United States 6th Circuit Court of Appeals Reports

KELLICI v. GONZALES, 05-3851/3852 (6th Cir. 12-21-2006)
ARDIAN KELLICI AND MARSIDA KELLICI, Petitioners, v. ALBERTO
GONZALES, Respondent. Nos. 05-3851, 3852. United States
Court of Appeals, Sixth Circuit. Submitted: October 31,
2006. Decided and Filed: December 21, 2006. Pursuant to
Sixth Circuit Rule 206.

On Petition for Review Upon Transfer from the Eastern
District of Michigan. Nos. A78 151 873; A78 151 874.

Benjamin Whitfield, Jr., Detroit, Michigan, for
Petitioners.

Robert W. Haviland, ASSISTANT UNITED STATES ATTORNEY,
Flint, Michigan, for Respondent.

Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.

ORDER AND OPINION

GRIFFIN, Circuit Judge. Petitioners Ardian and Marsida
Kellici are immigrants from Albania who entered the United
States illegally. Following immigration proceedings below,
they each petitioned the district court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The
district court transferred their petitions to this court
pursuant to § 106(c) of the REAL ID Act of 2005. On
appeal, the government moves to dismiss the petitions,
alleging that this court lacks jurisdiction.

For the reasons that follow, we grant the government’s
motion and remand the Kellicis’ petitions to the district
court.

I.

The Kellicis are natives and citizens of Albania. They
attempted to enter the United States using false passports
and were subsequently placed in removal proceedings. Their
applications for withholding of removal and relief under
the Convention Against Torture Act (“CAT”) were denied by
an Immigration Judge (“IJ”) in March 2002. They
subsequently appealed to the Board of Immigration Appeals
(“BIA”), which affirmed the IJ’s decision without opinion.
The Kellicis did not seek judicial review in this court,
but moved the BIA for reconsideration. Their motion for
reconsideration was denied, and the Kellicis timely
petitioned this court for review. On review, this court
initially noted that the original decision denying relief
from removal could not be reviewed because only the denial
of reconsideration was appealed. Then, this court held that
the Kellicis had not established any abuse of discretion by
the BIA in denying their motion for reconsideration and
denied the petition for review. See Kellici v. Ashcroft,
101 F. App’x 615 (6th Cir. 2004) (unpublished).

Following this decision, the Bureau of Immigrations and
Customs Enforcement (“ICE”) sent a letter to Ardian Kellici
directing him to report to the INS office in Detroit,
Michigan, on December 13, 2004. The letter was returned by
the Postal Service marked “Attempted Not Known.” On
February 1, 2005, ICE officials arrested Ardian and took him
into custody. On February 14, 2005, Ardian filed a petition
for a writ of habeas corpus in the Eastern District of
Michigan, claiming that he never received notice of the
December 13, 2004, report date. The petition did not
mention the hearings before the IJ and BIA, or the final
order of removal. The constitutional violation alleged in
the initial habeas petition was that “the government’s
failure to deliver or provide to Petitioner notice of the
date, time, and place of hearing denied him due process of
law. . . .” A stay of deportation was neither sought nor
granted, and, on February 16, 2005, before the government
received his habeas petition, Ardian was deported to
Albania. Marsida Kellici filed a similar habeas petition on
February 22, 2005. She alleged that “based upon what
happened to her husband, [she] is subject to a final Order
of Deportation, and is therefore in custody for purposes of
[28 U.S.C.] § 2243.” Like Ardian’s petition, her
petition challenged only the government’s failure to
provide notice as she “did not receive a copy of the Order
to Appear and thus lacked knowledge of the hearing.”

Ardian filed an amended habeas petition on April 22, 2005,
more than two months after his deportation, acknowledging
that he had been removed to Albania. He contended, among
other things, that his petition was not moot and that the
district court had jurisdiction “to review whether
inadequate or faulty translation services denied the
Petitioner the right to a full and fair [removal] hearing
and therefore deprived him of Due Process of Law in
violation of the Fifth Amendment.” He did not ask the
district court for permission to amend his petition, and,
for that reason, the government contends that the amended
petition was not properly before the court.

On May 11, 2005, the REAL ID Act of 2005 (“REAL ID Act”),
Pub.L. No. 109-13, 119 Stat. 231, became effective. On June
16, 2005, without the benefit of briefing from the parties,
the district court sua sponte transferred the Kellicis’
cases to this court pursuant to the REAL ID Act. The basis
for the transfers was that Ardian had been removed and was
no longer challenging his detention. In the view of the
district court, he was now contesting his final
administrative order of removal. Likewise, Marsida was not
detained and was also challenging her removal. Thus, the
district court concluded the cases were appropriate to
transfer to this court.

