Dewan Puri v. ALBERTO R. GONZALES, Attorney No. 05-36182 General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DEWAN PURI,
Petitioner-Appellant,
v.
ALBERTO R. GONZALES, Attorney No. 05-36182
General; MICHAEL CHERTOFF, D.C. No.Secretary of Homeland Security;  CV 05-01361 TSZA. NEIL CLARK, DEPARTMENT OF
HOMELAND SECURITY OPINION
IMMIGRATION AND CUSTOMS
ENFORCEMENT Seattle Field Office
Director,
Respondents-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
June 7, 2006—Seattle, Washington
Filed September 28, 2006
Before: David R. Thompson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima
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COUNSEL
Daniel M. Kowalski, Austin, Texas, for the petitioner-
appellant.
Christopher L. Pickrell, Assistant United States Attorney,
Seattle, Washington, for the respondents-appellees.
OPINION
TASHIMA, Circuit Judge:
Dewan Puri (“Puri”), a native and citizen of India, filed a
petition for a writ of habeas corpus (his second) in the district
court, challenging a January 15, 1997, order of deportation,
which ordered Puri deported to India. The district court dis-
missed Puri’s petition for lack of jurisdiction pursuant to the
REAL ID Act and Puri filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),
and we affirm. We review de novo a district court’s decision
to dismiss a habeas corpus petition for lack of subject matter
jurisdiction. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th
Cir. 2002).
I. PROCEDURAL HISTORY
Puri lawfully entered the United States with an immigrant
visa in 1984. He is married to a United States citizen and has
two United States citizen children. Following convictions for
child molestation and indecent liberties,1 Puri was placed in
1Puri pleaded guilty to one count of child molestation in 1990, and one
count of indecent liberties in 1991.
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deportation proceedings before an immigration judge (“IJ”)
and ordered deported to India. After a complicated series of
appeals and procedural rulings, Puri was ultimately granted a
waiver of deportation pursuant to § 212(c) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1182(c) (repealed
1996). The government appealed that decision to the Board of
Immigration Appeals (“BIA”), which reversed the IJ’s grant
of § 212(c) relief and reinstated Puri’s deportation order.
Puri then filed his first habeas petition, challenging his
order of deportation as invalid because it was issued by the
BIA, and not an IJ. See Noriega-Lopez v. Ashcroft, 335 F.3d
874 (9th Cir. 2003) (holding that an IJ may order an alien
deported or removed, but the BIA may not, because “it is the
IJs who are to issue administrative orders of removal in the
first instance”). The government agreed and moved to remand
Puri’s proceedings back to the Immigration Court so that the
IJ could issue the deportation order, as required by Noriega-
Lopez. On remand, the IJ issued a ministerial order for Puri’s
deportation to India. Puri then filed a motion for reconsidera-
tion, raising new evidence of rehabilitation in the form of a
psychological evaluation, which was denied by the IJ. Puri
appealed the denial of reconsideration to the BIA, which
denied relief.
Puri filed the instant second habeas petition on August 4,
2005. In it, he alleges that: (1) the BIA violated his due pro-
cess rights when it reversed the IJ’s grant of § 212(c) relief;
(2) the REAL ID Act violates the Suspension Clause because
it strips the district court of jurisdiction to entertain Puri’s
habeas petition and fails to provide an adequate substitute
through the court of appeals; and, in the alternative, (3) the
district court should have transferred his habeas petition to
this court pursuant to 28 U.S.C. § 1631. On August 8, 2005,
Puri also filed a petition for review of the order of deportation
and a motion for stay of deportation with this court, raising
the same arguments as in his second habeas petition.2 See Puri
v. Gonzales, No. 05-74615 (9th Cir. 2005).
2On February 24, 2006, after full briefing, that petition for review was
dismissed for lack of jurisdiction because it was not filed within the 30-
day period required by INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).
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The government moved to dismiss Puri’s second habeas
petition on the ground that the district court lacked jurisdic-
tion pursuant to the then recently-enacted REAL ID Act. The
district court agreed and dismissed the petition with prejudice
on December 12, 2005. It did not rule on Puri’s transfer
request under § 1631.
