                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2007

Nnadika v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-3915




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Nnadika v. Atty Gen USA" (2007). 2007 Decisions. Paper 1151.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1151


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 05-3915


                      DAVID NNADIKA,
                                  Petitioner
                            v.

   ATTORNEY GENERAL OF THE UNITED STATES**,
                             Respondent


               On Petition for Review of an Order
              of the Board of Immigration Appeals
                       (No. A73-645-622)
            Immigration Judge: Hon. Daniel Meisner

   Initially docketed as a Habeas Petition in the United States
    District Court for the District of New Jersey at D. C. No.
   05-cv-01862 and Transferred to this Court Pursuant to the
                          REAL ID ACT

           Submitted Under Third Circuit LAR 34.1(a)
                        March 8, 2007

     Before: SLOVITER and AMBRO, Circuit Judges, and
                 POLLAK,* District Judge



       *
        Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.

         ** Because we have converted the present case into a
petition for review, we are required to substitute the Attorney
General for the current respondents (BCIS and Secretary of
Homeland Security).
                      (Filed April 27, 2007)

Robert Frank
Frank & York
Newark, N.J. 07102

       Attorney for Petitioner

Colette R. Buchanan
Office of United States Attorney
Newark, N.J. 07102

       Attorney for Respondents
                            _____

                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

       This matter comes before this court after having been
transferred from the United States District Court for the District
of New Jersey pursuant to the REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231 (codified as amended at 8 U.S.C. §
1252). The transfer presents a procedural issue that has been
addressed only recently. Some review of the history of this case
is necessary to understand what is at issue.

                                 I.

        David Nnadika, who is a native and citizen of Nigeria,
filed a Petition for Writ of Habeas Corpus and Complaint for
Declaratory and Injunctive Relief in the District Court. Nnadika
named as respondents Michael Chertoff, Secretary of the
Department of Homeland Security; Michael J. Garcia, Assistant
Secretary of U.S. Immigration Customs Enforcement
(“USCIS”); Michael Anderson, Interim Field Office Director
USCIS; William Joyce, Officer in Charge of Elizabeth [New
Jersey] Detention Facility; Alberto Gonzales, Attorney General;
and Eduardo Aguirre, Assistant Secretary USCIS. Nnadika’s
Petition/Complaint made essentially two claims, as appears from

                                 2
the title. He sought to enjoin respondents from removing him
and also sought an order to USCIS to grant reconsideration and
approval of his form I-730 Asylee Relative Petition.
        Nnadika is a 47-year-old male who participated in anti-
government protests in his native Nigeria. In November of
1993, Nnadika left Nigeria and went to Kenya with his then-wife
who, at the time of the immigration hearing, remained in Kenya.
He entered the United States on September 17, 1994 without
inspection and submitted an application for asylum on or about
November 7, 1994. His administrative asylum application was
not granted and he was referred to an Immigration Judge (“IJ”).
At that hearing, Nnadika testified that he was a member of the
Social Diplomatic Party (“SDP”), a political organization in
Nigeria that supported the candidacy of an individual who was
elected to the Nigerian presidency in 1993, but whose election
was not recognized by the Nigerian dictator. Nnadika testified
that the Nigerian military police shot his father, another SDP
activist, during a protest in November of 1993, and that Nnadika
himself feared that he would be killed if deported to Nigeria.

       The IJ noted that Nnadika had not submitted any evidence
to establish his or a relative’s membership in the SDP or any
political organization, or to corroborate the shooting. The IJ
found that Nnadika had not established more than “general
problems” in Nigeria to support his request for asylum. App. at
47. Because Nnadika had not presented evidence of past
persecution in Nigeria despite having had nearly two years to
document the background of his case, the IJ held that he had not
met his burden of proof and denied the request for asylum and
withholding of deportation.1 He advised Nnadika that any
appeal must be filed by May 13, 1996.

