Flores-Garza v. Immigration & Naturalization Service

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

May 2, 2003

FOR THE FIFTH CIRCUIT

_____________________ Charles R. Fulbruge III

Clerk

No. 99-60625

_____________________

JOSE JAIME FLORES-GARZA,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE; JOHN ASHCROFT, U. S.

Attorney General,

Respondents.

__________________________________________________________________

Petition for Review of an Order

of the Board of Immigration Appeals

_________________________________________________________________

_____________________

Consolidated with

No. 00-41122

_____________________

JOSE JAIME FLORES GARZA,

Petitioner - Appellant,

versus

JOHN ASHCROFT, U.S. Attorney General; E. M. TROMINSKI, District

Director, Immigration and Naturalization Service,

Respondents - Appellees.

__________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jaime Flores Garza (Flores), a citizen of Mexico and a

permanent resident of the United States, was ordered removed from

the United States by a final order of the Board of Immigration

Appeals (BIA) on account of a 1972 burglary conviction and two

convictions for possession of marijuana in 1991 and 1996. In

response, Flores filed a petition for direct review of his BIA

removal order in this court, raising statutory and constitutional

challenges to the BIA’s determination that Flores is removable as

an aggravated felon based on his 1972 burglary conviction. Flores

also filed in federal district court a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 seeking relief from the

same BIA order on essentially identical grounds. The district

court dismissed Flores’s habeas petition for lack of jurisdiction,

and Flores now appeals the district court’s dismissal. Both

Flores’s petition for direct review and his appeal from the

dismissal of his habeas petition were consolidated in this court by

a previous order.

Because we lack jurisdiction to review a BIA order finding an

alien removable based on a controlled substance offense, we dismiss

Flores’s petition for review. See 8 U.S.C. § 1252(a)(2)(C).

However, we hold that the district court does have jurisdiction to

consider Flores’s petition for federal habeas corpus relief under

28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289 (2001).

2

Accordingly, we vacate the district court’s dismissal and remand

Flores’s habeas case to the district court for further proceedings.

I

The underlying facts in this case – unlike the procedural

arguments – are relatively straightforward. Flores lawfully

entered the United States in February 1972. In September 1972,

Flores pleaded guilty to burglary and received a suspended five-

year sentence. In 1991, Flores pleaded guilty to possession of

marijuana. In 1996, Flores again pleaded guilty to possession of

marijuana.

In December 1998, the Immigration and Naturalization Service

(“INS”) charged Flores with removability as an alien convicted of

controlled substance offenses under 8 U.S.C. § 1227(a)(2)(B)(i).1

In March 1999, the INS filed an additional charge of removability

against Flores, alleging that Flores was also removable based on

his prior conviction for an aggravated felony – i.e., his 1972

burglary conviction – under 8 U.S.C. § 1227(a)(2)(A)(iii).2 The

1

Section 1227(a)(2)(B)(i) provides for the deportation of

“[a]ny alien who at any time after admission has been convicted of

a violation of ... any law or regulation of a State, the United

States, or a foreign country relating to a controlled substance (as

defined in section 802 of Title 21), other than a single offense

involving possession for one's own use of 30 grams or less of

marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i).

2

Section 1227(a)(2)(A)(iii) provides for the removal of an

alien who is convicted of an “aggravated felony.”

8 U.S.C. § 1227(a)(2)(A)(iii). In 1996, Congress amended the

Immigration and Nationality Act’s statutory definition of an

“aggravated felony” to include any “burglary offense” for which the

“term of imprisonment” is “at least one year.”

3

Immigration Judge found Flores to be removable on both charges.

Flores requested relief from removal pursuant to 8 U.S.C. § 1229b,

which allows certain permanent residents to request cancellation of

removal. However, the Immigration Judge denied Flores’s request,

finding Flores ineligible for this relief because of Flores’s

aggravated felony conviction. See 8 U.S.C. § 1229b(a)(3)

(providing that the Attorney General may cancel removal if an

otherwise-qualifying alien “has not been convicted of an aggravated

felony”). In August 1999, the BIA affirmed the decision of the

Immigration Judge and dismissed Flores’s appeal.

