Sokolov v. Mayorkas

Background

Alexey Sokolov filed a petition under 28 U.S.C. § 2241, a federal law allowing a person in custody to challenge the legality of detention. He represented himself and was incarcerated at Fishkill Correctional Facility. He challenged his immigration custody and sought “cancellation of removal” or review of his removal proceedings.

Sokolov’s removal order was issued on August 17, 2015, after a New York State conviction for third-degree criminal sale of a controlled substance. He later received conditional parole for deportation only, effective March 27, 2022, but the opinion states that he remained in state custody. He did not provide facts showing that he had appealed the removal order to the Board of Immigration Appeals.

Detention challenge

The court construed Sokolov’s petition as challenging his future immigration custody. Under federal law, the 90-day period for removing a person who is in state custody generally does not begin until the person is released from state detention or confinement. The court concluded that Sokolov’s conditional parole for deportation did not itself release him from state custody or start that 90-day period.

Because Sokolov remained in state custody, the court held that the government was not yet required to execute the removal order. The court therefore denied his petition insofar as it challenged his detention.

Challenge to the removal order

The court held that the REAL ID Act makes a petition for review filed in the appropriate federal court of appeals the exclusive method for seeking judicial review of a removal order. The district court therefore lacked jurisdiction to review Sokolov’s 2015 removal order and denied that request.

Transfer to the Court of Appeals

The court considered whether to transfer the matter to the U.S. Court of Appeals for the Second Circuit as a petition for review. A petition for review generally must be filed within 30 days after the removal order becomes final. Because Sokolov’s order was issued nearly seven years before he filed this case, and he did not state that he had appealed to the Board of Immigration Appeals, the court concluded that a transferred petition would be untimely. It declined to transfer the matter.

Disposition

The court granted Sokolov’s request to proceed without paying the filing fee for purposes of the order. It denied the § 2241 petition insofar as he challenged his detention, held that it lacked jurisdiction over his challenge to the 2015 removal order, and declined to transfer the matter to the Second Circuit because the proposed petition for review would be untimely. The court also declined to issue a certificate of appealability and denied fee-waiver status for an appeal.