       Nnadika did not file his notice of appeal to the Board of
Immigration Appeals until May 22, 1996, which the BIA
dismissed as untimely because it had not been filed within ten
days after the IJ’s decision was rendered, as required by 8 C.F.R.
§§ 3.3, 3.38(b), and 242.21(a).


       1
         The IJ granted Nnadika’s alternative application for
voluntary departure with a departure deadline of June 3, 1996.

                                3
       Nnadika did not voluntarily depart by June 3, 1996, as
ordered by the IJ. Instead, he remained in the United States and
married Umaka Hilda Umonnakwe (“Umonnakwe”) in Jersey
City, N.J., on November 15, 1997. Umonnakwe was granted
asylum by an IJ in New York City on March 19, 1998.2

        On April 16, 1999, Nnadika filed a motion to reopen his
deportation proceedings so that he would have the opportunity to
receive asylee status based on his wife’s asylum status. The IJ
denied Nnadika’s motion on May 25, 1999, stating that the
Immigration Court did not have jurisdiction under the
circumstances to adjudicate a derivative asylum request and that
Umonnakwe had not filed form I-730 with the INS as required
for a spouse to receive asylee status. On December 13, 1999, the
BIA affirmed the IJ’s decision to deny Nnadika’s motion to
reopen, agreeing with the INS that Nnadika’s motion to reopen
had not been timely filed under 8 C.F.R. § 3.23(b).

        Undeterred, Umonnakwe filed an I-730 form on behalf of
Nnadika on December 11, 2000 and again on December 18,
2001. Both were denied as untimely filed, having been filed
more than two years after Umonnakwe was granted asylum on
March 19, 1998. The denial letters stated that “[i]t does not
appear that circumstances exist which would warrant the
extension of the filing period. Therefore, you are ineligible to
file Form I-730 at this time, and this petition may not be
approved.” App. at A. They further stated, however, that if
Umonnakwe could overcome the grounds for denial in the
future, she could refile with the appropriate documentation.



       2
         The Government notes in its brief that Nnadika’s marital
situation is somewhat unclear from the record. At his immigration
hearing on May 3, 1996, Nnadika presented three letters that he
said were from his wife, Amaka Nnadika. He also testified that at
that time she was living in Kenya. The marriage license issued to
Nnadika and Umonnakwe, dated November 21, 1997, lists
Nnadika’s marital status as widowed. The record does not contain
any clarification, but we need not pursue that matter as it is not
relevant to the issue before us.

                                4
       Nnadika, having been unsuccessful in his applications at
the agency level, then turned to the District Court and filed the
above referenced Petition for Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief. The
Petition/Complaint alleged that the District Court had habeas
jurisdiction to review Nnadika’s detention pursuant to 28 U.S.C.
§ 2241, and that it may exercise jurisdiction pursuant to 28
U.S.C. § 1331 and mandamus jurisdiction pursuant to 28 U.S.C.
§ 1361. The Petition/Complaint also claims that he is entitled to
review of deportation as a matter of constitutional right and
under the common law.

        To the extent that the complaint seeks a writ of habeas
corpus, Nnadika alleged that he has been in the physical custody
of the Newark District of Immigration and Customs
Enforcement (“ICE”), detained at the Elizabeth Detention
Facility in Elizabeth, New Jersey, since March 2005 where he
has been held pursuant to ICE’s contract to house immigration
detainees. He alleged that he exhausted his administrative
remedies and is under an order of deportation by the
Immigration Judge who denied his motion to reopen and stay
deportation. In addition, Nnadika’s Petition claims that he is
entitled to derivative asylum under the INA but that his form I-
730 Asylee Relative Petition has been denied for having been
filed out of time. He asserts mandamus jurisdiction pursuant to
28 U.S.C. § 1361.

