Fletcher v. US Attorney General, et al.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Omar Terence Fletcher
v. Civil No. 16-cv-315-PB
Loretta E. Lynch, U.S. Attorney General
REPORT AND RECOMMENDATION
Omar Terence Fletcher is being detained by U.S. Immigration
and Customs Enforcement (“ICE”) at the Strafford County
Department of Corrections (“SCDC”). Before the court is
Fletcher’s petition (doc. no. 1) for a writ of habeas corpus
under 28 U.S.C. § 2241, seeking review of an order of the Board
of Immigration Appeals (“BIA”). The matter is before the court
to determine whether the petition is facially valid and may
proceed. See Rule 4 of the Rules Governing Section 2254 Cases
(“§ 2254 Rules”); see also § 2254 Rule 1(b) (authorizing court
to apply § 2254 Rules to § 2241 petitions); LR 4.3(d)(4).
Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition states facially valid claims. The
court may dismiss any petition that appears legally insufficient
on its face. See McFarland v. Scott, 512 U.S. 849, 856 (1994).
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 1 of 7

2
In conducting this review, the court construes Fletcher’s pro se
petition liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Background
The petition and documents attached to the petition assert
the following background facts. Fletcher was born in 1980 in
Jamaica to Jamaican parents. In 1988, Fletcher moved to the
United States with his father, while his mother remained in
Jamaica. Fletcher was admitted to the United States as a lawful
permanent resident at that time. In 1991, Fletcher’s mother
came to the United States, married Fletcher’s father, and then
returned to Jamaica. In October 1992, Fletcher’s father became
a naturalized U.S. citizen. Fletcher’s mother returned to the
United States in 1995 and was naturalized in November 1999.
In 2011, Fletcher pleaded guilty to multiple drug and
firearms charges in the Southern District of Florida and was
sentenced to a term of imprisonment. See Fletcher v. United
States, No. 15-cv-62687-DTKH (S.D. Fla. Apr. 18, 2016) (R. &
R.), ECF No. 12, slip op. at 2. The government provided
Fletcher with notice that it considered Fletcher to be a
deportable alien in 2014. Fletcher filed a motion to terminate
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 2 of 7

3
deportation proceedings in December 2015, asserting that he
derived American citizenship when his father naturalized before
Fletcher turned 18, pursuant to a statute, 8 U.S.C.
§ 1432(a)(3), that was repealed in 2000.1 In January 2016,
following a hearing, an Immigration Judge denied Fletcher’s
motion to terminate deportation proceedings. Fletcher appealed
that order to the BIA, and the BIA dismissed Fletcher’s appeal
in an order dated June 7, 2016. See Doc. No. 1, at 22 (In re
Fletcher, No. A041 456 278 (BIA June 7, 2016)).
Fletcher filed the instant § 2241 petition thereafter. The
clerk’s office docketed the petition on July 12, 2016. An
unsworn certification signed by Fletcher and filed with the
petition states that on July 8, 2016, Fletcher placed the
petition in the custody of SCDC officials to be mailed to the
Office of the U.S. Attorney General.
Discussion
I. Jurisdiction
Fletcher’s motion to terminate deportation proceedings
arises out of an administrative removal action. The Real ID Act,
1See generally Thompson v. Lynch, 808 F.3d 939, 940–41 (1st
Cir. 2015) (discussing repealed statute, 8 U.S.C. § 1432(a)).
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 3 of 7

4
Pub. L. No. 109–13, 119 Stat. 231, 302 (2005), generally
“deprives the district courts of jurisdiction in removal cases.”
Ishak v. Gonzales, 422 F.3d 22, 27–28 (1st Cir. 2005). For
example, 8 U.S.C. § 1252(a)(2)(C) generally strips federal courts
of jurisdiction to review removal orders relating to aliens
deemed deportable because of their conviction of certain
enumerated drug and weapons offenses, except to the extent that
the court of appeals has jurisdiction to consider jurisdictional
issues including whether the petitioner is in fact a citizen.
See Rojas v. U.S. Att’y Gen., 728 F.3d 203, 207 (3d Cir. 2013).
A petitioner’s claims of citizenship raised in a challenge to a
final order of removal are reviewable through the procedures
established by 8 U.S.C. § 1252(b), which places jurisdiction over
such claims in the courts of appeals in the first instance. See
8 U.S.C. § 1252(b)(5)(A)-(C). The jurisdictional limitations
established by the Real ID Act specifically restrict the district
court’s exercise of jurisdiction under 28 U.S.C. § 2241 in cases
such as Fletcher’s. See, e.g., id. § 1252(g) (“Except as
provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of
Title 28, or any other habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have jurisdiction to hear
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 4 of 7

5
any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter.”); id. at § 1252(a)(5)
(“Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, . . . a petition for review filed with
an appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of an
order of removal entered or issued under any provision of this
chapter . . . .”).
District courts do not have jurisdiction to review appeals
of BIA decisions such as Fletcher’s. Accordingly, this court
lacks jurisdiction over Fletcher’s petition.
II. Transfer
Under 28 U.S.C. § 1631, a civil action that is filed in a
court without jurisdiction to consider the matter may be
transferred to a court where the action could have properly been
brought at the time it was filed.1 A petition for review of a
128 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court . . . or an
appeal, including a petition for review of administrative
action, is noticed for or filed with such a court and that
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 5 of 7

6
BIA decision on a final order of removal must be filed in the
court of appeals within thirty days of that decision. See 8
U.S.C. § 1252(b)(1). “The statutorily prescribed time limits for
seeking review of BIA orders are ‘mandatory and jurisdictional.’”
Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016) (citation
omitted). Assuming, without deciding, that the BIA’s dismissal
of Fletcher’s appeal was equivalent to a final order of removal,
the First Circuit lacked jurisdiction over Fletcher’s petition at
the time it was filed because Fletcher filed the § 2241 petition
more than thirty days after the BIA issued its order.
The BIA issued its decision denying Fletcher relief on June
7, 2016. The record indicates that Fletcher placed his § 2241
petition in the SCDC mail system on July 8, 2016. The First
Circuit did not have jurisdiction over Fletcher’s petition on
July 8, 2016. Accordingly, this action is not appropriately
transferred to the First Circuit, pursuant to 28 U.S.C. § 1631,
court finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the
action or appeal could have been brought at the time it was
filed or noticed, and the action or appeal shall proceed as
if it had been filed in or noticed for the court to which
it is transferred on the date upon which it was actually
filed in or noticed for the court from which it is
transferred.
Id.
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 6 of 7

7
and should therefore be dismissed for lack of jurisdiction.
Conclusion
The district judge should dismiss Fletcher’s petition for
lack of jurisdiction and should not transfer the matter to the
First Circuit. Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). Failure to file objections within
the specified time waives the right to appeal the district
court’s order. See Garayalde-Rijos v. Mun. of Carolina, 747
F.3d 15, 21-22 (1st Cir. 2014).
________________________________
Andrea J. Johnstone
United States Magistrate Judge
October 27, 2016
cc: Omar Terence Fletcher, pro se
Case 1:16-cv-00315-PB Document 6 Filed 10/27/16 Page 7 of 7