United States District Court, M.D. Pennsylvania
June 21, 2005.
SIRHAN RAMESH SHAH, A78 829 794, Petitioner
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT Respondent.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
MEMORANDUM and ORDER
Presently before the Court for disposition is Respondent Bureau
of Immigration and Customs Enforcement's ("BICE") motion to
transfer (Doc. 18) Petitioner Sirhan Ramesh Shah's ("Shah")
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.
Shah's petition challenges a November 3, 2004 final removal
order directing him to be removed to India. On February 23, 2005,
we granted a stay in the instant case pending resolution of
Shah's habeas petition. Shah challenges the final order of
removability on the grounds that he is entitled to cancellation
of removal because he is an abused spouse within the definition
of 8 U.S.C. § 1229(b)(2). He further argues that he is entitled
to withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)
because the Indian government will put his life in danger upon
his reentry to India. Finally, he argues that his continued
detention is unreasonable pursuant to Zadvydas v. Davis,
533 U.S. 678 (2001). For the following reasons, we will dismiss the
portion of his claim that seeks relief pursuant to Zadvydas,
and we will transfer the remaining portions of the complaint to
the United States Court of Appeals for the Third Circuit Court.
Shah was ordered removed from the United States for having
committed an aggravated felony. This order became final on
November 3, 2004. Shah argues that his potentially indefinite
detention pursuant to the removal order violates his due process
rights. Although Shah does not specifically cite Zadvydas, we
will apply it because we have a duty to construe pro se
pleadings liberally and to apply the applicable law whether or
not the pro se litigant mentions it by name. Holley v. Dep't
of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). In
Zadvydas, the Court found that the due process clause limits
duration of the detention period for an alien ordered removed
while his removal is pending. Zadvydas v. Davis, 533 U.S. 678
(2001). To the extent that Shah argues that his continued
detention is unreasonable, we will deny his claim.
Zadvydas held that a six month removable period following a
final order of removability is presumptively reasonable. Id.
Shah's final order was issued on November 2, 2004. He filed the
instant petition, along with a motion for a stay of removal, on
February 23, 2005, well within the six month period. Since
February 23, 2005, the stay has remained in effect pending the
resolution of this case. Thus, Shah has not been held against his
will beyond a reasonable period of time; rather, he is being held
pursuant to a stay that he requested. "Petitioner cannot secure
release from detention which has been prolonged beyond the
ninety-day removal period or presumptively reasonable six month
period because of a judicial stay entered at his request to block
his removal pending resolution of a habeas petition." Marcelus v. I.N.S, Civ. A. No. 01-2587, 2002 WL
80301, at *1 (E.D. Pa. Jan. 16, 2002) (citing Ma v. Ashcroft,
257 F.3d 1095, 1104 n. 12 (9th Cir. 2001)).
Thus, the presumptively reasonable removal period has not
expired, and Shah's detention is constitutional.
We will transfer the remaining portion of his complaint because
it challenges his final order of removal. The law currently
provides that we do not have jurisdiction to hear section 2241
petitions of aliens challenging a removal that is based upon the
commission of a criminal offense. 8 U.S.C. § 1252(a)(2)(C).
Moreover, "[n]otwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of title 28,
United States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, a petition for review filed
with an appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for judicial review
of an order of removal. . . ." 8 U.S.C § 1252(a)(5).
This law became effective on May 11, 2005, while the instant
petition was pending. The enactment provided that:
[i]f an alien's case, brought under section 2241 of
title 28, United States Code, and challenging a final
administrative order of removal, deportation, or
exclusion, is pending in a district court on the date
of the enactment of this division, then the district
court shall transfer the case (or the part of the
case that challenges the order of removal,
deportation, or exclusion) to the court of appeals
for the circuit in which a petition for review could
have been properly filed under section 242(b)(2) of
the Immigration and Nationality Act (8 U.S.C. 1252).
H.R. 1268, 109th Cong. Pub.L. No. 109-13 (2005) (enacted).
Therefore, according to the express direction of Congress we
must transfer this case to the court of appeals where Shah could have filed a petition for
review under 8 U.S.C. § 1252(b)(1). We will transfer this case to
the Third Circuit because the Immigration Judge completed Shah's
proceedings in York, Pennsylvania. See 8 U.S.C. § 1252(b)(1)
("The petition for review shall be filed with the court of
appeals for the judicial circuit in which the immigration judge
completed the proceedings.").
AND NOW, to wit, this 21st day of June 2005, it is
hereby ORDERED that:
1) Respondent BICE's motion to transfer the portion
of Petitioner Shirhan Shah's (Alien No. A78 829 794)
habeas petition challenging his final order of
removal (Doc. 18) is hereby GRANTED;
2) The portion of the petition for a writ of habeas
corpus (Doc. 1, 9) challenging Shah's final order of
removal, issued in York Pennsylvania, is hereby
TRANSFERRED to the United States Court of Appeals
for the Third Circuit pursuant to the Real ID Act.
3) The stay issued on February 23, 2005 (Doc. 2)
shall remain in place during and after transfer. The
Government may move in the Court of Appeals to vacate
the stay if appropriate.
4) The portion of Petitioner Shah's petition for a
writ of habeas corpus (Doc. 1, 9) challenging his
continued detention as violative of due process
pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001)
is hereby DENIED.
5) The Clerk of Courts is directed to close this case
in this district.
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