Galaviz-Medina v. Wooten, GALAVIZ-MEDIN

• Citation: 27 F.3d 487
• Decision Date: 20 June 1994
• Docket Number: GALAVIZ-MEDIN,No. 93-1387,P,93-1387
• Parties: Carlosetitioner-Appellant, v. Tom WOOTEN, Warden, FCI, Florence, CO, and U.S. Immigration Review Board of Appeals, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 487

27 F.3d 487

Carlos GALAVIZ-MEDINA, Petitioner-Appellant, v. Tom WOOTEN, Warden, FCI, Florence, CO, and U.S. Immigration Review Board of Appeals, Respondents-Appellees.

No. 93-1387.

United States Court of Appeals Tenth Circuit.

June 20, 1994.

Carlos Galaviz-Medina, pro se.

Frank W. Hunger, Asst. Atty. Gen., Richard M. Evans, Asst. Director, and Francesco Isgro, Atty., Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, DC, for respondents-appellees.

Before LOGAN and SETH, Circuit Judges, and KELLY, District Judge. ^*

SETH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Appellant Galaviz-Medina filed a petition for writ of habeas corpus in district court seeking review of an immigration judge's denial of discretionary relief from deportation. The district court dismissed the petition for lack of jurisdiction. We hold that although Appellant has the right to seek habeas relief in district court, he does not have a cognizable basis for relief in this instance. We therefore dismiss his petition.

Appellant Carlos Galaviz-Medina is a Mexican native who entered this country as a lawful permanent resident on October 13, 1967. He was eight years old when he entered, and has resided in the United States continuously since childhood. He has no immediate family in Mexico. His father and two of his brothers are permanent residents, and he has another brother who is a citizen of the United States. Although he alludes to a daughter who is an American citizen, the record reflects that he is not in contact with either the girl or her mother.

On March 1, 1991, Galaviz-Medina was convicted of conspiracy to possess with intent to distribute over 100 grams of heroin. He was sentenced to eighty-four months' imprisonment on each of several counts, to run concurrently. He is currently serving that sentence at the federal correctional institution in Florence, Colorado. His prior convictions include child fondling in 1977, aggravated battery in 1982, and burglary in 1984.

Because of these convictions, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Appellant. At the hearing, Appellant conceded deportability based on his criminal convictions; however, he applied for discretionary relief from deportation pursuant to 8 U.S.C Sec. 1182(c) (section 212(c) of the Immigration and Nationality Act). That section provides, in part:

"Aliens lawfully admitted for permanent resident [sic] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section [which concerns, in part, exclusion based on conviction of certain crimes].... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years."

Under Sec. 1182(c), a convicted felon may receive a waiver of excludability if, in the discretion of the Board of Immigration Appeals (BIA), the equities warrant it. See Hazzard v. INS, 951 F.2d 435, 438 (1st Cir.). The immigration judge denied the waiver and Appellant appealed to the BIA. The BIA noted in its order that Galaviz-Medina was eligible for a waiver only because he had not yet served five years in prison. Although recognizing certain hardships which deportation would inflict, the BIA affirmed the immigration judge's decision.

Galaviz-Medina did not file an appeal of the BIA's decision with this court. See 8 U.S.C. Sec. 1105a(a)(2) (petition for review must be filed in judicial circuit where the administrative proceedings were conducted); 8 U.S.C. Sec. 1105a(a)(1) (an alien convicted of an aggravated felony must file his petition for review within thirty days after issuance of the BIA's decision). In his objection to the magistrate judge's report and recommendation in the district court in this matter, Galaviz-Medina stated he did not appeal because he was not aware there was further review and the inmate helping him was transferred. Rec.Vol. I, doc. 12 at 2-3. Although he admits he received a copy of the BIA's decision, the decision does not include an explanation of his appellate rights.

On July 19, 1993, Galaviz-Medina filed a habeas corpus petition under 28 U.S.C. Sec. 2241 in the United States District Court for the District of Colorado, arguing that the immigration judge and the BIA abused their discretion by not issuing a waiver of deportability. He requested the district court to issue an order deeming the BIA's decision arbitrary and capricious and an order waiving his deportation. Rec.Vol. I, doc. 4 at 9. In response, the United States Attorney representing the immigration review board filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Galaviz-Medina's failure to appeal through the statutory process prevented him from seeking review. The magistrate judge ultimately recommended that the motion be granted, and the district court adopted that recommendation. In addition to the final order of deportation outstanding against Appellant, the INS filed a detainer with the appropriate federal prison authorities.