The government now moves to dismiss and remand to the
district court on the ground that the transfer of these
cases was not authorized by the REAL ID Act. We agree and
therefore grant the motion.

II.

The district court transferred this habeas petition
pursuant to Section 106(c) of the REAL ID Act, which
provides:

If 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 [May 11, 2005], 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 [subsec. (b)(2) of
this section]), as amended by this section, or under
section 309(c)(4)(D) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note).
The court of appeals shall treat the transferred case as
if it had been filed pursuant to a petition for review
under such section 242, except that subsection (b)(1) of
such section [subsec. (b)(1) of this section] shall not
apply.

8 U.S.C. § 1252(a)(5), as added by §
106(a)(1)(B) of the REAL ID Act, Pub.L. 109-13 (emphasis
added). In short, this statute deprives the district court
of jurisdiction over habeas petitions challenging “final
administrative order[s] of removal, deportation, or
exclusion.” Id. When transferring petitioners’ cases to
this court, the district court reasoned:

Although the petition was filed on February 14, 2005
while Petitioner was being detained . . . Petitioner was
deported two days later. . . . The deportation hearing was
pursuant to the removal order of the Immigration Judge.
Therefore, Petitioner is not challenging any detention,
but rather the final administrative order of removal.

The initial question is whether we have jurisdiction over
the first, second, or both of Ardian’s habeas petitions.
The first habeas petition, filed on February 16, 2005,
challenged the constitutionality of Ardian’s arrest and
detention and, as the district court concluded, possibly
implicated the underlying order of removal. Ardian’s amended
petition, filed on April 22, 2005, explicitly challenged
the constitutionality of the arrest, detention, and
underlying order of removal.

Petitioners argue that jurisdiction, after having properly
attached in a habeas proceeding, is not divested by the
removal of petitioners from the United States, and, thus,
the court should consider the second habeas petition. The
government disagrees and urges this court to hold that the
second petition is invalid pursuant to Federal Rule of
Civil Procedure 15(a) and because Ardian’s second habeas
petition was not filed while he was “in custody under or by
color of the authority of the United States.” We agree with
the government with respect to the former argument and thus
need not address the latter.

Section 2242 provides that an application for a writ of
habeas corpus “may be amended or supplemented as provided
in the rules of procedure applicable to civil actions.” 28
U.S.C. § 2242. The applicable civil rule, Federal
Rule of Civil Procedure 15(a), provides that a party may
amend its pleading “once as a matter of course at any time
before a responsive pleading is served or [in certain
circumstances] . . . within 20 days after it is served.
Otherwise, a party may amend the party’s pleading only by
leave of court or by written consent of the adverse party.
. . .” Here, Ardian Kellici’s second petition was filed
after the government had filed a responsive pleading and
was not subject to the twenty-day exception. Petitioner
neither sought nor obtained leave of court or the consent
of the government to amend the petition. Accordingly, we
conclude that the amended petition was not properly before
the court. Thus, we consider only Ardian’s first habeas
petition.

III.

Having concluded that we will address only Ardian’s first
habeas petition and Marsida’s petition, we next consider
whether these petitions challenge the “final order of
removal,” thus affording this court jurisdiction under the
REAL ID Act.

The REAL ID Act applies only to habeas cases, or the
relevant portion of habeas cases, pending on May 11, 2005
“challenging a final administrative order of removal,
deportation, or exclusion . . . .” § 106(a)(1)(B),
Pub.L. No. 109-13. Whether an alien’s habeas petition
necessarily challenges the merits of the underlying
administrative order of removal for purposes of
jurisdiction under the REAL ID Act is a matter of first
impression in this circuit; we conclude that it does not.
[fn1] Where a habeas case does not address the final order,
it is not covered by the plain language of the Act. The
First Circuit recently addressed this issue, and held that
where a petitioner challenged only his continued detention
in a habeas petition, rather than his removal, the case
could not be transferred to the court of appeals pursuant
to Section 106(c). Hernandez v. Gonzales, 424 F.3d 42,
42-43 (1st Cir. 2005) (“[According to] the legislative
history of the Act, those provisions were not intended to
‘preclude habeas review over challenges to detention that
are independent of challenges to removal orders.'” (quoting
H.R. Cong. Rep. No. 109-72, at 2873 (May 3, 2005)). [fn2]
Based upon the plain language of the statute, Arlington
Central Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. ___, 126
S. Ct. 2455 (2006), we agree with this conclusion.

