                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-60725
                           Summary Calendar


JEAN A. DORIVAL,

                                      Petitioner-Appellant,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                      Respondent-Appellee.

                          --------------------
                 28 U.S.C. § 2241 petition transferred
                 from the United States District Court
                  for the Eastern District of New York
                       USDC No. 1:02-cv-06162-DGT
                               A91 420 735
                          --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Haitian citizen Jean Dorival filed a 28 U.S.C. § 2241

petition for writ of habeas corpus in district court for the

Eastern District of New York challenging the Immigration Judge’s

order of removal from the United States.      In his petition he

asserted a claim that he was a national of the United States.

The district court transferred Dorival’s habeas corpus petition

to this court.    Dorival requests a stay of removal; that request


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-60725
                                 -2-

is DENIED.    The Respondent, Attorney General Ashcroft, moves for

dismissal of the case for lack of jurisdiction and, in the

alternative, for summary affirmance.   Ashcroft’s motion for

summary affirmance is DENIED.   Dorival moves for leave to file an

out-of-time response to Ashcroft’s motion for summary affirmance;

Dorival’s motion is DENIED.

     28 U.S.C. § 1631 permits a transfer if this court would have

been able to exercise jurisdiction on the date that the case was

filed in the district court, the district court lacked

jurisdiction over the case, and the transfer is in the interest

of justice.   Dorival filed his 28 U.S.C. § 2241 petition in the

district court before he exhausted his administrative remedies

before the Board of Immigration Appeals.   Therefore, this court

could not have exercised jurisdiction over the petition on the

date that Dorival filed the petition in district court.    See

Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th Cir. 2001); 8

U.S.C. § 1252(d)(1) (a court may review a final order of removal

only if the alien has exhausted all administrative remedies as of

right).

     DISMISSED for lack of jurisdiction.
