UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Neang Leng

v. Civil No. 05-cv-331-PB

United States Department

of Homeland Security

REPORT AND RECOMMENDATION

Petitioner Neang Leng, an alien who is currently detained

pending deportation, has filed a petition pursuant to 28 U.S.C. §

2255 in which he seeks to challenge an order of removal (document

no. 1). For the following reasons, I recommend that the petition

be dismissed for lack of jurisdiction.

Standard of Review

In reviewing a pro se petition, this court must construe the

pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “The

policy behind affording pro se litigants liberal interpretation

is that if they present sufficient facts, the court may intuit

the correct cause of action, even if it was imperfectly pled.” 

See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert.

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denied, Ahmed v. Greenwood, 522 U.S. 1148 (1998). 

At this preliminary stage of review, all factual assertions

made by the petitioner and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996)(stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Director of CIA, 843

F.2d 46, 49 (1st Cir. 1988). I apply this standard in reviewing

Leng’s petition.

Background

Convicted in Colorado of first degree assault, Leng was

sentenced to a term of imprisonment and is currently incarcerated

at the New Hampshire State Prison. In the instant petition, he

appears to challenge a decision issued by the Board of

Immigration Appeals (“BIA”) denying his July 6, 2005 appeal of a

removal order. Although Leng has provided little factual or

procedural history, he has attached to the petition a notice of

briefing schedule addressed to him from the BIA. The notice

states that the BIA forwarded to him a copy of a decision by an

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immigration judge and a transcript of the testimony of record. 

The notice further states that the BIA granted Leng until

September 28, 2005 to submit a brief in support of his appeal and

advised him that failure to file within the allotted time period

may result in a summary dismissal of his appeal. The record is

silent at to whether Leng filed a brief or sought further

administrative review. He now brings the instant petition, filed

on September 22, 2005, challenging the order of removal.

Discussion

On May 11, 2005, Congress enacted the REAL ID Act of 2005,

Pub.L. No. 109-13, 119 Stat. 231 (2005)(“Real ID Act”), which

became effective that same day. The Real ID Act amended section

242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1252 (2000), to place review of all final removal orders for both

criminal and non-criminal aliens in the courts of appeals. See

Ishak v. Gonzales, 422 F.3d 22, 28 (1st Cir. 2005).

Section 106(a)(1)(B) amends INA § 242(a) and adds 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

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1The "appropriate court of appeals" is "the court of appeals

for the judicial circuit in which the immigration judge completed

the proceedings." INA, 242(b)(2), 8 U.S.C. § 1252(b)(2). If

Leng’s immigration proceedings were completed in New Hampshire or

Massachusetts, he should re-file the petition in the First

Circuit Court of Appeals. 

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with an appropriate court of appeals1 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. . . .

REAL ID Act § 106(a)(1)(B)(5), Pub.L. No. 109-13, 119 Stat. at

310-11. The REAL ID Act therefore divests district courts of

jurisdiction over petitions for habeas corpus relief challenging

a final order of removal. See Hernandez v. Gonzales, No. 05-

2128, 2005 WL 2254128 (1st Cir. Sept. 16, 2005). 

Section 106(c) provides that if a habeas petition

challenging a final administrative order of removal “is pending

in a district court on the date of enactment” of the Real ID Act,

“then the district court shall transfer the case . . . to the

court of appeals for the circuit in which a petition for review

could have been properly filed under [INA § 242(b)(2)].” Ishak,

422 F.3d at 29 (citing REAL ID Act of 2005, Pub.L. No. 109-13, §

106(c), 119 Stat. 231 (2005)). “But there is no similar

provision for the transfer of cases erroneously filed in district

courts after the effective date.” Flores-Diaz v. United States,

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No. 2:05-CV-710-TS, 2005 WL 2456983 at *1 (D. Utah Oct 5,

2005)(where petition was not pending on May 11, 2005, district

court lacked authority to transfer case to court of appeals and

dismissed petition without prejudice to re-filing); accord

Griffith v. Department of Homeland Security, No. 05-CV-0644S,

2005 WL 2338866, at *1 (W.D.N.Y. Sept. 21, 2005); Aime v.

Department of Homeland Security, No. 05-CV-0544F, 2005 WL

1971894, at *1 (W.D.N.Y. Aug. 16, 2005); McDonald v. Mule, No.

05-CV-6367CJS (FE), 2005 WL 1971896 (W.D.N.Y. Aug. 9, 2005);

Munoz v. Gonzales, No. 05 Civ. 6056 (SHS), 2005 WL 1644165

(S.D.N.Y. July 11, 2005). 

In the instant petition filed with this Court on September

22, 2005, Leng does not appear to challenge his continued

detention but only seeks review of a final order of removal. To

the extent he challenges an order of removal within in the

meaning of the Section 106(b) of the REAL ID Act, this Court has

no jurisdiction to review the merits of the petition or to stay

the order of removal. The sole and exclusive means to review an

order of removal, such as the one challenged here, is through a

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2INA, § 242(b)(1), as amended, 8 U.S.C. § 1252(b)(1),

provides that "[t]he petition for review must be filed not later

than 30 days after the date of the final order of removal."

3An order of removal becomes final upon waiver of appeal or

upon expiration of the time to appeal if no appeal is taken

whichever occurs first, unless the matter is certified to the

BIA. INA § 241(a)(5), 8 U.S.C.A. § 1251(a)(5); 8 C.F.R. §

1003.39. See also Popal v. Gonzales, 416 F.3d 249, 252 n.1 (3d

Cir. 2005)(an immigration judge’s order may become final either

upon affirmance by the BIA or upon expiration of the period for

review - although ordinarily an order that becomes final via the

latter method will be unreviewable for failure to exhaust). The

BIA granted Leng until September 28, 2005 to file a brief in

support of his appeal and notified him that his failure to do so

may result in summary dismissal of his appeal. See 8 C.F.R. §

1003.1(d)(2)(i)(E) (permitting the BIA to summarily dismiss any

appeal where the petitioner fails to file a brief in support of

his appeal or fails to reasonably explain his failure to file

within the prescribed time period for filing an appeal. It

appears therefore that Leng has waived his right to appeal or the

appeal period has expired.

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petition for review with the appropriate court of appeals.2 REAL

ID Act, § 106(a)(1)(B). Given that Leng’s order of removal

appears to be final3, he must re-file the petition (and any

requests for a stay of removal) with the First Circuit Court of

Appeals or the court of appeals for the judicial circuit in which

the immigration judge completed the proceedings.

Because the petition was not pending on May 11, 2005, this

Court does not have the authority to transfer this case to the

court of appeals. Accordingly, I conclude that this Court lacks

jurisdiction to review Leng’s petition and recommend that the

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petition be dismissed without prejudice to re-filing.

Conclusion

For the reasons stated above, I recommend that the petition

be dismissed without prejudice to re-filing in the First Circuit

Court of Appeals or the court of appeals for the judicial circuit

in which the immigration judge completed the proceedings.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the petition. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See 28 U.S.C. §

636(b)(1); Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 17, 2005

cc: Neang Leng, pro se

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