463 F.3d 253 (2nd Cir. 2006), 03-2968, Moreno-Bravo v. Gonzales

Docket Nº:03-2968.
Citation:463 F.3d 253
Party Name:Franklin Antonio MORENO-BRAVO, Plaintiff-Appellant. v. Alberto R. GONZALES, [*] Defendant-Appellee.
Case Date:September 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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463 F.3d 253 (2nd Cir. 2006)

Franklin Antonio MORENO-BRAVO, Plaintiff-Appellant.


Alberto R. GONZALES, [*] Defendant-Appellee.

No. 03-2968.

United States Court of Appeals, Second Circuit.

Sept. 12, 2006

Submitted Sept. 9, 2005.

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Franklin A. Moreno-Bravo, Gadsden, AL, submitted a brief as Pro Se Plaintiff-Appellant.

Marjorie M. Smith, Piermont, NY, submitted a brief for Plaintiff-Appellant.

Elliot M. Schachner, Assistant United States Attorney, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney, Steven Kim, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, of counsel), submitted a brief for Defendant-Appellee.

Before CARDAMONE, McLAUGHLIN, and POOLER, Circuit Judges.

CARDAMONE, Circuit Judge.

Franklin Antonio Moreno-Bravo (petitioner or appellant) appeals from the November 19, 2003 judgment of the United States District Court for the Eastern District of New York (Ross, J.), denying his petition for a writ of habeas corpus. While his appeal was pending in this

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Court, Congress passed the REAL ID Act of 2005 (REAL ID Act, REAL ID, or Act), Pub.L. No. 109-13, 119 Stat. 231, 302, which greatly altered the legal framework for disposing of habeas petitions that, like Moreno-Bravo's, challenged a final order of removal. That act of Congress precipitated the principal issues before us on this appeal. To sort through and bring order to what Congress said and what its purpose was in passing the section of the REAL ID Act that we focus on here is not an endeavor, as the reader will observe, that promises to become a popular pastime.

Two questions presented are first, whether an alien's habeas petition challenging a final order of removal and pending in this Court during the enactment of the REAL ID Act should be converted to a petition for review brought under 8 U.S.C. § 1252; and second, whether the Act compels this Court, as a matter of jurisdiction, to transfer the case to the circuit where the alien's immigration proceedings were held--here, the Fifth Circuit. The first question has already been answered by us in the affirmative in Gittens v. Menifee, 428 F.3d 382 (2d Cir.2005) (per curiam), decided after the present appeal had been submitted. The second question, which is one of first impression in this Circuit, we now answer in the negative; that is, we decline to transfer plaintiff's petition to the Fifth Circuit.


We set out the background. Moreno-Bravo was born in Peru on October 24, 1974 and entered the United States as a lawful permanent resident in 1988 at age 14. He lived in New Jersey and has been residing in the United States ever since his lawful entry. In October 1996 he snatched a gold chain from the neck of one Mercedes Martinez in Elizabeth, New Jersey. He was immediately apprehended by the police, and later on December 11, 1996 pled guilty to robbery in the second degree. The New Jersey Superior Court sentenced him to four and a half years imprisonment.

Because of his conviction, the Immigration and Naturalization Service (INS) initiated removal proceedings in February 2001. The INS charged petitioner as removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which states that a lawful resident "alien who is convicted of an aggravated felony at any time after admission is deportable." Moreno-Bravo's immigration proceedings commenced in Oakdale, Louisiana, where he contended before an immigration judge (IJ) that the term "aggravated felony" as it is used in the Immigration and Nationality Act (INA) does not contemplate deportation of aliens who, like him, were sentenced to less than five years imprisonment for their convictions. The IJ rejected this argument, finding Moreno-Bravo removable as charged and ineligible for discretionary relief by the Attorney General. The Board of Immigration Appeals (BIA) summarily affirmed the IJ's decision and issued a final order of removal on October 23, 2002.

Moreno-Bravo then collaterally attacked this final order by filing a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Eastern District of New York. His claim for habeas relief was based largely on the same grounds as those raised in his immigration proceedings--namely, that his 1996 conviction did not constitute an aggravated felony for purposes of removal because it involved less than five years imprisonment, qualifying him for discretionary relief under a now-repealed section of the INA, § 212(c).

