Memorandum Opinion and Order–1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NAZIR NOORUDDIN CHARANIA, and §

MUNIRA CHARANIA, and MONISHA §

CHARANIA, and ALI CHARANIA §

§

Petitioners, §

§

vs. § CIVIL ACTION NO. 3:04-CV-1262-R

§

EVELYN UPCHURCH, in her official §

capacity as Director of the BCIS, and §

ANGELA K. BARROWS, in her official §

capacity as the Dallas District Director §

for BCIS, and TOM RIDGE, in his §

official capacity as the Secretary of §

Homeland Security, and JOHN §

ASHCROFT, in his official capacity as §

Attorney General of the United States, §

§

Respondents. §

MEMORANDUM OPINION AND ORDER

Now before the Court is Respondents’ Motion to Transfer Petition for Habeas Corpus

to the Circuit Court of Appeals (filed June 15, 2005). This action is a petition for writ of

habeas corpus brought pursuant to 28 U.S.C. § 2241 by Nazir Nooruddin Charania, A73 577

729, and family members, who are subject to an order of deportation. Pursuant to the Real ID

Act of 2005, this case is transferred to the United States Court of Appeals for the Fifth Circuit,

and a stay of removal is granted pending review by that court.

I. BACKGROUND

On April 6, 1999, an immigration judge (IJ) in Dallas denied Petitioner’s application for

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

July 19, 2005

CLERK, U.S. DISTRICT COURT

 

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Memorandum Opinion and Order–2 

asylum and withholding of removal. See Answer filed August 17, 2004, Ex. 3, p. 29. The

Board of Immigration Appeals (BIA) affirmed the IJ’s decision and dismissed the appeal on

August 6, 2002. See Answer filed August 17, 2004, Ex. 4, p. 30. The instant petition of review

followed. Petitioners request that this Court stay the deportation of all members of the Charania

family and direct Respondents to re-open proceedings before the BIA in light of Petitioners’

claims of due process and ineffective assistance of counsel.

II. ANALYSIS

On May 11, 2005, the Real ID Act of 2005 (the “Act”) was enacted as part of the

Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and

Tsunami Relief, 2005. P.L. 109-13, 2005 HR 1268. Section 106 of the Act amended 8 U.S.C. §

1252(a) by adding the following:

(5) EXCLUSIVE MEANS OF REVIEW. --Notwithstanding any other

provision of law (statutory or nonstatutory), including section 2241 of

Title 28, or any other habeas corpus provision, and sections 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 an order of removal entered or issued under

any provision of this Act, except as provided in subsection (e). For

purposes of this Act, in every provision that limits or eliminates judicial

review or jurisdiction to review, the terms “judicial review” and

“jurisdiction to review” include habeas corpus review pursuant to section

2241 of title 28, United States Code, or any other habeas corpus provision,

sections 1361 and 1651 of such title, and review pursuant to any other

provision of law (statutory or nonstatutory).

8 U.S.C. § 1252(a)(5).

Section 106 of the Act also provides:

© TRANSFER OF CASES. -- If an alien’s case, brought under section

2241 of title 28, United States Code, and challenging a final

 

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Memorandum Opinion and Order–3 

administrative order of removal, deportation, or exclusion, is pending in a

district court on the date of the enactment of this division, then the district

court shall transfer the case (or the part of the case that challenges the

order of removal, deportation, or exclusion) to the court of appeals for the

circuit in which a petition for review could have been properly filed under

section 242(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1252),

as amended by this section, or under section 309(c)(4)(D) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.

1101 note). The court of appeals shall treat the transferred case as if it had

been filed pursuant to a petition for review under section 242, except that

subsection (b)(1) of such section shall not apply.

P.L. 109-13, Division B, § 106©. Upon transfer, the habeas corpus petition is treated as if it has

been originally filed as a petition for review. 

Petitioners’ habeas corpus petition filed under § 2241 challenges an order of removal

and, accordingly, must be transferred to the Fifth Circuit Court of Appeals.

III. CONCLUSION

For the reasons stated above, the Court finds the Real ID Act, Pub. L. No. 109-13 § 106,

119 Stat. 231 (2005), divested this Court of jurisdiction over Petitioner’s habeas suit as of May

11, 2005. Accordingly, the instant petition for a writ of habeas corpus is TRANSFERRED to

the United States Court of Appeals for the Fifth Circuit. It is further ordered that a removal of

Petitioners is STAYED until further order from the United States Court of Appeals for the Fifth

Circuit. 

It is so ORDERED.

Signed: July 19, 2005.

_________________________________

JERRY BUCHMEYER

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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