Xiu Yan Chen v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3101
X IU Y AN C HEN ,
Petitioner,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
S UBMITTED J ANUARY 18, 2006—D ECIDED J ANUARY 30, 2006
____________
Before E ASTERBROOK , E VANS , and S YKES , Circuit Judges.
P ER C URIAM . An immigration judge ordered Xiu Yan
Chen removed to China. On April 25, 2005, the Board of
Immigration Appeals affirmed. The alien did not file a
petition for review under 8 U.S.C. §1252, a step that had to
be taken within 30 days. 8 U.S.C. §1252(b)(1). Having let
that time pass, she filed a petition for a writ of habeas
corpus in the United States District Court for the Eastern
District of New York, where she is in custody awaiting
removal. District Judge Dearie has transferred her petition
to us, relying on the Real ID Act of 2005. Our Clerk dock-
eted it as a petition to review the Board’s order; the Attor-
ney General asks us to dismiss the petition as untimely. See
Stone v. INS, 514 U.S. 386 (1995).

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2 No. 05-3101
Section 106(a) of the new law, 119 Stat. 231, 310-11,
amends several provisions of the United States Code to
foreclose the use of 28 U.S.C. §2241 to obtain review of
removal orders and their implementation. Section 106(c) is
a transition rule:
If an alien’s case, brought under section 2241 of
title 28, United States Code, and challenging a final
administrative order of removal, deportation, or
exclusion, is pending in a district court on the date
of the enactment of this division, then the district
court shall transfer the case (or the part of the case
that challenges the order of removal, deportation,
or exclusion) to the court of appeals for the circuit
in which a petition for review could have been
properly filed under section 242(b)(2) of the Immi-
gration and Nationality Act (8 U.S.C. 1252), as
amended by this section, or under section
309(c)(4)(D) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C.
1101 note). The court of appeals shall treat the
transferred case as if it had been filed pursuant to
a petition for review under such section 242, except
that subsection (b)(1) of such section shall not
apply.
Section 106(c) is the provision that Judge Dearie invoked in
support of the transfer. But §106(c) applies only to a
petition that “is pending in a district court on the date of
the enactment of this division”—May 11, 2005. A petition
under §2241 filed in a district court after that date (as this
petition was) must be dismissed; it can be neither enter-
tained nor transferred. See 8 U.S.C. §1252(a)(5) (as
amended by the Real ID Act).
What should we do with a petition transferred in error?
This court is the right venue for a petition (the removal
hearing occurred in Chicago), but we lack authority to grant

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No. 05-3101 3
relief. The Real ID Act allows otherwise-untimely review by
a court of appeals of a petition for habeas corpus that was
pending in a district court on May 11, but “[c]ollateral
proceedings filed on or after May 11 . . . [must] be dismissed
outright; the window for belated judicial review has closed.”
Medellin-Reyes v. Gonzales, No. 05-3031 (7th Cir. Jan. 24,
2006), slip op. 5.
We were tempted to transfer this matter right back to the
Eastern District of New York, which then would dismiss the
petition for lack of jurisdiction; if the alien should think
that decision erroneous, she could appeal to the second
circuit. But that would set up the possibility of a re-transfer
if our colleagues on the east coast view the matter other-
wise. That’s why the Supreme Court said in Christianson v.
Colt Industries Operating Corp., 486 U.S. 800 (1988), that
one transfer per case is enough, except in extraordinary
circumstances. If the transfer is a blunder, still the trans-
feree court should resolve matters as best it can. What’s
more, the only statute authorizing us to transfer a proceed-
ing is 28 U.S.C. §1631, which says that a suit or appeal filed
in the wrong court may be sent “to any other such court in
which the action or appeal could have been brought at the
time it was filed or noticed”. There is no such court. By
June 29, the Real ID Act had excluded immigration matters
from the statute that until May 11 had permitted collateral
proceedings to be filed in district courts. See INS v. St. Cyr,
533 U.S. 289, 298-314 (2001). And by then the time to seek
review in a court of appeals also had expired. So
no potential transferee court would have jurisdiction to
entertain this petition for relief.
The case came here by mistake, but it is here and we
must do something. The only step the law allows is dis-
missal, for the petition is untimely. The petition for review
therefore is dismissed.

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4 No. 05-3101
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-06

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