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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KAZANCHEIEV VOLODYMYR,

Petitioner,

vs. Case No. 4:10cv195-WS/WCS

ERIC HOLDER, JR., et al.,

Respondents.

 /

AMENDED REPORT AND RECOMMENDATION

On May 20, 2010, the pro se Petitioner filed a habeas petition under 28 U.S.C. §

2241, doc. 1, and a motion seeking leave to proceed in forma pauperis, doc. 2. The

motion was granted, doc. 8, and I reviewed the petition for writ of habeas corpus. 

The petition seeks a stay of deportation and release from detention. Doc. 1. 

Petitioner also seeks to have his immigration proceedings reopened to hear his request

for asylum. See doc. 3. 

I concluded that Petitioner should have filed the petition for review in the

Eleventh Circuit Court of Appeals and entered a report and recommendation on July 7,

2010. Petitioner has now filed a motion to consider supplemental filings. Doc. 11. 

Within that motion, although it is not entirely clear what Petitioner is requesting, he
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indicates his desire to continue to seek asylum. Id. Petitioner has attached documents

to that motion which also suggest that Petitioner requests that this Court "remand" the

case back to the Immigration Judge who denied his request for asylum and grant

Petitioner's motion to reopen his case for asylum, withhold removal, and seek relief

under the Convention Against Torture ("CAT"). Id. 

This Court does not have jurisdiction to consider Petitioner's appeal. The relevant

statute, 8 U.S.C. § 1252(a)(2)(c), provides exclusive review (to the degree any review is

possible) only in the Court of Appeals. See Balogun v. United States Atty. Gen., 425

F.3d 1356, 1359-60 (11th Cir. 2005); see also Arias v. United States Atty. Gen., 482

F.3d 1281, 1284 (11th Cir. 2007); Jean-Pierre v. United States Atty. Gen., 500 F.3d

1315, 1321 (11th Cir. 2007) (stating "the exclusive mechanism for judicial review is a

petition for review filed with the appropriate court of appeals"), citing 8 U.S.C. §

1252(a)(5). Under the REAL ID Act, an alien who claims legal error in a final order of

removal may petition the courts of appeals for review. Balogun, 425 F.3d at 1360. The

courts of appeal have exclusive jurisdiction to undertake judicial review. 8 U.S.C. §

1252(a)(5); see Tang v. U.S. Atty. Gen., 578 F.3d 1270 (11th Cir. 2009) (reviewing the

dismissal of petitioner's application for asylum, withholding of removal, and relief under

CAT).

The REAL ID Act also includes a transfer provision providing that "the district

court shall transfer . . . to the court of appeals" any case "challenging a final

administrative order of removal . . . ." REAL ID Act of 2005, Pub.L. No. 109-13, §

106(c), 119 Stat. 231 (2005). Therefore, pursuant to the REAL ID Act, codified at 8

U.S.C. § 1252(a)(2)(D), this case need not be dismissed but may, instead, be

Case No. 4:10cv195-WS/WCS
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transferred to the Eleventh Circuit Court of Appeal. The motion to consider

supplemental filings must be presented to the Court of Appeal.

In light of the foregoing, it is respectfully RECOMMENDED that the § 2241

petition, doc. 1, filed by Petitioner Kazancheiev Volodymyr be TRANSFERRED to the

Eleventh Circuit Court of Appeals pursuant to REAL ID Act of 2005, 8 U.S.C. § 1252, for

consideration of the petition and all pending motions. 

IN CHAMBERS at Tallahassee, Florida, on August 5, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv195-WS/WCS