Opinion
EP-01-CA-352-DB
March 14, 2003
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Julian Ricardo Goitia Campos's "Original Petition for Writ of Habeas Corpus" ("Writ Petition"), pursuant to 28 U.S.C. § 2241, filed in the above-captioned cause on October 1, 2001. Respondent filed a "Motion to Dismiss Petition for Writ of Habeas Corpus for Lack of Subject Matter Jurisdiction and, in the Alternative, for Failure to State a Claim on Which Relief Can be Granted" ("Motion to Dismiss") on January 9, 2002. After due consideration, the Court is of the opinion that Respondent's Motion to Dismiss should be granted and that Petitioner's Writ Petition should be dismissed.
BACKGROUND
Petitioner is a native and citizen of Mexico who entered the United States without inspection in 1978. Petitioner is married to a United States citizen and has four children who are also United States citizens. In his Writ Petition, Petitioner states that he applied to the Immigration and Naturalization Service ("INS") for adjustment of status but was denied. On July 28, 1995, the INS served Petitioner with a Notice to Appear, charging him under former Immigration and Nationality Act ("INA") § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B), as a deportable alien who entered the United States without inspection. On February 14, 1996, an immigration judge ("IJ") found Petitioner deportable and granted him voluntary departure in lieu of deportation. The order by the IJ stated that if Petitioner failed to depart voluntarily, he would be deported as an alien who entered without inspection. Prior to his departure, Petitioner filed a motion with the INS to reopen and terminate his deportation case so that he could apply for adjustment of status as the spouse of a United States citizen. On March 11, 1997, an IJ granted Petitioner's motion. Petitioner's application for adjustment of status was denied by the INS on August 27, 1998. The INS concluded that Petitioner was inadmissible under INA § 212(a)(2)(B) because he had sustained multiple criminal convictions for which he received aggregate sentences of five years or more. Thus, Petitioner has never attained lawful immigration status in the United States. On August 28, 1998, the INS placed Petitioner in removal proceedings charging him with being removable as an alien who entered the United States without inspection and as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for driving while intoxicated. Apparently, an IJ then ordered Petitioner removed from the United States. Petitioner did not appeal to the Board of Immigration Appeals ("BIA"). Petitioner was removed to Mexico on October 6, 1998.
According to Respondent, Petitioner entered the United States without inspection in 1992, not in 1978.
Petitioner's criminal history reveals that he has been convicted of at least seven counts of Driving While Intoxicated and one count of Robbery.
The date of the IJ's order is unclear from the pleadings.
On May 15, 1999, Petitioner was found in the United States by the United States Border Patrol. He was subsequently charged under 8 U.S.C. § 1326 for having reentered the United States without the permission of the Attorney General after having been previously removed as an aggravated felon. Petitioner pled guilty to that offense and, on January 7, 2000, he was sentenced to a 46-month term of imprisonment. The sentence was later reduced, and on October 1, 2001, Petitioner was transferred to the custody of the INS.
On May 31, 1999, while Petitioner was serving his sentence, the INS initiated reinstatement proceedings under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Pursuant to INA § 241(a)(5),
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.8 U.S.C.A. § 1231(a)(5) (West 1999). Petitioner did not appeal the reinstatement decision to the BIA nor did he file a petition for review with the Fifth Circuit Court of Appeals. Petitioner, instead, filed the instant Writ Petition on October 1, 2001, wherein he (1) challenges the reinstatement decision; (2) claims that his due process rights were violated because the INS has not provided him with a reinstatement hearing; and (3) contends that the underlying order of deportation is unlawful and should be set aside. The instant Motion to Dismiss followed.
DISCUSSION
In its Motion to Dismiss, Respondent contends that this Court lacks habeas corpus jurisdiction to review the lawfulness of the reinstatement order and, thus, that Petitioner's first and second claims should be dismissed. The Court agrees.
Under INA § 242, 8 U.S.C. § 1252, the courts of appeals have jurisdiction to review the Attorney General's decision to reinstate a removal order. Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (reasoning that INA § 242(a) grants the Fifth Circuit the authority to review the lawfulness of reinstatement orders pursuant to the provisions of INA § 241(a)(5)). Here, Petitioner challenges the decision to reinstate his prior removal order and argues that he should have been afforded a reinstatement hearing. Thus, the appropriate forum to raise these challenges lies in the Fifth Circuit Court of Appeals, not in this Court on habeas review. Petitioner is barred from challenging his removal order in the district court on habeas review if direct review with the court of appeals is available through INA § 242, 8 U.S.C. § 1252. See Flores-Miramontes v. INS, 212 F.3d 1133, 1143 (9th Cir. 2000). The Court is of the opinion, therefore, that Petitioner's first and second claims should be dismissed for lack of jurisdiction.
The Court is also without jurisdiction to review Petitioner's third claim that his underlying deportation order is unlawful, arguing that it is based on an erroneous interpretation of the law. Petitioner failed to exhaust his administrative remedies before filing his Writ Petition and, therefore, the Court lacks jurisdiction to entertain his claim. It is well settled that parties must exhaust all prescribed administrative remedies before seeking relief from the federal courts. McCarthy v. Madigan, 503 U.S. 140, 145 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992). The Fifth Circuit has held that an alien must simply raise an issue on appeal at the agency level to exhaust administrative remedies. See Goonsuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001) (where alien presented to the BIA the issue raised in his habeas corpus petition, alien exhausted his administrative remedies as to that issue). Here, a review of Petitioner's record reveals that Petitioner failed to complete the administrative review process before seeking habeas relief from this Court.
On August 28, 1998, an IJ ordered Petitioner removed as an alien who entered the United States without inspection and who had been convicted of an aggravated felony. Petitioner failed to appeal the removal order to the BIA and was subsequently removed to Mexico on October 6, 1998. Without appealing to the BIA, Petitioner failed to exhaust his administrative remedies and cannot now request habeas review of his removal order. Thus, the Court is of the opinion that Petitioner's third claim challenging the validity of the underlying removal order should also be dismissed for lack of jurisdiction.
The Court notes that, even if the underlying removal order was deemed invalid because it was based on an erroneous interpretation of the law, the INS is likely to remove Petitioner under other provisions of the immigration statutes given that he has never attained lawful immigration status in the United States.
For the foregoing reasons, the Court finds that Respondent's Motion to Dismiss should be granted and that Petitioner's Petition for Writ of Habeas Corpus should be dismissed.
Accordingly, IT IS HEREBY ORDERED that Respondent Luis Garcia's "Motion to Dismiss Petition for Writ of Habeas Corpus for Lack of Subject Matter Jurisdiction and, in the Alternative, For Failure to State a Claim on Which Relief Can be Granted" is GRANTED.
IT IS FURTHER ORDERED that Petitioner Julian Ricardo Goitia Campos's "Original Petition for Writ of Habeas Corpus" is DISMISSED.
IT IS FINALLY ORDERED that the Court's October 9, 2001, Order staying Petitioner's removal is VACATED.