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


12-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3921




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BLD-36                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 07-3921


                            MUHAMMAD WURIE JAH,
                                         Appellant,
                                   v.

                ATTORNEY GENERAL OF THE UNITED STATES

                     ____________________________________

           On Petition for Review from the Board of Immigration Appeals
                               BIA No. A46-372-828

         Initially Docketed as an Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 07-cv-01260)
                               Pursuant to Real ID Act.
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                     Submitted for Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                 October 25, 2007

                 Before: McKee, Rendell and Smith, Circuit Judges

                        (Opinion filed December 12, 2007 )


                                      OPINION




PER CURIAM
       Appellant Muhammad Wurie Jah, a citizen of the Netherlands, filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for

the Middle District of Pennsylvania, in which he challenged his current detention. Jah is

a detainee of the United States Immigration and Customs Enforcement (“ICE”) at the

Clinton County Correctional Facility in McElhattan, Pennsylvania. On February 23,

2006, ICE issued a Notice to Appear for removal proceedings, charging Jah as removable

under 8 U.S.C. § 1227(a)(2)(A)(iii), because he was convicted of an aggravated felony as

defined by 8 U.S.C. § 1101(a)(43)(M). Jah was convicted in a United States District

Court of aiding and abetting wire fraud in violation of 18 U.S.C. § 2 and § 1343. An

Immigration Judge sustained the charge and found Jah removable on February 23, 2007.

While Jah’s appeal to the Board of Immigration Appeals was pending, he filed the instant

habeas corpus petition on July 12, 2007, seeking release. The District Court denied it in

an order entered on July 31, 2007. Jah appeals.

       We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because

it clearly appears that no substantial question is presented by this appeal. As a threshold

matter, the REAL ID Act of 2005 eliminated judicial review in habeas of a final order of

removal. See Papageorgiou v. Gonzales, 413 F.3d 356, 358-59 (3d Cir. 2005). However,

Jah challenged an immigration detainer on statutory and constitutional grounds, and, at

the time he filed his habeas corpus petition, no final order of removal had been entered.

The habeas jurisdiction stripping provision of the Real ID Act does not apply to federal



                                              2
habeas corpus petitions that do not involve final orders of removal. See Nadarajah v.

Gonzales, 443 F.3d 1069, 1075-76 (9 th Cir. 2006). Federal district courts retain habeas

jurisdiction to examine the statutory and constitutional basis for a detention unrelated to a

final order of removal.

       However, as explained by the District Court, the detention of an alien pending a

final order of removal is authorized by 8 U.S.C. § 1226(a). Although section 1226(a)

permits the Attorney General to release an alien 1 on bond in the exercise of his discretion,

section 1226(c)(1) provides that: “The Attorney General shall take into custody any alien

who – (B) is deportable by reason of having committed any offense covered in [section

1227(a)(2)(A)(iii)],” the aggravated felony provision. Jah’s detention pursuant to 8

U.S.C. § 1226(c) is mandatory and does not violate due process even though he is a

lawful permanent resident. DeMore v. Kim, 538 U.S. 510, 523-24 (2003).2

       We will summarily affirm the order of the District Court denying the habeas

petition.




   1
    Jah’s long residence in the United States and application for naturalization does not
qualify him for United States nationality. Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir.
2003).
   2
     The specific issue presented by Jah’s petition is now moot in any event. On August
27, 2007, the Board of Immigration Appeals dismissed his appeal. Jah’s detention
pursuant to a final order of removal is authorized by 8 U.S.C. § 1231(a)(2). See also 8
U.S.C. § 1231(a)(6); Zadvydas v. Davis, 533 U.S. 678 (2001). Jah’s petition for review
of the BIA’s decision is pending in this Court at C.A. No. 07-3841.

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