                                                                                F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         U N IT E D ST A T E S C O U R T O F A PP E A L S April 16, 2008

                                      T E N T H C IR C U IT             Elisabeth A. Shumaker
                                                                            Clerk of Court


 C AN D A L N G U Y EN ,

          Petitioner ,
                                                                  No. 06-9529
 v.
                                                              (Petition for Review)
 M ICHA EL B . M U K A SEY ,
 Attorney General, *

          Respondent .



                                O R D E R A N D JU D G M E N T * *


Before H E N R Y , Chief Judge, T Y M K O V IC H , and H O L M E S, Circuit Judges.


      Petitioner Candal Nguyen filed a petition in this Court seeking to challenge

the affirmance by the Board of Immigration Appeals (“BIA”) of his continued

detention under 8 U.S.C. § 1231(a)(6) and now seeks to have this matter



      *
          In accordance with Fed. R. App. P. 43(c)(2), M ichael B. M ukasey is
substituted for Alberto R. Gonzales as respondent in this appeal.
      **
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
transferred to the United States District Court for the District of Colorado. W e do

not have jurisdiction under 8 U.S.C. § 1252(a)(1), but we do have authority under

28 U.S.C. § 1631 to transfer the case. W e conclude that transfer is not warranted

under these circumstances and, accordingly, D E N Y the motion to transfer and

D ISM ISS the petition for want of jurisdiction.

                                I. B A C K G R O U N D

      M r. Nguyen, a citizen of Vietnam w ho entered the United States in 1980

and had his status adjusted to a lawful permanent resident, became subject to a

removal order on July 16, 2003, after being charged as removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for a 1985 M ississippi conviction of grand larceny, an

aggravated felony under 8 U.S.C. § 1101(a)(43). He waived his appeal of the

removal order. W hen his removal could not be effectuated, he remained in

custody, and after various administrative processes the BIA upheld his continued

administrative detention under 8 C.F.R. § 1241.14 on the ground that his release

would present a special danger to the public. On M arch 13, 2006, M r. Nguyen

filed in this Court a petition for review of the BIA’s decision regarding his

continued detention, along with a motion to proceed in form a pauperis.

      M r. Nguyen later concluded that this Court does not have jurisdiction under

8 U.S.C. § 1252(a)(1) (granting jurisdiction to review only “a final order of

removal”)— a point as to which the parties agree. He acknowledges that a



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challenge to his immigration detention should have been brought in federal

district court as a habeas petition under 28 U.S.C. § 2241, see Ferry v. Gonzales,

457 F.3d 1117, 1131 (10th Cir. 2006) (noting “a district court’s jurisdiction to

review habeas petitions challenging an alien’s detention”), and that this Court

does not have original jurisdiction over habeas petitions, see Trevino-Casares v.

U.S. Parole Commission, 992 F.2d 1068, 1070 (10th Cir. 1993) (“[T]he circuit

courts of appeal have no original jurisdiction to consider habeas corpus

petitions.”). Therefore, M r. Nguyen moved, on August 23, 2006, to have the

petition transferred to the District Court for the District of Colorado.

      Previously, on July 15, 2005, M r. Nguyen had filed a habeas petition in the

District Court for the District of Colorado, alleging that his continued detention

violated the principles set forth in Zadvydas v. Davis, 533 U.S. 678 (2001).       In

June 2006, the government granted M r. Nguyen supervised release, delivering him

to a social service agency in North Carolina. The district court denied the habeas

petition as moot on the grounds that M r. Nguyen had obtained all of the relief that

he would be entitled to under the petition. Subsequently, the BIA reopened the

removal case and remanded the matter back to an immigration judge, who in turn

administratively closed the case without issuing a new removal order. Because

the administrative action meant M r. Nguyen was not currently subject to a




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removal order, the district court denied a motion for reconsideration as moot on

M arch 23, 2007, and closed the case.




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                                 II. D ISC USSIO N

      W e do not have jurisdiction over this petition because M r. Nguyen only

seeks review of the administrative decision regarding his continued detention, not

review of the “final order of removal.” See 8 U.S.C. § 1252(a)(1). Under 28

U.S.C. § 1631, we have authority to transfer “a petition for review of

administrative action” for which we lack jurisdiction to any other court in which

the action could have been brought, “if it is in the interest of justice.” The

decision whether to transfer under § 1631 instead of dismissing without prejudice

is a matter of discretion. See Trujillo v. W illiams, 465 F.3d 1210, 1222-23 (10th

Cir. 2006).

      Here, we do not find the transfer to be “in the interest of justice.” M r.

Nguyen has represented to this Court that his habeas proceeding in the District

Court for the District of Colorado, Nguyen v. Gonzales, No. 05-CV-1332 (D.

Colo.), raised the “same issues” and sought “resolution of the same controversy”

involving the “same parties” as the petition before us. Pet. A beyance M ot. at 5.

The district court dismissed that case as moot. Thus, there is every reason to

conclude that the district court would find M r. Nguyen’s petition here equally

moot because of his release and the absence of a removal order. Dismissal will

work no prejudice on any other potential claims M r. Nguyen may have in his

current situation.



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       M r. Nguyen’s motion for transfer to the district court is D E N IE D . This

petition is D ISM ISSE D for lack of jurisdiction. The motion to proceed in form a

pauperis is G R A N T E D .




                                        Entered for the Court


                                        JERO M E A. HO LM ES
                                        Circuit Judge




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