Meleance v. Board of Immigration Appeals

08-1466-pr

Meleance v. Board of Immigration Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 29th day of January, two thousand ten.

PRESENT:

DENNIS JACOBS,

Chief Judge,

ROBERT D. SACK,

PETER W. HALL,

Circuit Judges.

__________________________________________

Daniel Meleance,

Petitioner-Appellant,

v. 08-1466-pr

Board of Immigration Appeals,

U.S. Department of homeland Security,

Respondent-Appellee.

__________________________________________

FOR APPELLANT: Daniel Meleance, pro se, Rome, N.Y.

FOR APPELLEES: Lev L. Dassin, Acting United States

Attorney for the Southern District

of New York; Natasha Oeltjen, Ross

E. Morrison, Assistant United States

Attorneys, Of Counsel, New York,

N.Y.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

and DECREED, that the judgment of the district court be and

hereby is AFFIRMED and the motion for a stay of removal is

DENIED as moot.

Appellant Daniel Meleance, pro se, appeals from the

judgment of the district court dismissing his 28 U.S.C.

§ 2241 petition for lack of jurisdiction. Meleance also

moves for a stay of removal. We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

We review de novo a district court’s legal conclusion

that it lacked subject matter jurisdiction. See Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). The REAL

ID Act of 2005, enacted May 11, 2005, amended federal law to

provide that “[n]otwithstanding any other provision of law

(statutory or nonstatutory), including section 2241 of title

28, United States Code . . . 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 this

Act[.]” 8 U.S.C. § 1252(a)(5). Since Meleance filed his

§ 2241 petition challenging his order of removal after the

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enactment of the REAL ID Act, the district court therefore

lacked jurisdiction over his § 2241 petition.

The district court properly declined to transfer

Meleance’s petition to this Court. Although the REAL ID Act

directs district courts to transfer § 2241 petitions to the

appropriate Court of Appeals, that provision applies only to

petitions that were pending at the time the REAL ID Act was

enacted. See De Ping Wang v. Dep’t of Homeland Sec., 484

F.3d 615, 616-17 (2d Cir. 2007). Meleance filed his § 2241

petition well afterward.

Although 28 U.S.C. § 1631 permits a district court to

transfer an appeal mistakenly filed in the wrong court, the

district court may do so only if the “appeal could have been

brought at the time it was filed or noticed.” 28 U.S.C.

§ 1631. A petition for review of a Board of Immigration

Appeals decision must be filed within 30 days of the

agency’s decision. 8 U.S.C. § 1252(b)(1). Transfer from

the district court is not permitted pursuant to § 1631 if

the petition is improperly and untimely filed in the

district court, because this Court would lack jurisdiction

to consider it had the petition been filed in this Court at

that time. See De Ping Wang, 484 F.3d at 618. The BIA

denied Meleance’s motion to reopen on September 12, 2007;

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that constituted a final order, so he had until October 12,

2007 to file a timely petition for review. See Malvoisin v.

INS, 268 F.3d 74, 75 (2d Cir. 2001). Meleance did not file

his § 2241 petition until October 30, 2007 at the earliest.

The district court correctly declined to transfer the

untimely petition. See De Ping Wang, 484 F.3d at 618.

To the extent Meleance sought to raise a nationality

claim based on his father’s naturalization, this Court lacks

jurisdiction to consider it because it is untimely. See 8

U.S.C. § 1252(b)(1), 1252(b)(5)(C); Malvoisin, 268 F.3d at

75.

Finally, to the extent Meleance originally sought to

raise an as-applied Suspension Clause challenge to the REAL

ID Act of 2005, he fails to raise such a claim in his brief

and it is therefore waived on appeal. See Norton v. Sam’s

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not

sufficiently argued in the briefs are considered waived and

normally will not be addressed on appeal.”).

For the foregoing reasons, the judgment of the district

court is AFFIRMED and the pending motion for a stay removal

is DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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