The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court is Petitioner Luis Gomez's petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, who is
currently detained in Pike County, Pennsylvania, challenges the
lawfulness of his final order of removal from the United States and
asserts that his removal is not appropriate because he is a national
under 8 U.S.C. § 1101(a)(22). Because the court concludes that Petitioner
is not a national, the court will deny his habeas petition.
Petitioner is a native and citizen of the Dominican Republic and was
admitted to the United States on October 31, 1962. (Ex. A in Supp. of Am.
Pet. for Writ of Habeas Corpus.) On September 9, 1975 Petitioner enlisted
in the United States Marine Corps and signed an Oath of Enlistment. (Ex.
B in Supp. of Am. Pet. for Writ of Habeas Corpus.) The Oath states: I,_____, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United
States against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the
same; and that I will obey the orders of the
President of the United States and the orders of
the officers appointed over me, according to
regulations and the Uniform Code of Military
Justice. So help me God.
(Am. Pet. for Writ of Habeas Corpus at 2.) Petitioner served the
military on active duty for three years. During this time, he was
promoted to the rank of Lance Corporal. (Am. Pet. for Writ of Habeas
Corpus at 3.) On November 11, 1977, Petitioner witnessed a helicopter
crash that triggered a nervous breakdown and was later diagnosed with
schizophrenia. (Id.) Petitioner was transported to the Veterans
Administration ("VA") Hospital for treatment and was placed on the
temporary disability retired list. (Id.) He was released from
the VA Hospital in March 1978. (Id.)
On July 10, 1979, Petitioner was convicted of manslaughter and received
a 10-year sentence. (Id.) While incarcerated, Petitioner was
discharged from the Marine Corps by reason of physical disability with
severance pay effective April 15, 1986. (Id.) Petitioner also
took college-level courses during his incarceration and married Belkis
Gomez, with whom he has two sons, Jose and David. (Id. at 4.)
Petitioner was released from prison in February 1988.
In 1998, Petitioner was convicted and sentenced for the attempted
criminal sale of heroin in the third degree. (Gov't's Resp. to Am. Pet.
for Writ of Habeas Corpus at 2.) While serving this sentence, the former
Immigration and Naturalization Service, now the Bureau of Immigration and
Customs Enforcement ("ICE"), commenced removal proceedings on February 9,
2000. (Id. at 2-3.) An Immigration Judge ordered Petitioner
removed to the Dominican Republic on April 25, 2001 pursuant to
8 U.S.C. § 237(a)(2)(A)(iii) and (a)(2)(B)(i) as an alien who has been convicted of an aggravated felony*fn1 and of violating a
controlled substance law respectively. (Id. at 3.) Petitioner
appealed the decision to the Board of Immigration Appeals ("the Board"),
but the Board affirmed the Immigration Judge in an August 6, 2001 order.
On December 4, 2003, Petitioner was released from prison. (Am. Pet. for
Writ of Habeas Corpus at 4.) Upon release, he was detained by ICE, and he
remains in its custody. (Id.) Petitioner filed a petition for
writ of habeas corpus on February 10, 2004. The parties have briefed the
issues, and the matter is ripe for disposition.*fn2
Under 28 U.S.C. § 2241(c)(3), a writ of habeas corpus may extend to
any person "in custody in violation of the Constitution or laws or
treaties of the United States." See also Zadvydas v. Davis,
533 U.S. 678, 687 (2001). Recently, the Supreme Court established that
despite comprehensive amendments to judicial review of immigration
decisions through the Antiterrorism and Effective Death Penalty Act of
1996 and the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, federal district courts have jurisdiction to decide habeas
corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to
deportation. INS v. St. Cyr, 533 U.S. 289, 314 (2001); see
also Chong v. Dist. Dir., INS, 264 F.3d 378, 382 (3d Cir. 2001).
However, a district court's review of administrative immigration decisions under § 2241 is limited. First, a district court
reviews only the opinion of the Board and does not review both the
Board's and the Immigration Judge's opinions. Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Second, the standard of
review is restricted to purely legal questions. Bakhtriger v.
Elwood, 360 F.3d 414, 424 (3d Cir. 2004); Sol v. INS,
274 F.3d 648, 651 (2d Cir. 2001); Bowrin v. INS, 194 F.3d 483, 490
(4th Cir. 1999). Specifically, a district court may review statutory and
constitutional claims as well as claims asserting the erroneous
application of legal principles to undisputed facts. Bakhtriger,
360 F.3d at 424-25; Ogbudimpka v. Ashcroft, 342 F.3d 207, 222
(3d Cir. 2003). However, federal jurisdiction over § 2241 petitions
does not extend to review of discretionary determinations made by the
Board. Bakhtriger, 360 F.3d at 420; Sol, 274 F.3d at 651.
Petitioner contends that his habeas petition should be granted because
only aliens may be removed from the United States. Because Petitioner
qualifies as a national, his argument goes, he is excluded from the
statutory definition of "alien." In response, the Government contends
that the court lacks jurisdiction to hear Petitioner's claims and that,
in the alternative, Petitioner is not a national as that term is defined
in the United States Code and Third Circuit precedent. Because the court
finds the Government's second argument persuasive, the court will deny
Petitioner's habeas petition. A. The court has jurisdiction over Petitioner's habeas
The Government argues that the district court does not have
jurisdiction to decide Petitioner's habeas petition because under
8 U.S.C. § 1252(b)(5), the court of appeals has sole jurisdiction to
determine nationality claims. Section 1252(b)(5) provides in relevant
(A) Court determination if no issue of fact. If
the petitioner claims to be a national of the
United States and the court of appeals finds from
the pleadings and affidavits that no genuine issue
of material fact about the petitioner's
nationality is presented, the court shall decide
the nationality claim.
(B) Transfer if issue of fact. If the petitioner
claims to be a national of the United States and
the court of appeals finds that a genuine issue
of material fact about the petitioner's
nationality is presented, the court shall
transfer the proceeding to the district court of
the United States for the judicial district in
which the petitioner resides for a new hearing
on the nationality claim. . . .
The Government interprets this statute as requiring district courts
to transfer habeas petitions regarding nationality to the relevant court
The court rejects the Government's argument. It is well-established
that district courts retain jurisdiction over habeas corpus petitions
under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 239,
314 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir. 1999).
In INS v. St. Cyr, 533 U.S. 239 (2001), the Supreme court
analyzed 8 U.S.C. § 1252(b)(9). Although the Court found the
statute's purpose was to consolidate judicial review into one action at
the appellate court level, the Court determined that the statute applied
only to review of an order of removal and not to habeas petitions.
Id. at 313. The Court also concluded that in the absence of a
"clear, unambiguous, and express statement of congressional intent to
preclude judicial consideration of habeas petitions," preventing district
courts from retaining ...