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STIPULATION TO TRANSFER CASE

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KEVIN V. RYAN, CSBN 118321

United States Attorney

JOANN M. SWANSON, CSBN 88143

Assistant United States Attorney

Chief, Civil Division

EDWARD A. OLSEN, CSBN 214150

Assistant United States Attorney

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102

Telephone: (415) 436-6915

FAX: (415) 436-7169

Attorneys for Respondents

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

GHASSAN KHALIL MSALAM,

Petitioner,

v.

NANCY ALCANTAR, FIELD OFFICE

DIRECTOR OF SAN FRANCISCO

IMMIGRATION AND CUSTOMS

ENFORCEMENT; MICHAEL CHERTOFF,

SECRETARY FOR THE DEPARTMENT

OF HOMELAND SECURITY; ALBERTO

GONZALES, ATTORNEY GENERAL OF

THE UNITED STATES,

Respondents.

 

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No. C 05-1881-CW

STIPULATION TO TRANSFER

HABEAS PETITION TO THE UNITED

STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The petitioner, by and through his attorney of record, and respondents, by and through their

attorneys of record, hereby stipulate, subject to the approval of this Court, to transfer the petitioner’s

petition for writ of habeas corpus to the United States Court of Appeals for the Ninth Circuit pursuant

to the REAL ID Act.

On May 11, 2005, the President signed into law the REAL ID Act of 2005, Pub. L. No. 109-13,

Div. B, § 106(a), (c), 119 Stat. 231 (2005). Section 106 of the REAL ID Act amends section 242(a)

of the Immigration and Nationality Act, 8 U.S.C. § 1252(a), to provide that the district courts lack

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STIPULATION TO TRANSFER CASE

C 05-1881-CW -2-

jurisdiction to review any final removal order, whether through a habeas petition under 28 U.S.C. §

2241 or otherwise, thus overturning the United States Supreme Court’s decision in INS v. St. Cyr, 533

U.S. 289 (2001). Moreover, section amended 8 U.S.C. § 1252(b)(9), which now states as follows:

Judicial review of all questions of law and fact, including interpretation and application

of constitutional and statutory provisions, arising from any action taken or proceeding

brought to remove an alien from the United States under this subchapter shall be

available only in the judicial review of a final order under this section. Except as

otherwise provided in this section, no court shall have jurisdiction, by habeas

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

corpus provision, by section 1361 or 1651 of such title, or by any other provision

of law (statutory or nonstatutory), to review such an order or such questions of

law or fact.").

8 U.S.C. § 1252(b)(9) (emphasis added).

Section 106(c) of the REAL ID Act provides that habeas petitions pending in district court on the

effective date of the Act, May 11, 2005, shall be transferred to the Court of Appeals, where it will be

treated as a petition for review. Specifically, section 106(c) provides:

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 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.

 As the petitioner brought this habeas petition to challenge ICE’s action to execute the petitioner’s

removal order, and the petition was filed prior to May 11, 2005, the parties agree that this Court must

immediately transfer the habeas petition immediately to the United States Court of Appeals for the

Ninth Circuit, where it will be treated as a petition for review.

 The parties further agree that the temporary stay of removal to which the parties have agreed, will

expire upon the transfer of this case to the Ninth Circuit.

DATED: June 10, 2005 Respectfully submitted,

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I, Edward A. Olsen, attest that both Attorney Reynolds and I have signed this stipulation and

will produce the original signed copies upon request.

STIPULATION TO TRANSFER CASE

C 05-1881-CW -3-

KEVIN V. RYAN

United States Attorney

/s/

EDWARD A. OLSEN1

Assistant United States Attorney

Attorneys for Respondents

DATED: June 9, 2005 /s/

SARNATA REYNOLDS

Attorney for Petitioner

ORDER

Pursuant to stipulation, IT IS SO ORDERED.

/s/ CLAUDIA WILKEN

Date: 6/16/05 

CLAUDIA WILKEN

United States District Judge

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