United States Court of Appeals
For the First Circuit
No. 05-2128
JUAN CARLOS HERNANDEZ,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
____________________
Before
Boudin, Chief Judge,
Selya and Howard, Circuit Judges.
MEMORANDUM AND ORDER
Entered: September 16, 2005
On May 6, 2005, Juan Carlos Hernandez, a Mariel Cuban,1 filed a
habeas corpus petition in the district court challenging his continued
detention under Clark v. Martinez, 125 S. Ct. 716 (2005). On May 13,
2005, petitioner was released from custody, prompting the respondents to
move to dismiss the habeas petition as moot. On July 18, 2005, without
ruling on the motion to dismiss, the district court transferred the case
to this court, purportedly under the Real ID Act. Because we conclude
that the jurisdiction-stripping and transfer provisions of the Real ID
Act do not apply to this petition, which challenges only the
petitioner's detention rather than his removal (no administrative
removal order has issued), we direct the Clerk to transfer this case
back to the district court.
The Real ID Act deprives the district courts of habeas jurisdiction
1
In 1980, approximately 120,000 Cubans left the Mariel harbor in Cuba
and crossed to the United States by boat.
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 provides
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). As indicated in the
legislative history of the Act, those provisions were not intended to
"preclude habeas review over challenges to detention that are
independent of challenges to removal orders." H.R. Cong. Rep. No. 109-
72, at 2873 (May 3, 2005). Courts that have considered this issue have
reached the same conclusion. See Sissoko v. Rocha, 412 F.3d 1021, 1033
(9th Cir. 2005); Ahmad v. Chertoff, 2005 WL 1799752, at *1-*2 (W.D. Wash.
July 27, 2005); Kanteh v. Ridge, 2005 WL 1719217, at *1, *3 (D. Minn.
June 30, 2005), report and recommendation adopted, 2005 WL 1705526 (D.
Minn. July 19, 2005); Cretu v. Chertoff, 2005 WL 1630541, at *1 (W.D.
La. June 29, 2005); Garcia-Perez v. United States Dep't of Homeland
Sec., 2005 WL 1398100, at *1 (W.D. Tex. June 13, 2005); Morena v.
Gonzáles, 2005 WL 1367414, at *2 & n.2 (M.D. Pa. June 6, 2005).
Accordingly, the Clerk is directed to transfer this case back to
the district court. Respondents' mootness claim should be considered by
the district court in the first instance.
So ordered.
By the Court:
Richard Cushing Donovan, Clerk.
By: __________________________
Chief Deputy Clerk.
[Certified copies to the Hon. Patti B. Saris and Ms. Sarah Thornton,
Clerk, United States District Court for Massachusetts. Copies to Mr.
Barron, Mr. Grady, Mr. Cashman, & Ms. Livers.]