Ramirez-Molina v. Ziglar

Decision Date12 January 2006
Docket NumberNo. 03-50596.,03-50596.
PartiesIsaac RAMIREZ-MOLINA, Petitioner-Appellee, v. James ZIGLAR; et al., Respondents, Grace Winfrey, Interim Field Office Director for Detention and Removal, Bureau of Immigration and Customs Enforcement, Department of Homeland Security, Respondent-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Lynn Anne Coyle, El Paso, TX, Barbara Hines, University of Texas, School of Law, Austin, TX, Javier N. Maldonado (argued), Lawyers Committee for Civil Rights, San Antonio, TX, for Petitioner-Appellee.

Papu Sandhu (argued), Emily Anne Radford, Asst. Director., U.S. Dept. of Justice, Civil Div. Immigration Litigation, Washington, DC, for Respondent-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Isaac Ramirez-Molina challenges the reinstatement of a removal order. Treating this action as a petition for review, we conclude that we are without jurisdiction, so we dismiss the petition.

Ramirez-Molina was removed from the United States in 1999 on the basis of a conviction of driving while intoxicated ("DWI"). Shortly after removal, he reentered the United States in violation of federal law. The Immigration and Naturalization Service ("INS") took him into custody and initiated proceedings to reinstate the removal order.

After the removal, but before the INS sought reinstatement of the order, this court determined that a DWI conviction is not ground for removal under the relevant immigration statute. Citing that decision, Ramirez-Molina brought a habeas corpus action challenging the reinstatement of the removal order on due process grounds. The district court granted habeas relief.

Pursuant to the REAL ID Act, we reverse the district court's finding of habeas jurisdiction and instead consider the challenge to the reinstatement of the removal order as a petition for review. Finding no jurisdiction to entertain the merits of the claim, we dismiss the petition.

I.

Ramirez-Molina first entered the United States in 1984 and became a lawful permanent resident in 1991. In August 1999 he was convicted in state court of DWI, a third-degree felony, and sentenced to ten years' confinement, suspended and probated to five years' community supervision. At that time he had been convicted of DWI on at least three occasions.

On December 6, 1999, the INS1 issued a notice to appear to Ramirez-Molina, asserting that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground that he had been convicted of an "aggravated felony," which is defined by 8 U.S.C. § 1101(a)(43)(F) to include a "crime of violence" with a term of imprisonment of at least one year. A withdrawn opinion of this court had indicated that DWI is a crime of violence. See Camacho-Marroquin v. INS, 188 F.3d 649, 652 (5th Cir. 1999), withdrawn, 222 F.3d 1040 (5th Cir. 2000).

Ramirez-Molina did not contest removability but, instead, on December 22, 1999, submitted a Stipulated Request for Final Order of Removal and Waiver of Hearing in which he conceded that he was "removable as charged," waived the right to a hearing, accepted a written order of removal, and waived appeal of that written order. On December 28, 1999, the immigration judge granted the request for a final order and ordered him removed to El Salvador; he was removed on February 4, 2000.

About two weeks after his removal, Ramirez-Molina reentered the United States in violation of 8 U.S.C. § 1326(a) and was taken into custody by the INS on December 18, 2001. The next day, the INS issued a Notice of Intent/Decision to Reinstate Prior [Removal] Order pursuant to 8 U.S.C. § 1231(a)(5), which authorizes such reinstatement by the Attorney General when an alien illegally reenters after being removed. After a reinstatement, § 1231(a)(5) allows the Attorney General to remove the alien without additional proceedings. Ramirez-Molina was also indicted for illegal reentry under § 1326, but the district court dismissed the indictment.

On May 13, 2002, Ramirez-Molina filed motions with the Executive Office for Immigration Review requesting a stay of removal and asking that the 1999 removal proceedings be reopened and terminated on the basis of United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), in which a panel of this court reached a conclusion opposite to that reached in the withdrawn opinion in Camacho-Marroquin and stated that DWI is not a crime of violence. Accordingly, in this circuit a DWI conviction is no longer an aggravated felony that triggers removability.

