United States District Court, W.D. Louisiana, Alexandria Division
PEREZ-MONTES MAGISTRATE JUDGE.
MEMORANDUM ORDER FOR TRANSFER OF PETITION FOR
DRELL CHIEF DISTRICT JUDGE.
the Court is a Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2241 by Daniela Vargas
("Vargas"). Vargas also filed a "Notice of
Intent to Issue a Final Administrative Removal Order"
and a "Final Removal Order" (Doc. 2-18). Vargas, a
native and citizen of Argentina, has been in the custody of
the United States Department of Homeland Security, U.S.
Immigration and Customs Enforcement ("ICE") since
March 1, 2017. Vargas alleges that she arrived in the United
States under the Visa Waiver Program in 2001, when she was
seven years old, and has twice been granted deferred action
on removal under the Deferred Action for Childhood Arrivals
("DACA") program, in 2012 and 2014. Vargas failed
to reapply timely for deferred action under DACA in 2016.
alleges she reapplied for deferred action in February 2017.
Her DACA application is still pending. Vargas also alleges
that an application for a "U" nonimmigrant
was filed on her behalf in 2014, which is also still pending.
brother and father were arrested by ICE in February 2017.
During their arrest, Vargas told the ICE agents that she had
been granted deferred action. The agents left with
Vargas's father and brother, but later returned with a
search warrant. Vargas claims the agents forcibly entered the
house and conducted a search, but did not arrest her, stating
she was being given a "hall pass."
March 1, 2017, Vargas made statements to the media concerning
the arrests. Shortly after that press conference, Vargas was
arrested and detained by ICE. Vargas alleges that an ICE
official told her she will be summarily removed from the
United States without a hearing, because she waived her right
to contest removal when she was admitted in 2001 pursuant to
the Visa Waiver Program.
filed an "Emergency Motion for Stay of Removal"
(Doc. 2). Vargas also seeks: (1) a release from detention,
' (2) a copy of all of Vargas's immigration
records, ' (3) rescission of the "Final
Administrative Removal Order"; (4) a judgment declaring
Vargas is being detained in violation of the First and Fifth
Amendments to the United States Constitution and the
Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §
1001, et seq.; and (5) an award of costs and
attorney fees. Vargas alleges and shows (Doc. 2-18) that she
is subject to a final administrative order of removal.
11, 2005, the REAL ID Act of 2005 was enacted as part of the
Emergency Supplemental Appropriations Act for Defense, The
Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13,
119 Stat 231. The REAL ID Act deprives the district courts of
habeas jurisdiction to review orders of removal, 8 U.S.C.
§ 1252(a)(5), as added by § 106(a)(1)(B) of the
REAL ID Act, Pub. L. 109-13, and further directs that habeas
cases "challenging a final administrative order of
removal" be transferred to the courts of appeals to be
treated as petitions for judicial review, REAL ID Act, §
106(c). See Hernandez v. Gonzales, 424 F.3d 42,
42-43 (1st Cir. 2005); see also Hernandez-Castillo v.
Moore. 436 F.3d 516, 518 (5th Cir.2006), cert, den., 549
U.S. 810 (2006) ("The Act explicitly forecloses habeas
review of removal orders and provides that a petition for
review is the sole and exclusive means of judicial review for
all removal orders except those issued pursuant to 8 U.S.C.
§ 1225(b)(1)."); Rosales v. Bureau of
Immigration and Customs Enforcement, 426 F.3d 733, 735
(5th Cir. 2005), cert, den., 546 U.S. 1106 (2006)
("[T]he REAL ID Act has divested federal courts of
jurisdiction over § 2241 petitions attacking removal
orders, effective immediately and retroactively.").
as indicated in the legislative history of the REAL ID Act,
those provisions were not intended to "preclude habeas
review over challenges to detention that are independent of
challenges to removal orders." See Hernandez,
424 F.3d at 42-43 (citing H.R. Cong. Rep. No. 109-72, 2873
(May 3, 2005)); see also Baez v. Bureau of Immigration
& Customs Enf t, 150 Fed.Appx. 311, 312 (5th Cir.
2005) ("Section 106(a) of the [REAL ID] Act does not,
however, preclude habeas review of challenges to detention
that are independent of challenges to removal orders".).
Where an action has been improvidently filed in a court
lacking subject matter jurisdiction, want of jurisdiction may
be cured, in the interest of justice, by transfer of the
action to the court in which the action should have been
brought. See 28 U.S.C. § 1631; Berrunr
Garcia v. Comfort. 390 F.3d 1158 (10th Cir.
raises five issues in her habeas petition.
Vargas alleges she is being denied the opportunity to
challenge her continued detention because she allegedly
waived her right to contest her removal when she was admitted
pursuant to the Visa Waiver Program. The right to challenge
detention pending removal is independent of the right to
challenge a final order of removal. See Baez, 150
Fed.Appx. at 312. Although this Court has subject matter
jurisdiction to consider Vargas's pre-removal detention,
this Court does not have jurisdiction to consider
Vargas's challenge to her removal order concerning her
admission pursuant to the Visa Waiver Program. See Kim v.
Obama, 2012 WL 10862140 (W.D. Tex. 2012); Maioa v.
Watson. 2008 WL 2852416, *1 (N.D. Tex. 2008);
Formusoh v. Gonzales. 2007 WL 465305 (N.D. Tex.
2007). That jurisdiction lies with the United States Court of
Appeals for the Fifth Circuit.
Vargas contends she is being denied due process because of
her imminent removal through a summary procedure. Again, this
Court does not have subject matter jurisdiction to consider
any issues pertaining directly to Vargas's removal order.