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GOMEZ v. BUREAU OF IMMIGRATION & CUSTOMS

April 23, 2004.

LUIS GOMEZ, Petitioner
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT'S INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL FOR THE PHILADELPHIA DISTRICT, Respondent



The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

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.

 I. Background

  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. (Id.)

  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

 II. Legal Standard

  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.

 III. Discussion

  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 petition.

  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 part:
(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 of appeals.

  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 ...


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