1 Respondents acknowledge that a final order of voluntary departure converts to an

order of removal by operation of law if the alien fails to timely depart in accordance with the

order. 8 C.F.R. § 1240.26(b)(3), (d). (Mot. to Dism. at 4 n. 4, citing the prior version at

240.26(c)(d)).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MORTAZA NASSERIAN, )

Petitioner, )

)

v. ) 3:04-CV-0599-P

)

TOM RIDGE, et al., )

Respondents. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order filed on February 22,

2005, the District Court concluded that Petitioner was “in custody” for purposes of habeas

corpus jurisdiction, and re-referred this action to the United States Magistrate Judge for further

proceedings. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2241 by an alien who is subject to an administratively final order of removal.1

Statement of Case: On September 9, 2002, an immigration judge (IJ) denied Petitioner's

application for cancellation of removal as a battered spouse and granted voluntary departure. 

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

February 19, 2004. The instant petition followed. Petitioner requests that this court reverse the

 

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2

decisions of the IJ and BIA, and grant his application for cancellation of removal as a battered

spouse.

On June 13, 2005, this court ordered the parties to file supplemental briefs addressing

whether this court has subject matter jurisdiction in light of the enactment of the Real ID Act. 

On June 29, 2005, the parties filed a joint stipulation in support of transfer of the habeas corpus

petition to the Court of Appeals for the Fifth Circuit.

 Findings and Conclusions: The Real ID Act of 2005, part of the "Emergency

Supplemental Application Act for Defense, The Global War on Terror, and Tsunami Relief,

2005," P.L. 109-13, 2005 HR 1268, 119 Stat. 231, was enacted on May 11, 2005. Section 106 of

the REAL ID Act amends § 242(a) of the Immigration and Nationality Act of 1952 ("INA"), 8

U.S.C. § 1252 (2000), by adding, inter alia, the following jurisdictional provision: 

(5) Exclusive Means of Review--Notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241 of title 28, United States Code,

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 of 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).

REAL ID Act § 106. 

The Real ID Act also amends § 1252 to remove jurisdiction of the District Courts and

transfers it to the Court of Appeals to review removal decisions: 

(c) TRANSFER OF CASES.--If an alien's case, brought under section 2241 of

 

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2 The plain text of section 106, read in conjunction with the provision governing

effective date (quoted below), makes it plain that the exclusive jurisdiction provision is intended

to apply to pending petitions under section 2241: 

*2 (b) EFFECTIVE DATE.--The amendments made by subsection (a) shall take effect upon the

date of the enactment of this division and shall apply to cases in which the final administrative

order of removal, deportation, or exclusion was issued before, on, or after the date of the

enactment of this division.

3

title 28, United States Code, and challenging a final 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 such section 242, except that

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

Real ID Act, § 106. Upon transfer, the habeas petition is treated as if it had been originally filed

as a petition for review.2

The parties agree that Petitioner’s habeas corpus petition filed under § 2241 is covered by

amended section 242(a). (See Joint Stipulation at 2). Accordingly, the court should transfer this

case to the Fifth Circuit Court of Appeals and administratively close the matter in the district

court. 

RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court transfer this case to

the United States Court of Appeals for the Fifth Circuit and administratively close this action as 

 

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4

a pending case in this district.

A copy of this recommendation will be transmitted to counsel for Petitioner Mortaza

Nasserian and to counsel for the government.

Signed this 11th day of July, 2005.

 

WM. F. SANDERSON, JR. 

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)

(en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district judge

of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain

error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law

accepted by the district court.

 

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