* Appellee declined to file a brief in this matter. After examining appellant’s

brief and the appellate record, this panel has determined unanimously that oral

argument would not materially assist the determination of this appeal. 

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

February 18, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSE MANUEL LEMA,

Petitioner-Appellant,

v.

UNITED STATES DEPARTMENT

OF HOMELAND SECURITY; ERIC

H. HOLDER, JR., as Attorney

General,

Respondents-Appellees.

No. 09-2189

(D.C. No. 1-08-CV-00915-MCA-ACT)

(D. N.M.)

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and ANDERSON, Circuit Judges.

Jose Manuel Lema appeals from the district court’s order dismissing his

petition for a writ of habeas corpus under 28 U.S.C. § 2241 for lack of

jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

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I.

Mr. Lema is a native and citizen of Ecuador who, in 1988, entered the

United States without any documentation. Upon entry, immigration authorities

issued an order to show cause why he should not be deported. The record

contains a signed stipulation between “Jose Salvador Tellez,” counsel for

Mr. Lema, and a government attorney, that Mr. Lema could be deported without a

hearing. Aplt. App. at 2. An immigration judge in Laredo, Texas, signed a

deportation order, which was effected several weeks later. 

However, Mr. Lema did not stay gone for long; instead he reentered the

United States in 1991, where he did not come to the attention of immigration

officials until 2008. Following his apprehension in New York, the Department of

Homeland Security issued a notice of its intention to reinstate the 1988 order and

deport him. Shortly thereafter, Mr. Lema filed a petition for a writ of habeas

corpus in federal district court in New York, which in turn transferred the action

to the federal district court in New Mexico, where Mr. Lema was in custody. The

district court concluded that it lacked jurisdiction to entertain the petition and

declined to transfer the case to the Fifth Circuit Court of Appeals because it also

lacked jurisdiction. This appeal followed.

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II.

The gist of Mr. Lema’s argument concerns the 1988 proceeding, which he

characterizes as a “gross miscarriage of justice,” Aplt. Opening Br. at 11, because

he “was never brought before an Immigration Judge[,] . . . [he] never retained an

attorney, and never signed a G-28 authorizing an attorney to appear on his

behalf,” id. at 5. But even accepting his characterization of the proceeding as

accurate, he never explains how the district court’s conclusion that it lacked

jurisdiction was error; instead he cites outdated case law and/or ignores relevant

precedent.

Under 8 U.S.C. § 1252(a)(5), the “appropriate court of appeals . . . [has] the

sole and exclusive means for judicial review of an order of removal,” including

“habeas corpus review pursuant to [§] 2241.” See also Schmitt v. Maurer,

451 F.3d 1092, 1094 (10th Cir. 2006) (following enactment of the REAL ID Act

on May 11, 2005, “district courts no longer have jurisdiction over habeas

petitions challenging orders of removal”). 

The “appropriate” court of appeals is “the court of appeals for the judicial

circuit in which the immigration judge completed the proceedings.” 8 U.S.C.

§ 1252(b)(2). In Mr. Lema’s case, the immigration judge completed the

proceedings in Texas, and his petition should have been filed with the Fifth

Circuit Court of Appeals. We acknowledge that in certain circumstances a

transfer to a circuit court is appropriate. But one requirement for transfer is that

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the transferee court itself have jurisdiction on the date the action was filed. 

28 U.S.C. § 1631. Section 1252(b)(1) required Mr. Lema to file his petition in

the court of appeals within “30 days after the date of the final order of removal.” 

The thirty-day filing deadline is “mandatory and jurisdictional and is not subject

to equitable tolling.” Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.

2003) (per curiam) (quotations omitted). Because his petition was filed more

than twenty years after the 1988 order of deportation, no court of appeals had

jurisdiction to entertain it, and transfer would have been improper. 

Cf. Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162-63 (10th Cir. 2004).

The order of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge

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