                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 15 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAUL OJEDA,                                       No. 09-56837

              Petitioner - Appellant,             D.C. No. 2:09-cv-07612-PA-RC

  v.
                                                  MEMORANDUM *
U.S. DEPARTMENT OF HOMELAND
SECURITY,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                           Submitted February 11, 2011 **
                               Pasadena, California

Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.

       Raul Ojeda appeals the district court’s summary dismissal of his 28 U.S.C. §

2241 habeas corpus petition. Ojeda argues that he was deported despite his claim

to United States citizenship, in violation of his constitutional rights. Because the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court correctly dismissed the petition based on lack of subject matter

jurisdiction, we affirm.

      The district court did not err when it concluded that the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, precluded it from having subject matter

jurisdiction to consider Ojeda’s claims. Because Ojeda filed his habeas petition

after his removal from the United States, the district court did not have jurisdiction

over his petition. See Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir.

2008). Under Section 106(a) of the REAL ID Act, “a petition for review filed with

an appropriate court of appeals . . . shall be the sole and exclusive means for

judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Moreover,

constitutional claims or questions of law are also properly raised in a petition for

review before the court of appeals, not the district court. 8 U.S.C. § 1252(a)(2)(D).

Finally, while the record before us is scant, even “non-frivolous” claims to

citizenship must be brought under a petition for review with the appropriate court

of appeals. Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007). Because Ojeda has

been deported, he may also submit evidence of his citizenship to a United States

Consulate abroad.

      We are also without jurisdiction to convert Ojeda’s § 2241 habeas petition

into a petition for review and to transfer it to ourselves under 28 U.S.C. § 1631. A


                                           2
petition for review of a final order of removal must be filed within 30 days of the

filing of the removal order. 8 U.S.C. § 1252(b)(1). Because Ojeda’s habeas

petition was filed more than 30 days after his final order of removal was entered,

we would lack jurisdiction over his petition for review had it been properly filed.

Thus, 28 U.S.C. § 1631 is inapplicable.

      AFFIRMED.




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