Hernandez v. United States Department of Justice

422 F. App'x 68

• Court: Court of Appeals for the Second Circuit
• Decided: May 23, 2011
• Docket: 10-772-pr
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Octavio Hernández (“petitioner”), proceeding pro se, appeals from a February 23, 2010 judgment of the District Court dismissing for want of jurisdiction his 28 U.S.C. § 2241 petition challenging his final order of removal from the United States. The dismissal was ordered without prejudice to petitioner’s refiling of a petition for review in our Court. We assume the parties’ familiarity with the remaining factual and procedural history of the case.

Although petitioner’s notice of appeal is not styled as a petition for review, and his appellate brief challenges only the validity of his underlying New York state conviction for sexual abuse and criminal possession of a weapon, we “construe! ] appellate briefs submitted by pro se litigants liberally and read! ] such submissions to raise the strongest arguments they suggest.” Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003). Accordingly, we construe petitioner’s notice of appeal as a petition for review of his final order of removal.

The threshold question on appeal is whether we may exercise subject matter jurisdiction over this petition. Pursuant to 8 U.S.C. § 1252(b)(1), a petition for review must be filed in the Court of Appeals “not later than 30 days after the date of the final order of removal.” Here, the Board of Immigration Appeals entered petitioner’s final order of removal on November 21, 2007, but petitioner did not file his petition for review until March 3, 2010. Even if we were to assume that the date Hernández filed his § 2241 petition in the District Court (January 22, 2010) was the operative date, his petition would still be untimely. Accordingly, we lack jurisdiction over the petition. See Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001) (noting that compliance with the 30-day deadline in 8 U.S.C. § 1252(b)(1) is a “strict jurisdictional prerequisite”).

CONCLUSION

For the reasons stated above, the petition for review is DISMISSED for want of jurisdiction. As we have completed our review, any pending motion for a stay of removal is DENIED as moot.