       The District Court heard oral argument on June 27, 2005
and entered an order dated June 29, 2005 that denied the
Government’s motion to reconsider and vacate the stay of
removal; that denied the petition for habeas corpus “insofar as it
challenges the detention of the Petitioner by Respondents,” that
ordered that “pursuant to the REAL ID Act . . . the remainder of
the Petition, which challenges the Order of Deportation or
Removal which was entered following proceedings before the
immigration court in Newark, New Jersey, be and hereby is
[transferred] to the United States Court of Appeals for the Third
Circuit to be treated as a ‘Petition for Review.’” Finally, the
Court ordered that the stay of removal it had previously ordered
remain in effect during and after the transfer of the case to the
Court of Appeals, noted that the Respondents may move in this

                                5
court to vacate the stay, and ordered the case closed on the
District Court’s docket. We consider in the first instance the
question of jurisdiction, both in this court and in the District
Court, in light of the unusually titled document Nnadika filed.

                                II.

       When Congress enacted the REAL ID Act, it included the
following:

       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
       ....

8 U.S.C. § 1252 Note, see also 119 STAT. 311 (2005) (emphasis
added).3

       The REAL ID Act thus distinguishes between those
challenges brought by an alien to “a final administrative order of
removal, deportation, or exclusion,” and those challenges made
to other aspects of the administrative proceeding. Because the
REAL ID Act is relatively recent legislation, the courts have just


       3
         The fact that the Note was never codified does not detract
from its force. See United States v. Welden, 377 U.S. 95, 98 n.4
(1964).

                                 6
begun to focus on the distinction. This court did so to some
extent in Kumarasamy v. Att’y Gen., 453 F.3d 169 (3d Cir.
2006). Kumarasamy had been charged with being subject to
removal as a non-immigrant who remained in the United States
beyond the authorized time. Id. at 170. He sought asylum,
protection under the Convention Against Torture (“CAT”), and
withholding of removal. Id. The IJ denied the major portion of
his application but granted withholding of removal to Sri Lanka.
Id. at 171. Kumarasamy remained in this country for four years.
Then, on motion of the Department of Homeland Security
(“DHS”), the IJ amended the order to reflect an underlying order
of removal that had been omitted from the original order. Id.
Thereafter, Kumarasamy was deported to Canada
notwithstanding the IJ’s expressed intention to stay the
deportation. Id. Kumarasamy filed a petition for a writ of
habeas corpus in the District Court for the District of New Jersey
which was removed to this court, ostensibly under the REAL ID
Act. Id. at 171-72.

       The Government argued that because of the provisions of
the REAL ID Act, we were obliged to treat the appeal as a
Petition for Review. We disagreed, reasoning that
“Kumarasamy is not seeking review of an order of removal.
Rather, he claims that his deportation was illegal because there
was no order of removal.” Id. at 172 (emphasis in original). We
recognized that although an order of removal “was issued, albeit
belatedly,” it was Kumarasamy’s argument that his removal was
improper because there was no such order. Id. We held that
“[u]nder the REAL ID Act, by its own terms, we have
jurisdiction only in those cases in which the petitioner seeks
review of a final order of removal. ” Id. Because Kumarasamy
was not seeking review of a removal order, we declined to
convert the appeal into a petition for review.4
       The decision in Kumarasamy was followed by the Court


       4
        On the merits, we held that Kumarasamy was not in
custody when he filed his petition for habeas corpus (having been
removed to Canada) and thus we affirmed the order of the District
Court dismissing his habeas petition for lack of jurisdiction.
Kumarasamy, 453 F.3d at 172-73.

