United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
matter is before the Court upon Petitioner Erick Vladmir
Tejada's pro se petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2241 (“§
2241”), (Doc. No. 1) and Motion Proceed In Forma
Pauperis (Doc. No. 3).
to the habeas Petition, Petitioner was admitted into the
United States as a lawful permanent resident on September 15,
1997. On March 26, 2010, he was convicted in Mecklenburg
County Superior Court, of cocaine trafficking.
March 31, 2010, according to Petitioner, the Department of
Homeland Security (“DHS”) notified him that his
lawful permanent resident status had been revoked.
See Pet. (Doc. No. 1) at 2 ¶¶ 1-2 (citing
“Removal Proceedings, ” § 240 of the
Immigration and Nationality Act (“INA”); 8 U.S.C.
§ 1229a. Petitioner also alleges a DHS investigation
found that his cocaine trafficking conviction was an
aggravated felony as defined in INA § 101; 8 U.S.C.
§ 1101(a)(43)(B), and that he therefore had violated INA
§ 237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii).
contends that his state trafficking conviction does not meet
the definition of an aggravated felony as defined in §
1101(a)(43)(B) and that amendments to INA § 237
(a)(2)(A)(iii) do not apply to him because they were passed
long after he was granted permanent resident status. He
argues that, as such, he is not subject to deportation and
seeks restoration of his permanent resident status or, in the
alternative, asylum in the United States.
filed the instant § 2241 Petition on December 12, 2018.
According to N.C. Department of Public Safety
(“NCDPS”) records, Petitioner was released on
parole on July 31, 2019. Petitioner has not filed any update in
this Court as to his custody, removal, or deportation status.
STANDARD OF REVIEW
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs
district courts to dismiss habeas petitions when it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. Rule 4, 28 U.S.C.A.
foll. § 2254. Having conducted the required initial
review, the Court finds it does not have jurisdiction to
consider the Petition on the merits.
the limited information Petitioner has provided, it appears
removal proceedings were brought against him beginning in
2010. Petitioner has not stated whether a final order of
removal was entered by an immigration judge, and he has not
indicated whether Immigration and Customs Enforcement
(“ICE”) registered a detainer with NCDPS to take
him into custody when he was released from prison.
Regardless, this Court does not have jurisdiction to consider
any other provision of law . . ., including section 2241 of
Title 28, . . . a petition for review filed with an
appropriate court of appeals . . . shall be the sole and
exclusive means for judicial review of an order of removal
entered or issued under any provision” of the INA. 8
U.S.C. § 1252(a)(5) (2018). This provision
“expressly eliminate[s] district courts' habeas
jurisdiction over removal orders.” Fernandez v.
Keisler, 502 F.3d 337, 346 (4th Cir. 2007).
8 U.S.C. § 1252(g) (2018) states that:
Except as provided in this section and 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, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence ...