                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2739




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"Chirikadzi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1584.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1584


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                                                  NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                            NO. 05-2739
                         ________________

                     BEN TATU CHIRIKADZI,

                                  Petitioner


                                  v.

              ATTORNEY GENERAL OF THE UNITED
          STATES OF AMERICA; BUREAU OF IMMIGRATION
                  & CUSTOMS ENFORCEMENT,

                                 Respondents


              ____________________________________

                  On Petition for Review of an Order
                  of the Board of Immigration Appeals
                   Immigration Judge Grace A. Sease
                       (Agency No. A97 698 087)
             _______________________________________


              Submitted Under Third Circuit LAR 34.1(a)
                        FEBRUARY 8, 2006

Before:    SLOVITER, SMITH AND VANANTWERPEN, Circuit Judges.

                      (Filed February 14, 2006)


                     _______________________

                             OPINION
                                _______________________

PER CURIAM

                                              I.

        Ben Tatu Chirikadzi, a native and citizen of Zimbabwe, entered the United States

in 1997 as a non-immigrant student. In 2004, after being arrested on unrelated charges,

the Bureau of Immigration Control and Enforcement (“BICE”) charged Chirikadzi with

being removable pursuant to 8 U.S.C. § 1227(a)(1)(B) for staying beyond the period

authorized. Chirikadzi conceded his removability. On August 25, 2004, the Immigration

Judge (“IJ”) granted Chirikadzi voluntary departure and ordered that he remain detained

until his departure. See Exhibits to Govt. Response to Habeas Petition, Exh. E.

Chirikadzi filed an appeal to the Board of Immigration Appeals (“BIA”). The BIA

dismissed the appeal, finding that Chirikadzi had waived his right to appeal during the

proceedings before the IJ. See id., Exh. F.

        In March 2005, Chirikadzi filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241 in the District Court for the Middle District of Pennsylvania.

Chirikadzi sought a stay of removal and release from detention. The District Court

granted a stay of removal, and subsequently transferred the matter to this Court as a

petition for review pursuant to the Real ID Act of 2005 1 . In his brief to this Court,

Chirikadzi raises additional claims challenging the finding of removability and seeking



   1
       Pub L. No. 109-13, 119 Stat. 231.

                                              2
political asylum and adjustment of status.

                                              II.

       To the extent Chirikadzi remains in BICE custody and continues to seek release

from detention, such a claim should be presented to the district court in the district in

which he is detained.2 See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005)

(recognizing that the Real ID Act made petitions for review the exclusive means for

judicial review of orders of removal, but did not eliminate district court habeas

jurisdiction over challenges to detention); 28 U.S.C. § 2241.

       As to Chirikadzi’s remaining claims, a court may review a final order of removal

only if the petitioner has exhausted all of the administrative remedies available to him as

of right. 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.

2005). Chirikadzi did not exhaust his administrative remedies. Through counsel,

Chirikadzi waived his right to appeal the IJ’s order to the BIA, and Chirikadzi concedes

he did not present a claim of asylum to the IJ.3 See Petitioner’s document dated

6/16/2005. Furthermore, assuming Chirikadzi applied for adjustment of status, the denial

of such relief is not subject to judicial review. See 8 U.S.C. § 1252(a)(2)(B)(I).



   2
      Chirikazi does not argue his detention claim in his brief to this Court and it appears
he is no longer in custody within the Middle District of Pennsylvania.
   3
      To the extent Chirikadzi alleges that counsel was ineffective for failing to apply for
asylum, Chirikadzi did not adequately present an ineffective assistance of counsel claim
to the BIA. See Gov’t Response Exh. F; Matter of Lozada, 19 I. & N. Dec. 637, 638
(BIA 1988).

                                              3
                                     III.

Accordingly, for the reasons state above we will deny the petition for review.
