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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VASILIY OSTAPOVICH ROMANISHYN, : No. 05cv687

(A71 346 048) :

Petitioner : (Judge Jones)

:

v. :

:

HONORABLE MICHAEL CHERTOFF, :

ET. AL., :

:

Respondents. :

MEMORANDUM AND ORDER

June 21, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Transfer Petition to Third Circuit

(“the Motion”)(doc. 10) filed by the Respondents on June 9, 2005. For the reasons

that follow, the Motion shall be granted. 

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

Petitioner Vasiliy Ostapovich Romanishyn (“Petitioner” or “Romanishyn”)

is a detainee of the Bureau of Immigration and Customs Enforcement (“BICE”)

who is presently confined at the York County Prison in York, Pennsylvania. On

April 5, 2005, Romanishyn filed a Petition for Writ of Habeas Corpus pursuant to

28 U.S.C. § 2241 (“the Petition”) and a Motion for an Emergency Stay of

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Removal. (See Rec. Docs. 1-2). On April 7, 2005, we issued an Order staying

Petitioner’s deportation pending a decision on the Petition, directed the Clerk of

Court to serve a copy of the Petition and our Order of April 7, 2005 on

Respondents, the Immigration and Naturalization Service, and the United States

Attorney, and ordered a briefing schedule on the Petition. (See Rec. Doc. 3). 

We granted Respondents two motions for extensions of time within which to

file a response to the Petition. The instant Motion and supporting brief was filed

on June 9, 2005. On June 16, 2005, Petitioner responded to the Motion. 

DISCUSSION:

In the Motion, Respondents argue that the Real ID Act of 2005 mandates

that the Court transfer the Petition to the Third Circuit Court of Appeals. 

Respondents assert that as Petitioner is challenging his order of removal, the Court

must transfer this case to the applicable circuit court of appeals, which is the Third

Circuit because the Immigration Judge (“IJ”) presiding over the underlying

proceedings signed the removal order in York, Pennsylvania. (Br. Supp. Mot.

Transfer Petition at 3). 

In his response to the Motion, Petitioner stated that he has no objection but

notes that the Real ID Act mandates only the transfer of that portion of the Petition

that challenges the legality of the final order of removal. Finally, Petitioner

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 We note that pursuant to the Third Circuit Court of Appeals preferred procedures, any

stay previously issued by the District Court shall remain in place during and after transfer of the

case to the Court of Appeals. The Government may move in the Court of Appeals to vacate the

stay if appropriate. 

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maintains that should the stay of deportation imposed by this Court be challenged

in this Court, Petitioner would oppose the transfer of the case at least until the

Third Circuit Court of Appeals accepted jurisdiction and Petitioner could request a

stay before the Third Circuit.1

 

In the Petition, Romanishyn seeks his immediate release from custody, an

order that the IJ’s removal order be declared null and void, a declaration that

refugee status does not automatically terminate when an alien adjusts to lawful

permanent residence, as well as an award of reasonable costs and attorney fees

under the Equal Access to Justice Act. (See Rec. Doc. 1 at 14-15; see also Rec.

Doc. 2). 

For the reasons that follow, to the extent that Petitioner seeks his immediate

release from detention, this Court shall retain jurisdiction over this claim. To the

extent that Petitioner is challenging his order of removal, we shall transfer this

claim to the Third Circuit Court of Appeal pursuant to the Real ID Act. 

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, Pub.L.No. 109-13 (May 11, 2005). Section 106 of the Real

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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)). 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); see Soyemi v.

Chertoff, No. 05-mc-145 (M.D. Pa. May 26, 2005)(J. McClure). If a habeas

petition is pending in a district court on May 11, 2005, section 106(c) of the Real

ID Act provides that a district court must transfer the petition (or the portion of the

petition relating to removal) to the applicable court of appeals. 

As Respondents submit, on September 1, 2004, an IJ sitting in York,

Pennsylvania ordered Petitioner removed from the United States to Ukraine. In an

order dated February 18, 2005, the Board of Immigration Appeals dismissed

Petitioner’s appeal. Id. at 1; see also Rec. Doc. 1 at ¶¶ 12-14. Respondents

accurately submit that Petitioner’s claim regarding his order of removal must be

transferred to the Third Circuit Court of Appeals pursuant to the Real ID Act since

the IJ in Petitioner’s case signed the removal order in York, Pennsylvania. 

See 8 U.S.C. § 1252(b)(2).

To the extent that Petitioner contends that his continued detention violates

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Zadvydas v. Davis, 533 U.S. 678 (2001), and seeks the immediate release from

detention, this Court should retain jurisdiction over this claim. See Real ID Act, §

106(c); see also Rec. Doc. 1 at 13-14. Therefore, pursuant to the Real ID Act,

Petitioner’s claim seeking immediate release from detention shall not be

transferred to the Third Circuit Court of Appeals. See id.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Respondents’ Motion to Transfer Petition to Third Circuit (doc. 10) is

granted in part and denied in part to the following extent:

a. To the extent that Romanishyn is seeking immediate release

from detention, this Court shall retain jurisdiction over that

claim.

b. Respondents shall file a response to Romanishyn’s claim, 

seeking immediate release from detention, in this Court within

twenty (20) days of the date of this Order. 

c. To the extent that Romanishyn is challenging his order of

removal in the Petition, the Court shall transfer the Petition to

the Third Circuit Court of Appeals pursuant to the Real ID Act.

2. The Clerk shall transfer the portion of the record in which

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Romanishyn is challenging his order of removal to the Third Circuit

Court of Appeals pursuant to the Real ID Act. 

s/ John E. Jones III

John E. Jones III

United States District Judge

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