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See generally INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

The district court denied Moreno-Bravo's petition for habeas relief. It found that though petitioner correctly claimed that his criminal conviction for second-degree robbery required an imprisonment term of at least five years to qualify as an aggravated felony under the latest codified version of the INA as of December 1996, see 8 U.S.C. § 1101(a)(43)(F)-(G) (1994), Congress had subsequently redefined and expanded the term to encompass crimes that, like his, involved imprisonment terms of only a year or more, 8 U.S.C. § 1101(a)(43)(F)-(G) (as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, § 321(a), 110 Stat. 3009-546, 3009-627). See Guaylupo-Moya v. Gonzales, 423 F.3d 121, 126-27 (2d Cir.2005). And, relying upon our decision in Kuhali v. Reno, 266 F.3d 93, 110-11 (2d Cir.2001), the district court held that the more recent, expanded definition of aggravated felony applied to petitioner's case and denied his petition for a writ of habeas corpus.

Moreno-Bravo appealed the district court's denial of his habeas petition on December 4, 2003 and obtained a stay of removal pending our review of the district court's decision. While Moreno-Bravo's appeal was pending, and after appellate briefs had been filed by the parties, Congress on May 11, 2005 enacted the REAL ID Act, which transformed the legal framework for disposing of habeas petitions challenging orders of removal.

Section 106 of the Act, the relevant portions of which are set out in an appendix at the end of this opinion, withdrew federal courts' jurisdiction to review final orders of removal through the habeas statute, 28 U.S.C. § 2241, and mandated that "a petition for review filed with the appropriate court of appeals in accordance with [8 U.S.C. § 1252] shall be the sole and exclusive means" by which an alien could challenge such an order. REAL ID Act § 106(a), 119 Stat. at 310. Regarding habeas petitions challenging a final order of removal that were still pending in district court at the time of REAL ID's enactment, § 106(c) instructed district courts to transfer such petitions to the court of appeals in which the petitions could have been properly brought under 8 U.S.C. § 1252, where they were to be converted by the court of appeals to petitions for review brought under that section. Id. § 106(c), 119 Stat. at 311. The Act contained no similar procedural protocol for a habeas petitioner like Moreno-Bravo whose case was pending in the court of appeals, rather than in the district court, at the time of REAL ID's enactment.

Because of the important and novel issue raised by this appeal, we ordered counsel be appointed for petitioner and further briefing on whether, in light of REAL ID Act § 106(c), this appeal should be converted to a petition for review and, if so, whether this case should be transferred to the United States Court of Appeals for the Fifth Circuit, the circuit where Moreno-Bravo's immigration proceedings were completed.

With this background in mind, we turn to the questions before us.


I Conversion of Habeas Petition to a Petition for Review

Although our order requesting supplemental briefing phrased the two questions as if the first (whether REAL ID required the appeal to be converted to a petition for review) was antecedent to the second (whether we are compelled as a matter of jurisdiction to transfer the case

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to the Fifth Circuit), in reality the issues are not analytically extricable. It is not necessarily the case that Moreno-Bravo's habeas appeal may be transferred only if it is first converted to a petition for review pursuant to § 106(c) of REAL ID. Theoretically, in addition to being converted by this Court and then either transferred or retained by us, the appeal also could be transferred by us to the Fifth Circuit before it is formally converted, which would allow that court of appeals "to treat the transferred case as if it had been filed" as a petition for review pursuant to § 106(c); or it could be remanded to the district court and transferred by the lower court to the Fifth Circuit, which again would permit, albeit more circuitously, the other appellate court to convert the appeal. Indeed, the latter option appears to have been contemplated in dicta by another circuit, see Ishak v. Gonzales, 422 F.3d 22, 30 n. 6 (1st Cir.2005), while the former parallels the transfer procedure the Act commands district courts to perform, and thus better conforms, on some level at least, to the text of § 106(c).

Nevertheless, we will, in the circumstances here presented, convert this appeal pursuant to our decision in Gittens, which expressly adopted the reasoning of sister circuits and held that "those habeas petitions that were pending before this [Court] .... on the effective date of the REAL ID Act are properly converted to petitions for review and retained by this [C]ourt." Gittens, 428 F.3d at 385 (quoting Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005)); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir.2006); Rosales v. Bureau of Immigration & Customs...

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