Lopez v. Atty Gen USA , 196 F. App'x 56 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-11-2006
Lopez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2807
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-2807
___________
OLIVERIO LOPEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A74-398-788)
___________
Submitted Under Third Circuit LAR 34.1(a)
June 8, 2006
Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges.
(Filed: September 11, 2006)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Oliverio Lopez is a native of the Republic of Guatemala. He entered the
United States illegally in 1996, subsequently applying for asylum. Although his claim for
asylum was denied on June 20, 1997 by an immigration judge in Los Angeles, California,
he was granted voluntary departure. He was scheduled to be deported from Los Angeles
on April 25, 2000, but failed to appear.
Lopez apparently moved to Lehigh, Pennsylvania in April of 2002 where he
married his present wife, Sandra Adames Lopez, an American citizen. Lopez applied for
an adjustment of status to lawful permanent resident, but was denied. He was
apprehended by immigration authorities in April of 2005 and is currently being detained
in the Berks County, Pennsylvania prison. Pursuant to a stay order entered by the United
States District Court for the Eastern District of Pennsylvania, Lopez is currently not under
any threat of removal.
On May 11, 2005, Lopez filed an Emergency Motion for Stay of Removal
and a Petition for Writ of Habeas Corpus in the United States District Court for the
Eastern District of Pennsylvania. On the same day his motion and habeas petition were
filed, the President signed into law a measure known as the REAL ID Act of 2005. The
REAL ID Act dramatically altered federal court review of removal orders by providing
that “a petition for review filed with an appropriate court of appeals . . . shall be the sole
and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5).
This statute effectively deprived the United States District Courts of authority to entertain
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habeas corpus petitions that challenge orders of removal. See Bonhometre v. Gonzales,
414 F.3d 442, 445-46 (3d Cir. 2005); Jordon v. Attorney General, 424 F.3d 320, 326 (3d
Cir. 2005). Pursuant to the dictates of the REAL ID Act, the District Court transferred his
case to this court.
I.
Under the REAL ID Act, a petition for review is now the sole and exclusive
means of judicial review for all orders of removal except those issued pursuant to 8
U.S.C. § 1225(b)(1). Our jurisdiction was also expanded, giving this court authority to
consider constitutional claims or questions of law raised in an alien’s petition for review.
8 U.S.C. § 1252(a)(2)(D) (2005); see also Papageorgiou v. Gonzales, 413 F.3d 356, 358
(3d Cir. 2005). All habeas petitions brought by aliens that were pending in the District
Court on the date the REAL ID act became effective are to be converted to petitions for
review and transferred to the appropriate court of appeals. Bonhometre v. Gonzales, 414
F.3d at 446.
The REAL ID Act further provides that a petition for review shall be filed
“with the court of appeals for the judicial circuit in which the immigration judge
completed the proceedings.” 8 U.S.C. § 1252(b)(2). Here, neither party disputes that the
immigration judge who completed the proceedings against the Petitioner was located in
Los Angeles, California. This court, therefore, is not the proper venue for those claims in
which Lopez challenges his petition for removal. See id. The petition for review will be
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transferred to the United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. §
1631.
Lopez also makes claims in his petition challenging his current detention by
immigration authorities in the Berks County, Pennsylvania prison. To the extent Lopez
remains in the custody of immigration officials and continues to seek release from
detention, such a claim should be presented to the District Court in the district in which
he is detained. See Bonhometre, 414 F.3d at 446 n.4. (recognizing that the REAL ID Act
made petitions for review the exclusive means for judicial review of orders of removal,
but did not eliminate district court habeas jurisdiction over challenges to detention); 28
U.S.C. § 2241. Neither party objects to the District Court retaining jurisdiction over
Lopez’s claims relating to his detention. Therefore, we will transfer those claims back to
the United States District Court for the Eastern District of Pennsylvania.
II.
Lopezes remaining claims challenge the denial of his request for an
adjustment of status. The Government argues in supplemental briefing that we lack
jurisdiction over Lopez’ claims regarding his denial of adjustment in status. Lopez filed
an application for adjustment of status in June of 2003. His wife filed a petition for alien
relative at the same time. An interview to determine the validity of the marriage was
scheduled for February 3, 2005 in Philadelphia. The Lopezes arrived an hour late for
their scheduled interview. Although the Citizenship and Immigration Services (CIS)
personnel allegedly indicated that the hearing would be re-scheduled, it was not. Instead,
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on February 3, 2005, the CIS sent a letter to Petitioner’s spouse which indicated that she
had failed to meet her burden of proof that she and Petitioner had a bona fide marriage.
Although the Petitioner’s wife had thirty days to appeal this determination, she did not
file any such appeal.
Concurrent to the proceedings concerning his wife’s petition for alien
relative, the CIS sent Lopez a letter indicating that it was administratively closing his
Application to Adjust Status. Under 8 C.F.R. § 245.2(a)(1) (1965) (amended 2002),
“[a]fter an alien . . . is in deportation or removal proceedings, his or her application for
adjustment of status . . . shall be made and considered only in those proceedings.” See
Borges v. Gonzalez, 402 F.3d 398, 401 n.2 (3d Cir. 2005); Drax v. Reno, 338 F.3d 98,
118 n.26 (2d Cir. 2003). Petition was placed in removal proceedings on November 12,
1996. The record reflects that the immigration judge’s order was entered on June 20,
1997 and became final when Lopez failed to file an appeal within the thirty-days
prescribed by regulation. See 8 C.F.R. §§ 1003.3(a), 1003.38, 1003.39, 1240.52, 1240.53
and 1241.31. Inasmuch as Lopez failed to bring his request for an adjustment in status
within his original removal proceedings, he is barred from bringing such a challenge now.
Finally, Lopez raises due process arguments in connection with his request
for an adjustment of status. As we are transferring this Petition for Review to the Court
of Appeals for the Ninth Circuit, we express no judgment on these claims, leaving them
for the Ninth Circuit to review.
III.
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For the foregoing reasons, the Petition for Review is hereby transferred to
the United States Court of Appeals for the Ninth Circuit to the extent it challenges the
final order of removal. Those issues that challenge Lopez’ current detention, however,
are remanded to the United States District Court for the Eastern District of Pennsylvania
for further determination.
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