II. DISCUSSION
A. The REAL ID Act
[1] The REAL ID Act, Pub. L. No. 109-13, Div. B., 119
Stat. 231 (May 11, 2005), which became effective on May 11,
2005, eliminated district court habeas corpus jurisdiction over
orders of removal and vested jurisdiction to review such
orders exclusively in the courts of appeals. See Martinez-
Rosas v. Gonzales, 424 F.3d 926, 928-29 (9th Cir. 2005). As
amended by § 106(a) of the REAL ID Act, § 1252(a)(5) now
provides:
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of title
28, or any other habeas corpus provision, and sec-
tions 1361 and 1651 of such title, 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, except as provided in subsection (e).
8 U.S.C. § 1252(a)(5).
[2] Thus, when Puri filed the instant habeas petition, on
August 4, 2005 — almost three months after the effective date
of the REAL ID Act — the district court was without jurisdic-
tion to entertain it. In fact, as explained above, after May 11,
2005, the only means for judicial review of Puri’s removal
order was a petition for review in this court. See Medellin-
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Reyes v. Gonzales, 435 F.3d 721, 723-24 (7th Cir. 2006)
(“Collateral proceedings filed on or after May 11, [2005,]
however, will be dismissed outright; the window for belated
judicial review has closed.”). Accordingly, we conclude that
the district court did not err in dismissing Puri’s habeas peti-
tion for lack of jurisdiction.
B. The Suspension Clause
Puri also brings a direct constitutional challenge to the
REAL ID Act, arguing that it violates the Suspension Clause
because it strips the district court of habeas corpus jurisdiction
without providing an adequate substitute through the court of
appeals. The district court adopted the magistrate judge’s
report and recommendation and concluded that it lacked juris-
diction over the Suspension Clause claim because Puri could
“obtain constitutionally adequate review of his claims through
his pending petition for review with the Ninth Circuit Court
of Appeals.” We read the REAL ID Act’s jurisdiction-
stripping provisions more narrowly than did the district court
and conclude that it does not apply to Puri’s Suspension
Clause claim because that claim is not a direct challenge to an
order of removal. Nonetheless, we agree with the district
court’s ultimate conclusion that this claim must fail because
Congress has provided an adequate substitute for habeas pro-
ceedings.
[3] “The scope of habeas review extends to both constitu-
tional and statutory questions.” Magana-Pizano v. INS, 200
F.3d 603, 609 (9th Cir. 1999); see also 28 U.S.C.
§ 2241(c)(3). The Suspension Clause provides that “[t]he
Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2.
The Supreme Court has held, however, that “the substitution
of a collateral remedy which is neither inadequate nor ineffec-
tive to test the legality of a person’s detention does not consti-
tute a suspension of the writ of habeas corpus.” Swain v.
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Pressley, 430 U.S. 372, 381 (1977). The Court has also
instructed that if a substitute remedy provides the same scope
of review as a habeas remedy, it is adequate and effective. Id.
at 381-82; INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)
(“Congress could, without raising any constitutional ques-
tions, provide an adequate substitute through the courts of
appeals.”).
Puri contends that § 106(a)(1)(B)(5) provides an inadequate
substitute because a court of appeals is not allowed to con-
sider new evidence, whereas a district court may order an evi-
dentiary hearing. Specifically, Puri argues that 28 U.S.C.
§ 2243 allows an alien to proffer evidence at an evidentiary
hearing, thus enabling the judge to make factual findings,
while § 106(a)(1)(B)(5) restricts the court to “decide the peti-
tion only on the administrative record on which the order of
removal is based.” See 8 U.S.C. § 1252(b)(4)(A).
[4] Here, Puri contends in his habeas petition that the BIA
violated his due process rights by ignoring its own precedents
and by failing to consider additional evidence regarding his
rehabilitation.3 We hold that the Suspension Clause is not vio-
lated by judicial review by this court of Puri’s constitutional
challenges to his removal order because the Suspension
Clause does not demand an evidentiary hearing before an
Article III court in lieu of judicial review of the administrative
proceeding. The agency is the fact-finding body and this
court’s review of the administrative proceeding is an adequate
substitute for district court habeas corpus jurisdiction. See St.
Cyr, 533 U.S. at 314 n.38.
