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United States District Court, E.D. Pennsylvania

April 19, 2004.


The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge


Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2241, by a prisoner in custody of the Immigration and Customs Enforcement agency ("ICE"). For the reasons which follow, the Court recommends that the petition be denied without prejudice.


  Petitioner, Jeronimo Galvis-Vasquez, a native and citizen of Colombia, entered the United States as a lawful permanent resident on May 12, 1992, at the age of nine.*fn1 Sometime in 2001, he submitted his application to become a United States citizen, but, on January 30, 2002, was arrested on drug charges. On June 11, 2002, following a guilty plea, he was convicted in the Bucks County Court of Common Pleas of Possession With Intent to Deliver a Controlled Substance (Marijuana). The trial court sentenced him to a term of two years probation.

  Due to his conviction, petitioner was immediately placed in removal proceedings by the Immigration and Naturalization Service ("INS") and charged with being removable under both section 237(a)(2)(A) (iii)*fn2 and section 237(a)(2)(B)(i)*fn3 of the Immigration and Nationality Act. In January 2004, a hearing was held before an Immigration Judge, who upheld both grounds for petitioner's removal. Upon being taken into the custody of immigration authorities, petitioner sought interlocutory review of the decision regarding removal on the grounds of "aggravated felony." Following an interlocutory hearing, a different Immigration Judge in York, Pennsylvania found that the Bureau failed to prove that petitioner's conviction constituted an aggravated felony as defined in the Act. In addition, the judge determined that Third Circuit precedent required a finding that his conviction did not constitute a drug trafficking crime.

  In light of the Interlocutory Ruling, a final removal hearing was scheduled for April 15, 2004. To date, no decision has been issued.

  On March 10, 2004, petitioner filed the current Petition for Writ of Habeas Corpus, claiming:

1. He is entitled to derivative citizenship under his parents' status as United States citizens;
2. The removal order constitutes a violation of his procedural and substantive due process rights; and
3. His indefinite detention violates his substantive due process rights.
Six days later, petitioner filed an Application for Certificate of Citizenship, claiming derivative citizenship due to the naturalization of his parents. On March 22, 2004, the application was denied because petitioner had attained the age of 18 approximately five to six months prior to his parents' naturalization. While he has until April 22, 2004 to appeal this decision, he has yet to do so.


  Pursuant to 8 U.S.C. § 1252(d)(1), "[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right. . . ." 8 U.S.C. § 1252(d)(1). Section 1252(d)(1) applies to both direct appeal review by the court of appeals and "habeas" review in the district court. Duvall v. Elwood, 336 F.3d 228, 231, n. 5 (3d Cir. 2003). Administrative exhaustion is jurisdictional and is, therefore, a prerequisite to federal habeas review in immigration matters. Id. at 232. Likewise, a final order of removal is also a requisite for jurisdiction. Id.

  In the case at bar, respondent correctly notes that petitioner has failed to exhaust his administrative remedies. No final order of removal has been entered. Indeed, his removal hearing was just recently held on April 15, 2004. See Response at Exhibit D. Upon issuance of a decision, either petitioner or ICE will have thirty days in which to appeal. Only after either the expiration of the appeal time or the conclusion of any filed appeals will the removal order become administratively final.*fn4

  The same holds true with respect to his Application for Certificate of Citizenship. Petitioner's application was denied on March 22, 2004. By way of the Notice of Decision, petitioner was instructed that he may appeal within thirty days, after which time the decision becomes final. See Response at Exhibit C.

  As petitioner is not under a final order of removal and has yet to exhaust his administrative remedies with regards to either his removal or his Application for Citizenship, this Court has no jurisdiction to consider his claims. That being said, however, petitioner is not barred from relief. Should he receive an unfavorable result upon properly pursuing all his administrative remedies with respect to his removal and his citizenship application, he may return to this Court by way of another habeas petition. At that time, we may consider his claims on their merits and determine whether he is entitled to the writ of habeas corpus. As the matter presently stands, however, we have no choice but to dismiss the petition for lack of jurisdiction.

  Therefore, I make the following:

  AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DISMISSED WITHOUT PREJUDICE to petitioner's refiling after proper exhaustion of all his administrative remedies.

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