1252(a)(2)(C); see also Bakhtriger v. Elwood, 360 F.3d

414, 420 (3d Cir. 2004); Patel v. Ashcroft, 294 F.3d 465, 468

(3d Cir. 2002). We held in Ogbudimkpa, however, that a district

court retains jurisdiction to consider claims alleging violations of the

CAT raised in a habeas corpus petition. 342 F.3d at 222; see also

28 U.S.C. § 2241. This jurisdictional framework was radically

overhauled on May 11, 2005, with the passage of the REAL ID Act

of 2005, Pub.L. No. 109-13, 119 Stat. 231. The provision relevant

to this appeal, Section 106(a) of the Act, amends 8 U.S.C. § 1252(a)(2)

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 9 of 13
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to eliminate the district court’s habeas corpus jurisdiction

(28 U.S.C. §§ 2241, 1361, and 1651) over final orders of removal

in nearly all cases. [FN4]. Section 106(a)(1)(B) provides that:

FN4. 8 U.S.C. § 1252(e) allows for very limited habeas

review in expedited removal cases brought under 8 U.S.C.

§ 1225(b).

Notwithstanding any other provision of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas corpus

provision, and section 1361 and 1651 of such title, a petition for

review filed with an appropriate court of appeals in accordance with

this section shall be the sole and exclusive means for judicial

review of any cause or claim under the United Nations Convention

Against Torture and Other Forms of Cruel, Inhuman, or Degrading

Treatment or Punishment, except as provided in subsection (e) of this

section. REAL ID Act § 106(a)(1)(B); 8 U.S.C. § 1252(a)(4). Section

106(a)(1)(A)(iii) of the Act, however, amends 8 U.S.C. § 1252 by 

adding a new provision, § 1252(a)(2)(D), which states that: Nothing

in subparagraph (B) or (C), or in any other provision of this Act

(other than this section) which limits or eliminates judicial review,

shall be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D).

In Toure v. Attorney General of U.S., 2006 WL 861187 (3d Cir. 2006), the Appeals Court

considered petitioner’s petition for review of a final order of the BIA which affirmed the IJ’s denial

of his application for asylum, withholding of removal and relief under CAT. 

Accordingly, Petitioner Gorea must file a petition for review with the Third Circuit regarding

his present challenges to his Removal Order as well as the IJ’s Order denying his requests for

asylum, withholding of removal, and relief under CAT.

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 10 of 13
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IV. Recommendation.

Based on the foregoing, we respectfully recommend that pursuant to the Real ID Act, this

Court should consolidate Case Number 06-0804 and Case No. 06-0625, and then dismiss

Petitioner‘s consolidated Habeas Petition, which challenges his final Order of Removal and the IJ’s

Order denying his requests for asylum and deferral of removal under CAT, since this Court lacks

jurisdiction over such claims. 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: April 25, 2006 

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 11 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PIANTONI GOREA, : CIVIL ACTION NO. 4:CV-06-0804 

:

Petitioner : (Judge Muir)

:

v. : (Magistrate Judge Blewitt)

:

JOHN ASHCROFT, et al., :

:

Respondents :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated April 25, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:06-cv-00804-MM Document 6 Filed 04/25/06 Page 12 of 13
13

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: April 25, 2006 

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