In September 1999, Flores filed in this court the instant

petition for direct review of the BIA’s final order of removal

entered against him. Flores argued that, on account of the age of

his burglary conviction and the limitations imposed on the scope of

8 U.S.C. §§ 1227(a)(2)(A)(iii) by the Anti-Drug Abuse Act of 1988,

Pub. L. No. 100-690, § 7344(b), 102 Stat. 4181 (1988) ("ADAA"), he

was not removable as an aggravated felon and, therefore, not

ineligible for relief from removal under 8 U.S.C. § 1229b. Flores

also argued that the charging document in his case did not include

8 U.S.C. § 1101(a)(43)(G). Congress also amended the

Immigration and Nationality Act to define the “term of

imprisonment” to include any “period of incarceration or

confinement ordered by a court of law regardless of any suspension

of the imposition or execution of that imprisonment or sentence in

whole or in part.” 8 U.S.C. § 1101(a)(48)(B). See also Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub.

L. 104-208, §§ 321(a)(3), 322(a)(1)-(2)(A),, 110 Stat. 3009 (1996).

4

an essential element of the offense – namely, the requirement that

Flores have received a “term of imprisonment” of “at least one

year” for his aggravated felony conviction. The government moved

to dismiss Flores’s petition for review for lack of jurisdiction

arguing that, under 8 U.S.C. § 1252(a)(2)(C), this court lacked

jurisdiction to review the final order of removal against Flores –

an alien who is removable by reason of having committed a criminal

offense covered by § 1227(a)(2)(A)(iii) (aggravated felony) and

(B)(i) (controlled substance offense). In response to the

government’s motion, Flores conceded that 8 U.S.C. § 1252(a)(2)(C)

barred this court from considering his petition for review of the

BIA’s final order of removal on account of his uncontested

conviction for a controlled substance offense. Flores further

contended, however, that he could seek relief from the BIA’s final

order of removal via a petition for a writ of habeas corpus under

28 U.S.C. § 2241. In December 1999, a panel of this court granted

the government’s motion and dismissed Flores petition for lack of

jurisdiction without further elaboration.

While the government’s motion to dismiss Flores’s petition for

review was pending, in November 1999, Flores filed a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the

Southern District of Texas. Flores’s habeas petition raised

statutory and constitutional claims and reiterated the arguments

raised in his petition for review – i.e., that, on account of the

age of his burglary conviction, Flores was not removable as an

5

aggravated felon and was not ineligible for relief from removal

under 8 U.S.C. § 1229b. Flores also reiterated his argument that

his charging document did not include an essential element of the

offense. Relying on this court’s decision in Max-George v. Reno,

205 F.3d 194 (5th Cir. 2000), the magistrate judge recommended

dismissal of Flores’s habeas petition for lack of jurisdiction.3

Over Flores’s objections, the district court adopted the

magistrate’s recommendation in August 2000.

In response, Flores filed a timely notice of appeal from the

dismissal of his habeas petition. Flores also filed a motion to

reinstate his petition for direct review of the BIA order. In

October 2000, this court granted Flores’s motion to reinstate his

petition for review, and a new briefing order was subsequently

issued. In November 2001, this court also granted Flores’s

unopposed motion to consolidate his petition for review of the BIA

order and his appeal of the dismissal of his petition for a writ of

habeas corpus. In February 2002, this court denied the

government’s motions to dismiss both Flores’s petition for review

and his appeal of the dismissal of his habeas petition.

II

These consolidated appeals present two jurisdictional

questions: (1) whether this court has jurisdiction to consider the

3

This decision was later overruled by the U.S. Supreme

Court in the light of INS v. St. Cyr, 533 U.S. 289 (2001). See

Max-George v. Ashcroft, 533 U.S. 945 (2001).

