United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
R. ADAMS, UNITED STATES DISTRICT JUDGE.
se Petitioner Denis Mbulih filed this Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2241. He is
seeking review of the Board of Immigration Appeal
(“BIA”) decision denying his Motion to Reopen his
Asylum Petition. He is currently awaiting deportation.
Petitioner asserts that his attorney advised him to
voluntarily dismiss his Application for Asylum in favor of
pursuing an I-130 Application with his wife. This caused his
stay of deportation to be lifted and resulted in his
acceptance of a voluntary departure and appeal to avoid
removal proceedings. The BIA then denied his Motion for
Continuance and Motion to Reopen his Asylum Petition. He asks
this Court to review the BIA's denial of his Motions.
is a 32-year-old citizen of Ambazonia, a former British
Protectorate that is now part of the La Republic du Cameroun.
He entered the United States in June 2010 and filed a
Petition for Asylum in November 2010. On the day of the
hearing on his Asylum Petition, his wife's attorney,
Andrew Bramante, advised him to withdraw his Petition so they
could proceed with an I- 130 Petition to Classify an Alien as
a Relative of a United States Citizen. He contends he
followed the advice believing Bramante represented him, and
without realizing the stay of removal would be lifted. He
filed his Motion to Reopen his Asylum Petition on the grounds
of ineffective assistance of counsel but the immigration
judge denied the Motion and gave him the option of voluntary
departure and an appeal, or removal. He chose voluntary
departure so he could appeal the decision to the BIA.
denied his Motion to Reopen on July 26, 2017 and further
denied a request for a continuance of removal proceedings to
await the adjudication of the Petition for Alien Relative.
The BIA first considered the Immigration Judge's denial
of Petitioner's Motion for Continuance. They stated
Petitioner had been in removal proceedings for close to five
years and had been granted six continuances. His wife had
filed three visa petitions. She withdrew the first petition.
The second petition was denied. The immigration concluded
that in light of the denial of the second petition,
Petitioner had not demonstrated the third visa petition was
prima facie approvable. The BIA concluded the Immigration
Judge appropriately denied the continuance. Then the BIA
turned its attention to the request for reopening and
concluded Petitioner did not meet the requirements for
reopening due to ineffective assistance of counsel as set
forth in the Matter of Lozada, 19 I&N Dec. 637,
639 (BIA 1988). It is from this BIA decision that Petitioner
is seeking judicial review.
Court lacks jurisdiction to entertain this Petition.
Jurisdiction to consider a final order of removal, and
matters dependant thereon, is vested exclusively in the
appropriate Court of Appeals. Krninova v. Holder,
No. 2:09-cv-577, 2010 WL 1253972, at *1 (S.D. Ohio March 23,
2010). The Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1252 confers on the
Court of Appeals the exclusive jurisdiction to review a
removal order issued to any alien:
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, 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) of this
section. For purposes of this chapter, in every provision
that limits or eliminates judicial review or jurisdiction to
review, the terms “judicial review” and
“jurisdiction to review” include habeas corpus
review pursuant to section 2241 of Title 28, or any other
habeas corpus provision, sections 1361 and 1651 of such
title, and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C. § 1252(a)(5) (emphasis added). It also
expressly divests District Courts of jurisdiction over any
challenge to a removal order:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and
statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial
review of a final order under this section. Except as
otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28
or any other habeas corpus provision, by section 1361 or 1651
of such title, or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of
law or fact.
8 U.S.C. § 1252(b)(9).
Petitioner is challenging the BIA's decision to deny a
stay of deportation and their refusal to allow him to reopen
his Petition for Asylum. Both of these Motions, either
directly or indirectly, challenge the deportation order. See
Cheng Fan Kwok v. INS, 392 U.S. 206, 216 (1968).
Jurisdiction over this matter exclusively rests in the
“appropriate court of appeals.” 8 U.S.C. §
1252. This Court lacks jurisdiction to entertain the
Petitioner's Motion to Proceed In Forma Pauperis
(Doc. No. 2) is granted. His Petition is denied and this
action is dismissed pursuant to 28 U.S.C. § 2243.
Further, under 28 U.S.C. § 1915(a)(3), this Court