1 On October 7, 2002, an immigration judge in Dallas, Texas, granted Petitioner

voluntary departure in lieu of deportation. Respondents acknowledge that the order of voluntary

departure converted to an order of removal by operation of law when Petitioner failed to depart

in a timely manner. 8 C.F.R. § 1240.26(b)(3), (d). (Respondents’ Mot. to Transfer at 2 n. 3).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARGARITA GARNER, )

Petitioner, )

)

v. ) 3:05-CV-0714-K

)

NURIA PRENDES, 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 of the District Court in

implementation thereof, this action has been referred to the United States Magistrate Judge. 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

 

Parties: Petitioner Margarita Garner is represented by retained counsel. Respondents are

Nuria Prendes, Field Operations Director of Detention and Removal operations for the Dallas

Office of the United States Immigration and Customs Enforcement (ICE), Alberto Gonzales,

Attorney General of the United States, and Michael Chertoff, Secretary of the Department of

 

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Homeland Security. The court issued process in this case.

Statement of Case: Petitioner seeks to challenge the order of removal on the following

grounds (1) retained counsel rendered ineffective assistance of counsel; (2) the immigration

judge failed to advise Petitioner of her right to raise her claim to lawful resident status; and (3)

the order to show cause is legally insufficient because the removal proceedings were not

commenced in compliance with the Immigration and Nationality Act, and thus the immigration

court was without jurisdiction. As relief, Petitioner requests a writ of habeas corpus ordering the

reopening of her immigration hearing. 

In response to this court’s order to respond to the habeas corpus petition, Respondents

filed a motion seeking transfer of the habeas petition to the United States Court of Appeals for

the Fifth Circuit in accordance with the REAL ID Act of 2005. Petitioner has not responded to

the motion for transfer as of the filing of this recommendation. 

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

 

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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

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

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

Petitioner’s habeas corpus petition filed under § 2241 is facially covered by amended

section 242(a). Accordingly, the Court should transfer this case to the Fifth Circuit Court of

Appeals and administratively close the matter in the district court.

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court grant Respondents’

motion to transfer this case to the Fifth Circuit Court of Appeals and administratively close this

habeas corpus action in the District Court.

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

Garner and to counsel for the government.

Signed this 8th day of June, 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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