Cruz v. Still

138 F. App'x 951

Opinion

ORDER and MEMORANDUM

**

ORDER

The memorandum disposition filed on May 27, 2005, is hereby withdrawn and the accompanying memorandum disposition shall be filed in its stead.

MEMORANDUM

In their joint letter brief, the parties agree that under the REAL ID Act of 2005,¹ the district court no longer has jurisdiction over Cruz’s habeas corpus petition filed under 28 U.S.C. § 2241.

The parties agree that: (1) under the terms of the REAL ID Act, this court should treat Cruz’s § 2241 petition as a petition for review in the Court of Appeals as if it had been filed under 8 U.S.C. § 1252,² even though the time for filing a petition for review would otherwise have expired;³ (2) that Cruz has raised a nationality claim which presents a genuine issue of material fact; and (3) that this court should transfer this case to the United States District Court for the Northern District of California pursuant to 8 U.S.C. § 1252(b)(5)(B).

Accordingly, we vacate the district court’s dismissal of Cruz’s § 2241 habeas petition, and transfer this case to the District Court for the Northern District of California for disposition of Cruz’s nationality claim pursuant to 8 U.S.C. § 1252(b)(5)(B).

The Clerk shall issue the mandate in due course.

VACATED and TRANSFERRED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . REAL ID Act of 2005, Pub.L. No. 109-13, § 106, 119 Stat. 231, 310-11 (May 11, 2005), codified as amendments and notes to 8 U.S.C. § 1252.

2 . See Pub.L. No. 109-13, § 106(d), 119 Stat. 311 (stating that a petition for review filed under former § 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a (1995) shall be treated as though filed under 8 U.S.C. § 1252 as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009).

3 . See Pub.L. No. 109-13, § 106(c) (stating that the 30-day period in which to file a petition for review in the court of appeals, 8 U.S.C. § 1252(b)(1), shall not apply to 28 U.S.C. § 2241 petitions that were brought in district court and transferred to the court of appeals).