                                7
of Appeals for the Eleventh Circuit in Madu v. Att’y Gen., 470
F.3d 1362 (11th Cir. 2006). In that case the petitioner, who
previously had been placed in deportation proceedings on the
charges of working without permission, had been granted
permission to voluntarily depart in lieu of being deported. Id. at
1364. He chose to depart to Mexico City, but upon his reentry to
this country without inspection, he was detained. Madu argued
that he had complied with the voluntary departure order by
leaving the United States by June 5, 1987, as directed by the IJ’s
order, and thus he was not subject to a removal order when he
reentered the country. Id. He filed a petition for habeas corpus
claiming that the Government was “holding him against his
constitutional rights under the fictitious pretense that he is
subject to a final order of deportation.” Id. at 1365 (internal
citation and quotation marks omitted). The Court of Appeals
rejected the Government’s contention that the court had
jurisdiction pursuant to the REAL ID Act. It adopted the
reasoning of Kumarasamy, noting that “the question presented
by Madu’s habeas petition is whether it is a removal order at
all,” which it held “is a different question than whether an extant
removal order is lawful.” Id. at 1367 (internal citation omitted).
It concluded that because Madu was not challenging “a final
administrative order of removal” or seeking review of a removal
order, it lacked jurisdiction under the REAL ID Act. Id.

        The decision of the Court of Appeals for the Eighth
Circuit in Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006),
presented a contrasting scenario. Haider sought to challenge an
order in absentia removing him to Bangladesh after he failed to
appear at his removal hearing. He contended that he had not
received the required notice of the date and time for the hearing,
in violation of his due process rights. Id. at 906. His contention
was rejected both by the IJ, who denied his motion to reconsider,
and the BIA, which affirmed. Haider filed a petition for habeas
corpus, that was transferred to the Court of Appeals pursuant to
the REAL ID Act. Id. Haider’s challenge to the jurisdiction of
the Court of Appeals was rejected. The Court of Appeals agreed
with the conclusion of the District Court “that [Haider]’s
challenge to the constitutionality of the notice provided to him,
is, in effect, a challenge to the ultimate order of removal.” Id. at
910. It concluded that the District Court had complied with the

                                 8
REAL ID Act by transferring Haider’s habeas case because his
petition for a writ of habeas corpus did nothing more than attack
the IJ’s removal order. Id.

        The Haider decision was distinguished by the Court of
Appeals for the Sixth Circuit in Kellici v. Gonzales, 472 F.3d
416 (6th Cir. 2006). The Kellicis’ applications for withholding
of removal and relief under the Convention Against Torture
(“CAT”) were denied by the IJ. Id. The Kellicis’ motion for
reconsideration was denied by the BIA, and their subsequent
Petition for Review in the Court of Appeals was also denied. Id.
at 417. Thereafter, ICE sent a letter to Kellici directing him to
report to the INS office by December 13, 2004, but that letter
was returned by the Postal Service marked “Attempted Not
Known.” Id. Soon thereafter, ICE officials arrested Ardian
Kellici and took him into custody. Id.

        He filed a petition for writ of habeas corpus in the district
court, claiming that he never received notice of the report date.
The district court sua sponte transferred the Kellicis’ cases to the
Court of Appeals pursuant to the REAL ID Act. Id. The
Government moved to dismiss and remand the case to the
district court on the ground that the transfer of the Kellicis’ cases
was not authorized by the REAL ID Act. Id. The Court of
Appeals agreed, holding that the habeas petition was not covered
by the plain language of the Act. As the court noted:

       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

                                 9
       lacked knowledge of the hearing.”

472 F.3d at 417.

       According to the Court, the Kellicis’ petitions challenged
only the constitutionality of the arrest and detention, not the
underlying administrative order of removal. Therefore, it held it
lacked jurisdiction over the due process claims and remanded
them to the district court. Id. at 420.

        Reference to the legislative history of the REAL ID Act
provides clarification of the applicability of its jurisdiction-
stripping and transfer provisions. It also clarifies which cases
are not to be transferred. The Congressional Report states that
the provisions directing the transfer to the Courts of Appeals of
habeas cases “challenging a final administrative order of
removal,” 8 U.S.C. § 1252 Note, Transfer of Cases, were not
intended to “preclude habeas review over challenges to detention
that are independent of challenges to removal orders.” H. R.
Cong. Rep. No. 109-72 at 2873 (May 3, 2005). See Hernandez
v. Gonzales, 424 F.3d 42 (1st Cir. 2005). 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. See Nadarajah v. Gonzales,
443 F.3d 1069, 1075-76 (9th Cir. 2006) (declining to transfer);
Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006) (same).

