Judge Jesse Furman
Chen entered, or attempted to enter, the country illegally at least three times. He was stopped on Oct. 30, 1998, while attempting entry on a student visa. Based on his 1996 deportation, Chen was issued an expedited order of removal and removed the next day. Eight years after his 2001 return under a false visa and passport, Chen married a U.S. citizen and sought adjustment of status. Arrested in 2010, the 1998 order was reinstated. An asylum officer found Chen did not show a reasonable fear of prosecution if returned to China. In April 2012, an immigration judge granted Chen withholding of removal. Customs and Border Protection denied the 1998 order’s rescission. Discussing 8 USC §1231(a)(5), Garcia-Villeda v. Mukasey and Miller v. Mukasey, district court partly denied Chen 28 USC §2241 habeas relief. His petition appeared untimely under 8 USC §1252(b)(1). Neither party addressed its timeliness. In an abundance of caution, the court allowed the parties to submit briefs addressing the question of whether Chen’s petition was timely filed, in which case the court would be “required” to transfer the case to the Second Circuit to address the claims, to the extent they were cognizable under §1252(a)(2)(D).
