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Jose Pedro Verde-Rodriguez v. Robert G. Faber

March 6, 2012


The opinion of the court was delivered by: Conti, District Judge.


In this case, Petitioner Jose Pedro Verde-Rodriguez ("petitioner") on November 18, 2011, filed a petition for writ of habeas corpus (ECF No. 1) against various government respondents (collectively referred to as "respondents") and on March 2, 2012 filed an amended petition (ECF No. 8). For the reasons stated below, the court concludes that it does not have subject-matter jurisdiction to hear the matters raised by petitioner and hereby transfers this petition to the Court of Appeals for the Third Circuit for further proceedings.


According to the amended petition for writ of habeas corpus, petitioner is a native of Mexico and became a lawful permanent resident of the United States in 1991. (Am. Pet. Writ Habeas Corpus ("Am. Writ") (ECF No. 8) ¶¶ 9, 11.) Between 1991 and 1998, petitioner was repeatedly convicted of alcohol-related driving offenses. (Id. ¶ 12.) Petitioner was eventually convicted in California of driving while intoxicated after four prior DUI convictions, and was sentenced to two years and four months imprisonment in state prison. (Id.) Following this conviction, the Immigration and Naturalization Service ("INS") placed a hold on petitioner, and on October 2, 1998, the INS served petitioner with a Notice to Appear ("NTA") charging him with removability based on his alleged status as an "aggravated felon." (Id. ¶¶ 13, 14.)

At a removal proceeding held in Eloy, Arizona on October 28, 1998, petitioner appeared before an immigration judge ("IJ") along with seven other Mexican nationals. (Id. ¶ 15.) Petitioner, who was not represented by counsel, participated in a perfunctory colloquy regarding his rights. (Id. ¶¶ 19-21.) The IJ ordered petitioner to be removed to Mexico on the premise that petitioner's DUI offenses qualified as "aggravated felonies." (Id. ¶¶ 22, 24.) Following the hearing, petitioner waived his right to appeal the IJ's removal order, choosing instead that he "just want[ed] to go home," by a process which petitioner challenges as materially interfering with his ability to appeal or move to reopen the proceeding, rendering his waiver involuntary. (Id. ¶¶ 24, 26.) Among other allegations, petitioner asserts that the IJ erroneously informed him that his DUI convictions qualified as aggravated felonies. (Id. ¶ 21.)

At some point after his 1998 removal, petitioner returned to the United States. He was arrested in Ohio on or about August 14, 2000, and was served with a "Notice of Intent/Decision to Reinstate Prior Order," by which he was informed that the government intended to reinstate the 1998 order of deportation against him. (Id. ¶ 27.) He was removed to Mexico for a second time on October 30, 2000. (Id. ¶ 28.)

Three years later, in Leocal v. Ashcroft, 543 U.S. 1, 4 (2004), the United States Supreme Court held that a DUI conviction is not an aggravated felony under the Immigration and Nationalization Act and cannot support an order for deportation. The Leocal decision made clear that the IJ's statement to petitioner in the 1998 proceedings that his DUI convictions were aggravated felonies had been erroneous.

On October 24, 2011, petitioner was again apprehended in the United States-this time he was found in Pittsburgh, Pennsylvania. (Id. ¶ 30.) He was served with another "Notice of Intent/Decision to Reinstate Prior Order." (Id.) Three weeks later, on November 15, 2011, the United States charged petitioner in a single-count indictment at Criminal Number 11-279 with illegal re-entry, in violation of 8 U.S.C. § 1326. On November 18, 2011, within thirty days of his apprehension, within thirty days of his being served with the removal order, and three days after his arrest and indictment for illegal re-entry, his petition for writ of habeas corpus was filed, commencing this civil case. After petitioner filed a motion to dismiss the indictment, petitioner and the government entered into a plea agreement, whereby the government agreed to dismiss the indictment at Criminal Number 11-279 in exchange for petitioner waiving his right to indictment and pleading guilty to a single-count information at Criminal Number 12-020 charging him with use of a false social security number, in violation of 42 U.S.C. § 408(a)(7)(B). (Id. ¶¶ 31, 32.)

On February 13, 2012, petitioner pled guilty at Criminal Number 12-020 to false use of social security number. (Id. ¶ 32.) On March 5, 2012, he was sentenced to time-served and a one-year term of supervised release. At the time of his sentencing, the court granted a motion by the government to dismiss the indictment filed at Criminal Number 11-279.

Also on March 5, 2012, the court heard argument in this civil case. Specifically, the court addressed respondents' contention in their response (ECF No. 9) that the court lacked subject-matter jurisdiction over petitioner's habeas corpus petition.


Respondents, among other things, argue that petitioner was barred from bringing this habeas corpus action in the district court by the provisions of the REAL ID Act of 2005 ("RIDA"), Pub. L. 109-13, 119 Stat. 231, which "eliminated the availability of habeas corpus relief in the district courts for aliens seeking to challenge orders of removal." Kolkevich v. Attorney Gen., 501 F. 3d 323, 326 (3d Cir. 2007). "Instead, Congress substituted petitions for review, filed with the courts of appeals within the first 30 days after issuance of an order of removal, as the sole vehicle whereby aliens could challenge their removal." Id. As the Court of Appeals for the Third Circuit explained in Kolkevich, the immigration provisions of RIDA sought to end the disparity between the way criminal and non-criminal aliens were treated and, additionally, sought to "limit aliens to one bite of the apple with regard to challenging an order of removal" by eliminating district court involvement in the process and by allowing all aliens, including criminal aliens, to challenge an order of removal via petitions for review filed with the appropriate court of appeals.

Id. (quoting Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005)).

RIDA, by its plain language, strips district courts of jurisdiction to hear habeas corpus petitions challenging final orders of removal. Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005). Several district courts have construed RIDA to prohibit both direct and collateral attacks on removal orders in the district court. See, e.g., Garcia v. Holder, 788 F. Supp. 2d 326, 329 (S.D.N.Y. 2011) ("The Act strips all federal district courts of jurisdiction to hear any claims related to removal orders."); Persad v. Heathman, No. H-09-1013, 2009 WL 959120, at *2 (S.D. Tex. Apr. 6, 2009) ("[the petitioner's] motion to reopen appears to constitute a collateral attack on the existing removal order. . . . Because the REAL ID Act precludes jurisdiction over habeas petitions of the sort filed by Persad, or requests for relief under the All Writs Act, this court has no authority to consider his claims or to stay removal."); Aguiar ex rel. Wargo v. Mukasey, 547 F. Supp. 2d 182, 185 (D. Conn. 2008) (holding that RIDA precludes the court from exercising subject-matter jurisdiction over removal cases "regardless of whether the case is a direct or collateral challenge by a third party."). But see Tapia-Fierro v. Mukasey, 305 F. App'x 361, 362 (9th Cir. 2008) (holding that an alien's ...

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