        We must be careful to maintain the distinction Congress
made in the REAL ID Act between those challenges that must be
transferred and those that must be retained in and decided by the
district court. Arguably, any challenge by an alien who seeks to
remain in this country could be construed as challenging his or
her “removal, deportation, or exclusion,” but such a broad
interpretation would be counter to Congress’ express intent.
Instead, only challenges that directly implicate the order of
removal, such as the challenge to the notice of the removal
hearing in Haider, are properly the subject of transfer under the
REAL ID Act.

                               III.


                               10
        We thus turn to consider whether the transfer of
Nnadika’s case was appropriate. In directing the transfer of
Nnadika’s Petition/Complaint, the District Court did not discuss
the challenge. Nonetheless, we must decide the question,
because it implicates our own jurisdiction which is always open
to question. On its face, Nnadika’s Petition/Complaint does
appear in part to challenge the order of removal, a challenge that
would fall within our jurisdiction. It follows that the District
Court did not err in directing the transfer. However, the
situation appears to have changed on appeal. The Government
notes in its brief on appeal that “[Nnadika] does not challenge a
final order of removal or deportation in this Court.”
Respondent’s Br. at 8. Nnadika’s brief asserts that there are
three issues presented:

              1. That USCIS’ failure to properly adjudicate the
       asylee relative petition, as it is required to pursuant to
       their own regulations, prevented the Petitioner from
       reopening his case before the Immigration Judge.

              2. Assuming in arguendo that the asylee relative
       petition was filed late, USCIS should be compelled,
       pursuant to its own regulations, to address the
       humanitarian grounds for accepting a late-filed I-730
       petition.

               3. USCIS’ two-year deadline for filing an I-730
       petition is an arbitrary exercise of agency authority, and is
       contrary to the spirit and purpose of asylum law. As
       such, it is an invalid exercise of agency authority.

Petitioner’s Br. at 1-2.
        The argument section of Nnadika’s brief expounds on
these three issues. Of course, if Nnadika is unsuccessful in his
effort to get relief from the denial of the I-730 petition, the result
will undoubtedly be deportation, but the arguments made point
to no legal error in the final order of removal – namely, the BIA
order of December 13, 1999 affirming the IJ’s denial of
Nnadika’s motion to reopen. Accordingly, Nnadika’s petition
for review of the order of removal must be denied as without
merit. To the extent that Nnadika seeks declaratory and

                                  11
injunctive relief directed to the denial of his I-730 petition, that
claim does not fall within the REAL ID Act’s authority for
transfer and should have remained with the District Court. To
the extent that Nnadika is detained as a result of the denial of the
I-730 petition, the claim would appear to fall within the District
Court’s mandamus jurisdiction.

        We note, however, that the Government also argues that
“under 8 U.S.C. § 1252(a)(2)(B)(ii), review of the decision to
deny the petition for asylee relative status is barred because it is
a decision which is specified to be in the discretion of the
Secretary of Homeland Security or the Attorney General.”
Respondent’s Br. at 11. Because that claim was improperly
transferred under the REAL ID Act, we do not have jurisdiction
over it. We leave to the District Court consideration of the
Government’s argument in the first instance. Ordinarily, we
would assume that the portion of the case that should not have
been transferred remains in the District Court. However, the
District Court’s order closed the case. To avoid any uncertainty,
in an abundance of caution, we will remand that portion of the
Petition/Complaint that challenges the decision with respect to
the I-730 petition. By remanding, we do not suggest that we
reject the Government’s argument that the issue is not subject to
judicial review. We will deny the remaining portion of the
Petition for Review.




                                 12
