Tene v. United States Department of Justice Executive Office for Immigration…
Tene v. United States Department of Justice Executive Office for Immigration Review
- Laura Swain
- 1:23-cv-09533
- U.S. District Court · Southern District of New York
- 3
In Tene v. United States Department of Justice, Judge Swain transferred Tene’s removal-order challenge to the Second Circuit because the district court lacked jurisdiction.
Sonnia Tene’s challenge to the Board of Immigration Appeals’ decision was transferred from the Southern District of New York to the United States Court of Appeals for the Second Circuit; the district court did not decide the underlying requests for immigration protection.
What happened
In Sonnia Tene v. United States Department of Justice, Executive Office for Immigration Review, Sonnia Tene, representing herself, asked the district court to review the Board of Immigration Appeals’ decision upholding the denial of her requests for asylum, withholding of removal, and protection under the Convention Against Torture.
The court explained that federal district courts do not have the legal power to review removal orders under the REAL ID Act. Such challenges must be filed in the appropriate federal court of appeals. Because Tene filed her petition within 30 days of the Board’s decision, the court found that transferring it was appropriate.
Judge Laura Taylor Swain ordered the case transferred to the United States Court of Appeals for the Second Circuit and closed the district-court case. The court also denied fee-free status for any appeal from the transfer order.
The detailed version
- Tene v. United States Department of Justice Executive Office for Immigration… · No. 1:23-cv-09533
- Laura Swain
- Oct. 31, 2023
Background
Sonnia Tene, representing herself, sought review of the Board of Immigration Appeals’ September 29, 2023 order dismissing her appeal from an Immigration Judge’s denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture. The opinion states that Tene is a native and citizen of Ecuador and that she, her husband, and their two children arrived in the United States in July 2021. She conceded removability through her attorney, and the Immigration Judge later denied her applications. Tene filed her petition in the district court on October 27, 2023.
Jurisdiction and Transfer
The REAL ID Act, including 8 U.S.C. § 1252(a)(5), removes federal district courts’ jurisdiction—their legal authority—to review removal orders. A petition for review is the sole and exclusive method for challenging such an order, and it must be filed in the federal court of appeals for the circuit where the Immigration Judge completed the proceedings. The district court also explained that constitutional claims and questions of law must be presented to the appropriate court of appeals.
A petition for review generally must be filed within 30 days after the final removal order. The Board dismissed Tene’s appeal on September 29, 2023, making October 29, 2023 the filing deadline identified by the court. Because Tene filed in the district court on October 27, 2023, the court concluded that the petition appeared timely for transfer.
Ruling
The court held that it lacked jurisdiction to consider Tene’s challenge to the Board’s decision. It ordered the Clerk of Court to transfer the action to the United States Court of Appeals for the Second Circuit and stated that the district-court case was closed. The court also certified that any appeal from the transfer order would not be taken in good faith and denied fee-free status for that appeal. The court did not decide whether Tene was entitled to asylum, withholding of removal, or protection under the Convention Against Torture.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.