6

statutory and constitutional claims presented in Flores’s petition

for direct review of the BIA’s final order of removal; and (2)

whether the district court has jurisdiction over Flores’s § 2241

petition seeking habeas relief from the same BIA order.

With respect to each of these questions the parties have taken

somewhat inverted or counter-intuitive positions. Although Flores

originally petitioned this court for direct review of the BIA’s

final order of removal, Flores now concedes that this court lacks

jurisdiction to consider his petition for direct review because he

has been convicted of a controlled substance offense. See 8

U.S.C. § 1252(a)(2)(C). Flores, therefore, argues that his

petition for direct review must be dismissed for lack of

jurisdiction. Flores further argues, however, that, under INS v.

St. Cyr, the district court does have jurisdiction to consider the

statutory and constitutional claims presented in his petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and that it,

therefore, erred when it dismissed his habeas petition.

On the other hand, the government, which previously moved to

dismiss both the petition for review and the habeas appeal, argues

now that this court retains jurisdiction to determine the scope of

its own jurisdiction and to consider any jurisdictional facts and

issues raised by the petition for review, notwithstanding the

jurisdiction-stripping provisions of § 1252. The government

further argues that the statutory and constitutional claims

presented by Flores’s petition for review are all jurisdictional in

7

nature because the claims relate to the lawful application of the

jurisdiction-stripping provisions of § 1252. The government,

therefore, urges us to address and decide in the petition for

review what it considers to be Flores’s meritless statutory and

constitutional claims and then dismiss those claims and Flores’s

petition for review for lack of jurisdiction. Finally, the

government argues that, even though the district court erroneously

ruled that it did not have jurisdiction over Flores’s habeas

petition, we should affirm the district court’s dismissal of

Flores’s habeas petition because Flores would have obtained

adequate judicial review of his statutory and constitutional claims

via his petition for direct review.4

We consider each jurisdictional question presented in turn.

A. This Court’s Jurisdiction to Consider Flores’s Petition

for Review of the Order of the BIA

In most cases, an alien may seek direct judicial review of a

final order of removal issued by the BIA via a petition for review

filed with this court. See 8 U.S.C. § 1252(a)(1) and (b).

However, this court’s jurisdiction to review a final order of

removal is restricted by § 1252(a)(2), which provides, in part,

that: “[n]otwithstanding any other provision of law, no court shall

4

The government appears to take this position in order to

limit the circumstances under which a § 2241 habeas proceeding may

be appropriate, streamline the alien removal process, and avoid

possible constitutional concerns that could be associated with the

deprivation of judicial review. See Calcano-Martinez v. I.N.S.,

533 U.S. 348, 350 n.2 (2001).

8

have jurisdiction to review any final order of removal against an

alien who is removable by reason of having committed a criminal

offense” covered in various sections and subsections of Title 8,

including 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony) and

(B)(i) (controlled substance offense). See 8 U.S.C.

§ 1252(a)(2)(C).

As we have earlier noted, the government now argues that,

notwithstanding § 1252(a)(2)(C), this court retains jurisdiction to

determine the scope of its own jurisdiction, and, therefore, to

consider any arguments raised in a petition for review challenging

the factual and legal determinations thought to trigger the

jurisdiction-stripping provisions. In this case, the government

argues that Flores’s statutory and constitutional claims all fall

within our jurisdiction to determine our jurisdiction because the

claims challenge the factual determination that Flores is removable

as an aggravated felon and, therefore, by implication, the lawful

application of the jurisdiction-stripping provisions of § 1252.