Moreover, as the First Circuit has held, where, as here, an
underlying case presents only pure questions of law, review
by a court of appeals provides an adequate substitute because
3We note that we need not decide the merits of Puri’s underlying
claims, but need only determine whether an adequate review of such
claims would require additional fact-finding.
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it “encompasses at least the same review and the same relief
[to a petitioner] as were available under prior habeas law.”
Enwonwu v. Gonzales, 438 F.3d 22, 33 (1st Cir. 2006) (citing
St. Cyr, 533 U.S. at 314 n.38).
C. Transfer under § 1631
Finally, Puri argues that the district court erred by not act-
ing on his alternative request that his habeas petition be trans-
ferred to this court “in the interest of justice,” pursuant to 28
U.S.C. § 1631. In dismissing Puri’s habeas petition, the dis-
trict court did not address his alternative transfer request made
under § 1631. Where a district court does not weigh whether
it is in the interest of justice to transfer a petition, but instead
simply dismisses the action for want of jurisdiction, we
review de novo whether the petition should have been trans-
ferred. See Kolek v. Engen, 869 F.2d 1281, 1283-84 (9th Cir.
1989); Harris v. McCauley (In re McCauley), 814 F.2d 1350,
1351-52 (9th Cir. 1987).
[5] Section 1631 provides that, in a civil action, if 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.”4 28 U.S.C. § 1631. An immigration
4The statute provides in its entirety:
Whenever a civil action is filed in a court as defined in section
610 of this title or an appeal, including a petition for review of
administrative action, is noticed for or filed with such a court and
that 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 trans-
ferred.
28 U.S.C. § 1631.
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case is “transferable” when the following three conditions are
met: (1) the transferee court would have been able to exercise
its jurisdiction on the date the action was misfiled; (2) the
transferor court lacks jurisdiction; and (3) the transfer serves
the interest of justice. Chaves Baeta v. Sonchik, 273 F.3d
1261, 1264 (9th Cir. 2001); Rodriguez-Roman v. INS, 98 F.3d
416, 424 (9th Cir. 1996). The only issue here is the third fac-
tor — whether the transfer would be “in the interest of jus-
tice.”
[6] We conclude that this case is not the type of case that
merits a § 1631 transfer in the “interest of justice.” Puri was
aware of the proper procedure for review, as evidenced by the
fact that he also filed a petition for review with this court.
Thus, this case is unlike the usual case in which we have
found a transfer to be in the interest of justice because the liti-
gant was unaware of or confused about the proper forum in
which to file his action. See, e.g., Kolek, 869 F.2d at 1284
(holding that transfer of improperly filed petition to court of
appeals was “in the interests of justice” because petitioner’s
“errant filing was caused in part by his pro se status, lack of
fluency in English, and inability to access legal research mate-
rials in prison”); Paul v. INS, 348 F.3d 43, 47 (2d Cir. 2003)
(concluding that transfer of petition to court of appeals was in
the interest of justice because § 1631 was intended to aid liti-
gants who were confused as to the proper forum for review
and “there [was] no evidence in this case that [petitioner] filed
with the district court in bad faith”).
[7] Here, within a few days of filing his habeas petition,
Puri, as noted earlier, filed a petition for review in this court.
In fact, the magistrate judge expressly noted in her report and
recommendation that Puri had a “pending petition for review”
in this court. That fact was reason enough not to grant a trans-
fer of this action. It is true that that petition for review was
subsequently dismissed. Thus, it appears that the real reason
that Puri requests a § 1631 transfer of this action is so that he
can circumvent our earlier order of dismissal. We do not
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believe, however, that a § 1631 transfer was intended to serve
such a function. We thus conclude that the “interest of jus-
tice” would not be served by transferring Puri’s petition. Fur-
ther, because all of the considerations relevant to this
determination are within our plain view, see In re McCauley,
814 F.2d at 1352 (declining to remand because “it appears
from the record that all the considerations relevant to ‘the
interest of justice’ are within our plain view”), we deny Puri’s
§ 1631 transfer request.
III. CONCLUSION
For the foregoing reasons, the district court’s dismissal of
Puri’s petition for a writ of habeas corpus and its implicit
denial of his § 1631 transfer request are AFFIRMED.
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