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Verde-Rodriguez v. Attorney General United States of America

United States Court of Appeals, Third Circuit

August 15, 2013

JOSE PEDRO VERDE-RODRIGUEZ, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA

Argued May 14, 2013

Transferred from the United States District Court for the Western District of Pennsylvania (No. 2-11-cv-01475) pursuant to the REAL ID Act of 2005 as a Petition for Review of a Decision of the Board of Immigration Appeals (A 092 839 637)

Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

Jesse A. Drumm [Argued] Stephanie Noel [Argued] Duquesne University School of Law

Counsel for Petitioner/Appellant

Stuart F. Delery, Esq. Principal Dep. Assistant Attorney General, Civil Division Michelle G. Latour, Esq. Deputy Director Papu Sandhu, Esq. Senior Litigation Counsel [Argued] United States Department of Justice Office of Immigration Litigation, Civil Division 10300 P.O. Box 878 Ben Franklin Station Washington, DC 20044

Counsel for Respondent/Appellee

OPINION

CHAGARES, Circuit Judge.

In November 2011, Jose Pedro Verde-Rodriguez ("Verde") filed a petition for a writ of habeas corpus in the District Court for the Western District of Pennsylvania challenging his removal from the United States. The District Court concluded that it lacked subject matter jurisdiction over the petition and transferred the case to this Court. We will dismiss the petition for lack of jurisdiction.

I.

According to his habeas petition, Verde is a native of Mexico and became a lawful permanent resident of the United States in 1991. After several convictions for driving under the influence of alcohol (the "DUI convictions"), Verde was sentenced to two years and four months in state prison. In October 1998, Verde was charged with removability based on his status as an "aggravated felon" due to the DUI convictions. He appeared before an Immigration Judge ("IJ") with seven other Mexican nationals, and the IJ ordered Verde's removal on October 28, 1998. Verde returned to the United States, but was removed to Mexico for a second time in 2000. He was found in the United States once again in October 2011. Verde was served with a "Notice of

Intent/Decision to Reinstate Prior Order" on October 24, 2011, reinstating his 1998 removal order. This time, he was also charged with illegal reentry under 8 U.S.C. § 1326. The United States eventually dropped the § 1326 charge and allowed him to plead guilty to use of a false Social Security number in violation of 42 U.S.C. § 408(a)(7)(B). He was sentenced to time served and a one-year term of supervised release.

Verde filed a habeas petition seeking to be reinstated to his status as a U.S. permanent resident or to be granted cancellation of removal. His principal argument was that his initial removal was a gross miscarriage of justice because of procedural shortcomings that occurred during his 1998 removal hearing. He also asserted that because the Supreme Court later decided that a DUI conviction was not an aggravated felony, his conviction was not a valid basis for his original removal.

The District Court dismissed Verde's petition for lack of subject matter jurisdiction. It explained that the REAL ID Act of 2005 "'eliminated the availability of habeas corpus relief in the district courts for aliens seeking to challenge orders of removal.'" Appendix ("App.") 6 (quoting Kolkevich v. Att'y Gen. of U.S., 501 F.3d 323, 326 (3d Cir. 2007)). The District Court then provided two reasons for transferring the case to this Court. First, it concluded that "jurisdiction would have been proper in the Court of Appeals for the Third Circuit at the time petitioner's habeas petition was filed." App. 8. Second, the court noted that it had "serious concerns regarding whether the REAL ID Act should be construed as eliminating collateral review of deportation orders which were entered prior to the ...


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