Specifically, the government argues that this court retains

jurisdiction to determine whether Flores is (1) an alien (2) who is

removable (3) by reason of having committed an aggravated felony or

a controlled substance offense. The government also argues that,

notwithstanding § 1252(a)(2)(C), this court retains jurisdiction to

consider whether § 1252's jurisdiction stripping provisions are

being interpreted and applied in Flores’s case constitutionally and

to consider other “substantial” constitutional claims that Flores

9

might raise. Cf. Calcano-Martinez, 533 U.S. at 350 n.2 (declining

to address an identical concession made by the government in that

case because the concession was not relevant to the Court’s

disposition of the petitions under review). Consequently, the

government urges us to decide the merits of Flores’s statutory and

constitutional claims raised in his petition for review, to find

those claims to be meritless, and to dismiss his petition for

review for lack of jurisdiction on that basis and on the basis of

his controlled substance offenses.

The government is certainly correct as a matter of law when it

states that this court has jurisdiction to review jurisdictional

facts and determine the proper scope of its own jurisdiction. See,

e.g., Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001).

However, with respect to this petition for review, our inquiry into

the scope of our jurisdiction must begin and end with the

undisputed facts that Flores is an alien who is removable by reason

of his two marijuana convictions in 1991 and 1996. These

additional and uncontested convictions for controlled substances

offenses independently trigger § 1252's jurisdiction-stripping

provisions and render consideration of the merits of Flores’s

constitutional and statutory claims, which arise in connection with

Flores’s 1972 burglary, unnecessary and irrelevant – that is, moot

– for the purposes of determining the scope of our jurisdiction to

review this removal order of the BIA. See 8 U.S.C.

§ 1252(a)(2)(C). Even if, as the government argues, Flores’s

10

statutory and constitutional claims regarding his status as a

removable aggravated felon may be questions that fall within our

jurisdiction to determine our jurisdiction, the undisputed facts of

Flores’s removability based on his controlled substance offenses

makes the ultimate answer to any § 1252(a)(2)(C) jurisdictional

inquiry completely clear and final with respect to this particular

petition for review. Although the order of removal cites two

bases for removal – i.e., Flores’s 1991 and 1996 marijuana

convictions and Flores’s 1972 burglary conviction – there is only

one “order” to be reviewed. Once we determine that the order of

removal before us is based independently on Flores’s controlled

substance offenses covered by 8 U.S.C. § 1227(a)(2)(B), the

jurisdiction-stripping provisions of § 1252 clearly apply, and it

does not matter for the purposes of determining the scope of our

jurisdiction under § 1252(a)(2)(C) that the order of removal is

also based on an aggravated felony conviction that Flores argues is

not actually covered by 8 U.S.C. § 1227(a)(2)(A)(iii). We

therefore dismiss Flores’s petition for review without any further

consideration of Flores’s criminal status or removability and

without any consideration of the constitutional claims that the

government urges us to address.5

5

In dicta in Balogun, a panel of this court stated that

the court could consider a petition for review of a final order of

removal to determine whether § 1252's jurisdiction-stripping

provisions are being applied constitutionally and to consider other

“substantial constitutional claims.” See Balogun, 270 F.3d at 278

n.11 (citing Fifth Circuit cases decided prior to INS v. St. Cyr).

11

B. The District Court’s Jurisdiction to Consider Flores’s

Petition for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2241

The appeal of the district court’s dismissal of Flores’s

habeas petition for lack of jurisdiction is another matter

altogether.

We review a district court’s determination of its jurisdiction

de novo. Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000).

In this case, the district court dismissed Flores’s habeas petition

based on this court’s decision in Max-George v. Reno, 205 F.3d 194

(2000). At the time, the district court’s decision to dismiss the

habeas petition was clearly correct according to the law of this

circuit. In Max-George, this court held that § 1252's

Other circuits, however, have concluded that a petitioner may not

raise nonjurisdiction-related constitutional or statutory

challenges in a petition for direct review that is subject to

§ 1252's jurisdiction-stripping provisions. See Bosede v.

Ashcroft, 309 F.3d 441, (7th Cir. 2002)(stating that, after INS v.

St. Cyr, it is clear that an alien may not raise constitutional or

statutory claims that are not related to the jurisdiction-stripping

provisions of § 1252 in a petition for direct review but that such

claims may be raised via a habeas petition). The Supreme Court has

noted, but not decided, this issue about the precise scope of

§ 1252's jurisdiction-stripping provisions and our jurisdiction to

determine our jurisdiction. See Calcano-Martinez, 533 U.S. at 350

n.11.

