Demellov.Prendes

United States District Court, N.D. Texas, Dallas DivisionApr 4, 2005
No. 3:04-CV-2578-M (N.D. Tex. Apr. 4, 2005)

No. 3:04-CV-2578-M.

April 4, 2005


ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


BARBARA LYNN, District Judge

After reviewing the objections to the Findings, Conclusions, and Recommendation (FCR) of the United States Magistrate Judge and conducting a de novo review of those parts of the Findings and Conclusions to which objections have been made, I am of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.

Petitioner objects to the Magistrate Judge's conclusion that the Fifth Circuit Court of Appeals necessarily decided that 8 U.S.C. § 1252(a)(2)(C) divested the court of appeals of jurisdiction over petitioner's petition for review. For the first time, petitioner argues that 8 U.S.C. § 1252(a)(2)(B)(i) precluded the Fifth Circuit from exercising jurisdiction over his petition for review. In addition, he argues that the Fifth Circuit could not have considered § 1252(a)(2)(C) as a jurisdictional bar to his petition for review because that provision is inapplicable to his situation. The Court considers whether these arguments affect the findings and conclusions of the Magistrate Judge and finds no error.

I. RELIANCE UPON § 1252(a)(2)(B)(i)

Petitioner argues that, contrary to the conclusion of the Magistrate Judge, the Fifth Circuit dismissed his petition for review under § 1252(a)(2)(B)(i), rather than § 1252(a)(2)(C).

A. Dismissal on Basis Not Asserted in Petition for Review

The Court initially notes that Petitioner did not assert § 1252(a)(2)(B)(i) as a basis for jurisdiction in his petition for review, or even in his habeas petition. He provides no legal or factual support for the proposition that the Fifth Circuit dismissed his petition for review on a basis which he did not assert therein. Moreover, this proposition appears contrary to the only Fifth Circuit case which appears to have considered the issue, albeit tangentially. In Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004), the Fifth Circuit also granted, without discussion, a motion to dismiss a petition for review for lack of jurisdiction. See id. at 325 n. 3. On appeal of the district court's dismissal, the Fifth Circuit noted that it "cannot be determined whether our order granting the government's motion to dismiss for want of jurisdiction was not based only on the government's apparently valid claim of untimeliness and did not reach the alternative § 1252(a)(2)(C) ground." Id. at 328 n. 6. The Fifth Circuit thus appeared to look only to the two jurisdictional arguments asserted in the briefing on the petition for review to determine potential bases for its prior jurisdictional dismissal.

The Fifth Circuit noted that its order simply stated: "It is ordered that respondent's motion to dismiss petition for review for lack of jurisdiction is granted."

In this case, the Magistrate Judge considered the jurisdictional arguments urged before the court of appeals to determine that § 1252(a)(2)(C) was the only plausible basis for the jurisdictional dismissal of the petition for review. ( See FCR at 12-15.) Petitioner argued to the Fifth Circuit Court of Appeals that neither § 1252(a)(2)(C) nor § 1252(a)(2)(B)(ii) divested the court of appeals of jurisdiction over the petition for review. ( See id. at 12-13.) The government, on the other hand, relied specifically upon § 1252(a)(2)(C) for its argument for review preclusion. ( See id. at 13.) By attributing the dismissal to § 1252(a)(2)(C), the Magistrate Judge merely made the only reasonable inference from the dismissal based upon the information before the court of appeals. No party urged the Fifth Circuit to dismiss the petition for review under § 1252(a)(2)(B)(i). In addition, nothing indicates that the Fifth Circuit applied that provision to dismiss petitioner's petition for review. Petitioner carries the burden to show that jurisdiction is proper over his case. See Santos v. Reno, 228 F.3d 591, 594 (5th Cir. 2000). He has not shown that the Magistrate Judge erred in finding that the Fifth Circuit necessarily dismissed his petition for review pursuant to § 1252(a)(2)(C).

B. Applicability of § 1252(a)(2)(B)(i)

Even assuming arguendo that the Fifth Circuit considered § 1252(a)(2)(B)(i) as a basis for dismissal, the Court further finds petitioner's § 1252(a)(2)(B)(i) argument inconsistent with Fifth Circuit precedent. The Fifth Circuit has specifically held that § 1252(a)(2)(B)(i) "precludes review only of discretionary decisions." See Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003) (addressing statute in context of cancellation of removal under § 1229b); accord Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir. 2004) (addressing statute in context of adjustment of status under § 1255).

In determining that § 1252(a)(2)(B)(ii) provided no basis for the Fifth Circuit's dismissal of petitioner's petition for review, the Magistrate Judge noted that petitioner challenged only non-discretionary matters in his petition for review. ( See FCR at 14 n. 5.) Because petitioner challenged no discretionary decision, the Court finds that § 1252(a)(2)(B)(i) also provided no basis for the dismissal of petitioner's petition for review. Therefore, petitioner's current reliance upon § 1252(a)(2)(B)(i) is misplaced.

II. RELIANCE UPON § 1252(a)(2)(C)

In his final argument, petitioner argues that the court of appeals could not have considered § 1252(a)(2)(C) as a jurisdictional bar to his petition for review because he has not been found removable based upon any sections enumerated in that statute related to criminal aliens. He asserts that the government found him removable solely because he failed to maintain his status as a student, and had he maintained his student status, the government would have been unable to commence removal proceedings. However, because petitioner sought an adjustment of his status, he was subject to removal under 8 U.S.C. § 1227(a)(1)(A). "Any alien who at the time . . . of adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable." Id. When one seeks an adjustment of status under the immigration laws, inadmissibility is synonymous with removability. See Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1209 n. 4 (9th Cir. 2004). An alien who is inadmissible under § 1182(a)(2) is likewise removable for the same reason. Id. Thus, the Fifth Circuit could have considered § 1252(a)(2)(C) as a jurisdictional bar to petitioner's petition for review. See id. at 1209-11 (finding that § 1252(a)(2)(C) barred the Ninth Circuit's review of a petition for review under facts similar to those before the Fifth Circuit on petitioner's petition for review). Further, based upon the arguments presented to the Fifth Circuit (and the arguments presented to this Court), § 1252(a)(2)(C) appears to be the only plausible basis for the dismissal of petitioner's petition for review.

III. CONCLUSION

Because § 1252(a)(2)(B)(i) provides no basis for the jurisdictional dismissal of petitioner's petition for review and because § 1252(a)(2)(C) is the only plausible explanation for that dismissal within the briefing submitted to the Fifth Circuit, this Court agrees with the Magistrate Judge that the Fifth Circuit necessarily based its prior dismissal upon § 1252(a)(2)(C) and thus necessarily found that petitioner had committed a crime covered in § 1182(a)(2), within the meaning of § 1252(a)(2)(C). Petitioner's current reliance upon § 1252(a)(2)(B)(i) provides no reason to conclude that the Fifth Circuit relied upon that provision to bar judicial review of his petition for review. Consequently, petitioner has presented no reason to reject the Findings, Conclusion, and Recommendation of the United States Magistrate Judge. Petitioner has not carried his burden to show that this Court has habeas jurisdiction over his claims.

For all of these reasons, the Court finds the Findings and Conclusions of the Magistrate Judge correct and accepts them as the Findings and Conclusions of the Court. Furthermore, for the reasons stated in the Findings, Conclusions, and Recommendation, the Court GRANTS petitioner's motion to amend (doc. 10). The Court hereby directs the Clerk of Court to file the original amended petition in this action, terminate the current respondents from this action, and substitute Nuria Prendes as respondent. By separate judgment, the Court will dismiss this action for lack of jurisdiction.