Bentley v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 15, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60814
Summary Calendar
CHRISTOPHER BENTLEY,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of
the Board of Immigration Appeals
No. A38 574 457
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
On June 13, 2005, Christopher Bentley filed in the United
States District Court for the District of New Jersey a 28 U.S.C.
§ 2241 petition challenging the December, 28, 1988, order of an im-
migration judge that he be deported. The court transferred the ac-
tion to this court under the authority of the Real ID Act. See
Real ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, 302-11 (May 11,

-- 1 of 2 --

No. 05-60814
-2-
2005). The Real ID Act instructs district courts to transfer to
the appropriate courts of appeals all § 2241 petitions challenging
final orders of removal, deportation, or exclusion “pending in a
district court on the date of the enactment of the Act,” May 11,
2005. 119 Stat. 231, 311; see Rosales v. Bureau of Immigration and
Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. de-
nied, 126 S. Ct. 1055 (2006). Because Bentley’s § 2241 petition
was not pending in the district court on May 11, 2005, the transfer
of the case to this court under the Real ID Act was improper.
Title 28 U.S.C. § 1631 permits a transfer if this court would
have been able to exercise jurisdiction on the date the case was
filed in the district court, the district court lacked jurisdiction
over the case, and the transfer is in the interest of justice. De-
spite Bentley’s argument that this court has jurisdiction to con-
sider his nationality claim, we lack jurisdiction to determine his
claims, because his petition was not filed within thirty days of a
final order of removal and because he failed to exhaust his admin-
istrative remedies. See 8 U.S.C. § 1252(b)(1); Stone v. INS, 514
U.S. 386, 405 (1995); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir. 2001).
The petition for review is therefore DISMISSED FOR LACK OF
JURISDICTION. The motion for appointment of counsel is DENIED.

-- 2 of 2 --