Because Flores’s status as a controlled substance offender

independently triggers § 1252's jurisdictional bar for this

particular BIA order of removal, we express no view about whether

this court’s authority to determine its own jurisdiction might

allow us consider a petition for review and decide constitutional

claims that are essentially separate and distinct from the question

of the scope of our own jurisdiction.

12

jurisdiction-stripping provisions eliminate § 2241 habeas

jurisdiction for aliens who are removable by reason of having

committed a criminal offense covered by the various sections and

subsections of Title 8 cited in 8 U.S.C. § 1252(a)(2)(C). However,

after the district court dismissed Flores’s § 2241 petition, the

Supreme Court decided INS v. St. Cyr, and, in the light of that

decision, the Court subsequently vacated and remanded our decision

in Max-George. See Max-George v. Ashcroft, 533 U.S. 945 (2001).

In St. Cyr, the Supreme Court expressly held that § 1252's

jurisdiction-stripping provisions do not deprive the federal courts

of jurisdiction to entertain a petition for a writ of habeas

corpus. See St. Cyr, 533 U.S. at 312-13. See also Cano-Miranda v.

Ashcroft, 262 F.3d 477 (5th Cir. 2001)(vacating dismissal of habeas

petition in light of St. Cyr and remanding for further

proceedings). Thus, although the district court correctly followed

the law of this circuit at the time of its decision, after St. Cyr,

we must reverse the district court’s dismissal of Flores’s habeas

petition for lack of jurisdiction.6

6

Flores’s habeas petition challenging his removability as

an aggravated felon does not appear to us to be moot, despite the

fact that Flores clearly is also removable on the independent basis

of his controlled substance offenses. If Flores succeeds in

persuading the district court that habeas relief should be granted

because he is not removable on account of his aggravated felony

conviction – a question about which we express no view at this time

– then Flores would appear to be eligible to apply for

discretionary relief from removal based on his controlled

substances offenses pursuant to 8 U.S.C. § 1229b, noted above,

which allows certain permanent residents to request cancellation of

removal.

13

III

Because there is no dispute that the BIA order before us

correctly found Flores to be an alien removable based on two

controlled substance offenses, we must dismiss Flores’s petition

for review for lack of jurisdiction without further consideration

of his removability based on his 1972 burglary conviction and

without further consideration of the statutory and constitutional

issues, raised by Flores in his petition for review, that are

related to his removability based on that burglary conviction. See

8 U.S.C. § 1252(a)(2)(C). Accordingly, we DISMISS Flores’s

petition for review for lack of jurisdiction. We also VACATE the

district court’s dismissal of Flores’s habeas petition and REMAND

Flores’s habeas case for further proceedings not inconsistent with

this opinion.7

7

Flores also asks this court to declare that he was

eligible to apply for a waiver of removal under former 8 U.S.C.

§ 1182(c), an old provision which provided for discretionary relief

from deportation, and to reverse and remand his habeas petition

with instructions to the district court to order the government to

consider Flores’s request for relief under former § 1182(c).

Although former § 1182(c) was repealed in 1996, the Supreme Court

has held that the discretionary relief under that provision remains

available for certain aliens who would have been eligible for

§ 1182(c) relief at the time of conviction under the law then in

effect. See St. Cyr, 533 U.S. at 326. However, we need not

consider whether Flores was eligible for relief under former

§ 1182(c). Flores did not apply for such a waiver in proceedings

before the INS, and he did not raise the issue of his eligibility

to apply for such a waiver in his habeas petition in the district

court. It is the well established that this court ordinarily does

not consider issues raised by the appellant for the first time on

appeal. See Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999);

United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990).

14

PETITION FOR REVIEW DISMISSED;

JUDGMENT VACATED AND REMANDED.

15