UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 26, 2009
BERNARDO ANTONIO ALCANTARA PETITIONER
ATTORNEY GENERAL OF THE UNITED STATES
(D.N.J. Civ. No. 08-cv-04302)
The opinion of the court was delivered by: Dolores K. Sloviter Circuit Judge
December 24, 2008
Present: SLOVITER, FUENTES and JORDAN, Circuit Judges.
(1) By the Clerk for possible dismissal due to a jurisdictional defect;
(2) Respondent's motion to dismiss the petition for review; and
(3) Petitioner's response in opposition thereto in the above-captioned case.
The foregoing motion to dismiss is denied but, for the following reasons, we will remand this matter to the District Court. Bernardo Alcantara filed in the District Court a document captioned as a "petition for a declaratory writ of U.S. citizenship under 8 U.S.C. [§] 1452(a) as husband of a citizen wife." We read that petition to request that the District Court: (1) declare Alcantara a United States citizen by reason of his marriage to a United States citizen; and (2) stay his removal proceeding pending a determination of his citizenship status. The District Court, though noting some uncertainty regarding Alcantara's situation and reasons for filing the petition, concluded that it could "not rule out the possibility" that Alcantara sought to challenge his removal and that any such challenge could be brought only in this Court. It thus transferred Alcantara's petition to this Court pursuant to 8 U.S.C. § 1252(a)(5) and 28 U.S.C. § 1631 to be treated as a petition for review.
After our Clerk directed the parties to address this Court's authority to hear the petition, the Government filed a motion to dismiss, arguing that this Court lacks jurisdiction over the petition because no order of removal, let alone a final one, has yet been entered against Alcantara. The Government is correct, and we do indeed lack jurisdiction for that reason insofar as Alcantara's petition may be construed as a petition for review. See Obale v. Att'y Gen., 453 F.3d 151, 157-58 (3d Cir. 2006) (explaining that grant of jurisdiction under 8 U.S.C. § 1252(a)(1) extends only to "final orders of removal"). The proper course, however, is not for us to dismiss the petition. Instead, we must remand it to the District Court. Because no final order of removal has been entered against Alcantara, there was no statutory basis for the District Court to transfer his petition to us to be treated as a petition for review. See Nnadika v. Att'y Gen., 484 F.3d 626, 632 (3d Cir. 2007) ("When the case does not challenge the administrative removal order, it does not fall within the transfer provision of the REAL ID Act and the District Court retains jurisdiction."); 28 U.S.C. § 1631 (authorizing transfer of an action or appeal only to another "court in which the action or appeal could have been brought at the time it was filed"). We understand and appreciate that Alcantara's petition is less than clear and that the District Court transferred it to this Court in an abundance of caution. Because the statutory framework did not permit the transfer under these circumstances, however, we must remand. See Nnadika, 484 F.3d at 632.
On remand, the District Court, after allowing the parties an opportunity to respond, should consider its authority to grant the relief that Alcantara requests. We note our skepticism that the District Court in fact has the authority to declare Alcantara a citizen or stay his removal proceeding, but we leave that determination to the District Court in the first instance. See id. at 633.*fn1 Accordingly, this matter is hereby remanded. Alcantara's response to the Government's motion to dismiss, insofar as it requests that we stay his removal proceeding, is denied.*fn2