Here, Ardian’s first petition and Marsida’s petition did
not contest or even mention the hearings before the IJ and
BIA and the final order of removal. The government
contends, and we agree, that the Kellicis’ habeas petitions
challenged only the constitutionality of the arrest and
detention, not the underlying administrative order of
removal. Therefore, we hold that we lack jurisdiction over
these due process claims and, accordingly, remand to the
district court.

IV.

For the foregoing reasons, we grant the motion to dismiss
and remand Ardian Kellici’s first habeas petition and
Marsida Kellici’s petition to the district court for
further proceedings.

[fn1] We take note of the sparse collection of cases
addressing the REAL ID Act. This court recently addressed a
case where an alien’s basis for filing a habeas petition
was a lack of due process claim stemming from allegedly
ineffective assistance of counsel. Feldman v. Gonzales, No.
04-3784, 2005 WL 3113488 at *2 (6th Cir. Nov. 21, 2005)
(unpublished). Although the petitioning immigrant framed
his habeas petition only as an ineffective assistance of
counsel claim, not a direct challenge to the merits of the
administrative order of removal, this court proceeded to
address Feldman’s arguments, thereby implicitly assuming
jurisdiction over the petition. Id.

Similar in result is an Eighth Circuit case, where —
like here — the petitioning alien filed a habeas
petition challenging his detention for lack of notice
regarding his removal hearing. Haider v. Gonzales, 438 F.3d
902, 910 (8th Cir. 2006). Addressing a very similar set of
facts, the court held:

[t]he District Court concluded that it was “left with the
inescapable conclusion that [Haider]’s challenge to the
constitutionality of the notice provided to him, is, in
effect, a challenge to the ultimate Order of Removal.”
Report & Recommendation at 8. The Petition for Review
that Haider filed with this Court vested in us “the sole
and exclusive means for judicial review of an order of
removal.” REAL ID Act of 2005, Pub.L. No. 109-13, Div. B,
Title I, § 106(a), 119 Stat. 231, 310 (2005)
(codified at 8 U.S.C. § 1252(a)(5)). We agree with
the District Court that Haider makes the same argument,
i.e., that the in absentia removal order was invalid due
to lack of notice, in his Petition for Writ of Habeas
Corpus that he makes in his Petition for Review. Because
Haider’s Petition for Writ of Habeas Corpus does nothing
more than attack the IJ’s removal order, our Court “shall
be the sole and exclusive means for judicial review.”
Accordingly, we conclude that the District Court rightly
complied with the REAL ID Act by transferring Haider’s
habeas case to us.

Id. Likewise, in Ginters v. Cangemi, 419 F. Supp. 2d 1124
(D. Minn. 2006) (transferred to Ginters v. Gonzales, No.
06-16-73, 2006 WL 3371648 (8th Cir. July 28, 2006)), the
district court found that a determination in favor of an
alien on his claim that there was an improper determination
that his marriage to an American citizen was a sham
indirectly challenged the validity of his removal order,
even though the petition did not ask the court to
specifically review the denial of his asylum application
and withholding of removal. Thus, the district court
concluded, it did not have habeas corpus jurisdiction over
his claim.

[fn2] See also Nadarajah v. Gonzales, 443 F.3d 1069, 1075
(9th Cir. 2006) (“By its terms, the jurisdiction-stripping
provision [of the REAL ID Act] does not apply to federal
habeas corpus petitions that do not involve final orders of
removal.”); Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006)
(holding no removal order where an alien brought claims
against an immigration inspection officer alleging that he
was improperly detained); Singh v. Chertoff, No. C05-1454,
2005 WL 2043044 (N.D. Cal. Aug. 24, 2005) (holding that an
alien’s due process challenges to the procedures used in
terminating his asylum status did not arise out of the
government’s attempt to remove him from the United States,
and, thus, the district court had jurisdiction over the
case); Ahmad v. Chertoff, No. 05-0853, 2005 WL 1799752
(W.D. Wash. July 27, 2005) (unpublished) (transferring the
portion of the petitioner’s claim that challenged the order
of removal to appellate court, but retaining jurisdiction
over the portion that challenged his continued detention).