On appeal, Appellant raises two issues. First, he alleges that the INS abused its discretion in denying discretionary relief under 8 U.S.C. Sec. 1182(c). Second, he argues that the district court improperly dismissed his petition for writ of habeas corpus for lack of jurisdiction.

I

Appellant's claims raise a difficult question of how to reconcile Sec. 1105a(a), which mandates that judicial review be had only in the court of appeals, with Sec. 1105a(a)(10), which preserves the right of habeas corpus review of orders of deportation.

When the current Immigration and Nationality Act was originally passed in 1961, Congress made clear its desire to limit judicial review of deportation orders to the circuit courts. See United States ex rel. Marcello v. District Director, 634 F.2d 964, 968 (5th Cir.) (exclusive review provision was designed "to eliminate the inordinate delays that Congress perceived by providing for ... review ... in the courts of appeals, eliminating any initial resort to the district courts...."). The codification of that desire is found in 8 U.S.C. Sec. 1105a(a). That section gives the courts of appeals exclusive jurisdiction over "the judicial review of all final orders of deportation ... made against aliens within the United States."

In seeming contradiction to that language, however, is Sec. 1105a(a)(10), which provides that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." Judge O'Conner of the Kansas District Court posed the resulting query this way:

"We must decide whether section 1105a(a): (1) extends to all claims made by persons held in custody under deportation orders; or (2) is available to review only those claims that do not directly challenge 'final orders of deportation.' In other words, the question is whether the habeas corpus jurisdiction established in section 1105a(a) is limited to only those matters that fall outside the scope of the exclusive jurisdiction provision in section 1105a(a)."

El-Youssef v. Meese, 678 F.Supp. 1508, 1513 (D.Kan.). The broad definition which the Supreme Court has given to "final orders of deportation" does not lend clarity to this difficult question. In fact, the circuits are split in their response. Compare Daneshvar v. Chauvin, 644 F.2d 1248, 1250-51 (8th Cir.), with Marcello, 634 F.2d at 968.

Generally, the courts that have addressed this issue have relied heavily on the legislative history of the 1961 Immigration Act. See El-Youssef, 678 F.Supp. at 1514-17 (discussing legislative history); Marcello, 634 F.2d at 967-70. The House Report states:

"The section clearly specifies that the right to habeas corpus is preserved to an alien in custody under a deportation order. In that fashion, it excepts habeas corpus from the language which elsewhere declares that the procedure prescribed for judicial review in circuit courts shall be exclusive. The section in no way disturbs the Habeas Corpus Act in respect to the courts which may issue writs of habeas corpus: aliens are not limited to courts of appeals in seeking habeas corpus."

H.R.Rep. No. 1086, 87th Cong., 1st Sess. 29, reprinted in 1961 U.S.C.C.A.N. 2950, 2973. Likewise, the Supreme Court has stated that its interpretation of the exclusive jurisdiction provision of Sec. 1105a should "in no way [impair] the preservation and availability of habeas corpus relief." Foti v. INS, 375 U.S. 217, 231, 84 S.Ct. 306, 315, 11 L.Ed.2d 281. However, the above quoted language does not give clear guidance on the limits of habeas corpus review.

Specifically, the Fifth Circuit has held that the only requirement for habeas relief is that the petitioner is in the custody of the INS and that the issue challenged need not be limited to a "constitutional core." Marcello, 634 F.2d at 969, 971-72. The court relied on legislative history for this holding, reasoning that because legislative history was silent as to the type of claims that could be brought in habeas and focused on the custody requirement, any claim could be brought in habeas. Id. at 968 (quoting H.R.Rep. No. 565, 87th Cong., 1st Sess. 1) ("The writ of habeas corpus is specifically reserved to an alien held in custody pursuant to an order of deportation."). The Marcello court ruled:

"[The legislative history] seem[s] to indicate that the Congress contemplated...