Ramirez-Molina contended that Chapa-Garza applies retroactively to his 1999 removal proceedings, rendering those proceedings, and therefore reinstatement of the resulting removal order, invalid. The immigration judge granted a stay of removal on May 14, 2002, without ruling on the motion to reopen and terminate. On May 24, 2002, Ramirez-Molina filed his habeas petition, contending that (1) the 1999 removal order was invalid because, given our subsequent decision in Chapa-Garza, it was based on an erroneous interpretation of the law; (2) the invalidity of the underlying removal order meant that his reentry was lawful and outside the scope of 8 U.S.C. § 1231(a)(5) (thus precluding reinstatement of the prior order); and (3) the reinstatement proceedings were in violation of due process because they were initiated on the basis of an invalid removal order.

Adopting the report of a magistrate judge, the district court conditionally granted habeas relief, holding that pursuant to INS v. St. Cyr, 533 U.S. 289, 311, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), it had jurisdiction under 28 U.S.C. § 2241 to review the removal order in a habeas proceeding. With regard to the merits, the court held that Chapa-Garza applies retroactively to the 1999 removal proceedings, rendering them "fundamentally unfair" because the INS misinterpreted the law. On that basis, the court determined that the 1999 removal order was void ab initio and therefore held that reinstatement of the order was improper. The issuance of the writ was conditioned on the government's failure to vacate both the underlying order of removal and the reinstatement order within ten days.

II.

After the government filed its appeal, Congress on May 11, 2005, enacted the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231, which amends the Immigration and Nationality Act ("INA") by explicitly foreclosing habeas review of removal orders and by providing that a petition for review is the sole and exclusive means of judicial review for all removal orders except those issued pursuant to 8 U.S.C. § 1225(b)(1). See Pub.L. No. 109-13, 119 Stat. 231, 310, § 106(a)(1)(B). More specifically, the REAL ID Act amends 8 U.S.C. § 1252(a)(2)(C) to provide that the wholesale preclusion of judicial review where a removal order is based on, inter alia, the alien's commission of an aggravated felony includes a preclusion of habeas review. See Pub.L. No. 109-13, 119 Stat. 231, 310, § 106(a)(1)(A)(ii). The REAL ID Act thus supplies, in this context, the "clear statement of congressional intent to repeal habeas jurisdiction" that the St. Cyr Court found lacking.

Aside from addressing the clarity with which congressional intent needs to be expressed, the Court in St. Cyr also asserted that if the jurisdictional provisions of the INA did in fact preclude all judicial review in certain circumstances, as they now do as a result of the REAL ID Act, then Suspension Clause concerns would be implicated with regard to "pure questions of law." St. Cyr, 533 U.S. at 300, 121 S.Ct. 2271. The REAL ID Act addresses this consideration in § 1252(a)(2)(D), which provides that

[n]othing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

Thus, although habeas jurisdiction to review removal orders issued on the basis of an alien's conviction of an aggravated felony has been foreclosed by the REAL ID Act, federal courts of appeals now have jurisdiction, subject to other provisions of § 1252 and jurisdictional conditions outside the scope of the INA, to consider, on a petition for review, constitutional claims and questions of law with regard to such orders on a petition for review. Congress specified that the provisions of the REAL ID Act were to take effect immediately and retroactively upon enactment. See Pub.L. No. 109-13, 119 Stat. 231, 311, § 106(b).

As a consequence of this new jurisdictional framework, "[w]e can no longer consider... challenge[s] [to removal orders] in the context of habeas review.... Rather, we must now determine whether [petitioner's] challenge is properly converted into a petition for review under the REAL ID Act and, if so, whether we have jurisdiction to entertain that petition." Rosales v. BICE, 426 F.3d 733, 736 (5th Cir.2005) (per curiam), cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2006 WL 37358, 2006 U.S. LEXIS 619 (U.S. Jan. 9, 2006).2 Although Congress provided that a habeas petition pending before a district court as of the REAL ID Act's effective date was to be transferred to the appropriate court of appeals and converted into a petition for review, see Pub.L. No. 109-13, 119 Stat. 231, 311, § 106(c), it did not specify what was to happen to habeas petitions that were already on appeal as of that effective date.

Following the Third and Ninth Circuits,3 we have decided that "despite Congress's silence on this issue, habeas petitions on appeal as of May 11, 2005, ... are properly converted into petitions for review." Rosales, 426 F.3d at 736. Exercising our undeniable appellate jurisdiction over the ...

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