Andrade v. Gonzales

• Decision Date: 01 August 2006
• Docket Number: No. 04-30247.,04-30247.
• Citation: 459 F.3d 538
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Adalberto ANDRADE, Petitioner-Appellant, v. Alberto R. GONZALES, U.S. Attorney General, James W. Ziglar; Christine G. Davis; Edward J. McElroy; Bureau of Immigration and Customs Enforcement; United States Department of Justice, Respondents-Appellees.

Page 538

459 F.3d 538

Adalberto ANDRADE, Petitioner-Appellant, v. Alberto R. GONZALES, U.S. Attorney General, James W. Ziglar; Christine G. Davis; Edward J. McElroy; Bureau of Immigration and Customs Enforcement; United States Department of Justice, Respondents-Appellees.

No. 04-30247.

United States Court of Appeals, Fifth Circuit.

August 1, 2006.

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Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Andrade.

Katherine Wharton Vincent, Asst. U.S. Atty. (argued), Sara K. Blackwell, Lafayette, LA, for Respondents-Appellees.

Appeals from the United States District Court for the Western District of Louisiana.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

EDITH H. JONES, Chief Judge:

This court affirmed the district court's denial of Andrade's petition for a writ of habeas corpus. Andrade v. Gonzales, 134 Fed.Appx. 729 (2005). The Supreme Court vacated and remanded for further consideration in light of 8 U.S.C. § 1252(a)(2)(D). Having received supplemental briefing from the parties as to the effect of § 1252(a)(2)(D) upon the instant case, we convert Andrade's habeas petition into a petition for review of the Board of Immigration Appeals ("BIA"), and DENY relief.

I. Background

Andrade is a citizen and national of Cape Verde. He entered the United States as a visitor in 1988, and was accorded lawful permanent resident status on or before June 19, 1998. Between 1995 and 2000, Andrade was convicted of numerous offenses. Andrade's criminal record includes multiple convictions for assault and battery, a conviction for unlawful possession of a firearm, and repeated violations of domestic abuse prevention orders. As a result of such transgressions, the former Immigration and Naturalization Service ("INS") issued a Notice to Appear, and on December 3, 1999, an Immigration Judge ("IJ") ordered Andrade removed. While free on bond pending his appeal to the BIA, Andrade was again convicted of assault and battery and two counts of violating an abuse prevention order.

On May 10, 2001, the BIA remanded Andrade's case to the IJ to determine whether Andrade was entitled to a discretionary adjustment of status. On August 1, 2002, after determining that Andrade's twenty-one convictions outweighed the mitigating interests of his American wife and children, the IJ declined to adjust Andrade's status and again ordered his removal. Andrade again appealed to the BIA, which affirmed the IJ on May 7, 2003. Andrade's subsequent Motion to Reconsider was denied by the BIA on June 30, 2003, and his case became administratively final.

On November 7, 2002, pursuant to 28 U.S.C. § 2241, Andrade filed a petition for a writ of habeas corpus in the Eastern District of New York, alleging that his mandatory detention under 8 U.S.C. § 1226(c) violated his Fifth Amendment due process rights. The district court stayed Andrade's removal pending the resolution of his habeas petition, and then transferred the case to the Western District of Louisiana, which lifted the stay. In Louisiana, Andrade amended his petition to add challenges to his classification as an aggravated felon, as well as to the institution of removal proceedings against him based on crimes that predate his 1998 adjustment of status.

Andrade's petition for review of the BIA decision was dismissed by this court on October 3, 2003; his habeas petition was dismissed by the Louisiana district court on March 2, 2004. Andrade appealed the denial of habeas relief. While his appeal was pending, the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005) became law. This court dismissed Andrade's appeal on June 17, 2005, though it did so without addressing the effects of the REAL ID Act upon his case. The Supreme Court granted certiorari, vacated this court's decision, and remanded for further consideration in light of 8 U.S.C. § 1252(a)(2)(D).

II. Discussion

The REAL ID Act divests the district courts of jurisdiction over the habeas petitions of aliens; instead, REAL ID Act § 106 states that "a petition for review shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of [the INA]." 8 U.S.C. § 1252(a)(5). This court, in Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733 (5th Cir.2005), held that "habeas petitions on appeal as of May 11, 2005 [the effective date of the REAL ID Act] ... are properly converted into petitions for review." Id. at 736. As Andrade's habeas appeal was pending on May 11, 2005, this court erred in not converting his case into a petition for review. In a petition for review, the BIA's determinations as to purely legal questions are reviewed de novo. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). This court continues to lack jurisdiction to review issues of fact pertaining to the discretionary decisions of the BIA. See 8 U.S.C. §§ 1252(a)(2)(B),(C).

Before passage of the REAL ID Act, the criminal alien bar of 8 U.S.C. § 1252(a)(2)(C) prevented the courts from entertaining petitions for review of removal orders predicated upon an aggravated felony or a firearms offense. Under the REAL ID Act, however, this court may now reach the merits of a criminal alien's petition for review if the petition raises constitutional claims or pure questions of law. See 8 U.S.C. § 1252(a)(2)(D).

Andrade raised three issues on appeal, all of which fall within the purview of § 1252(a)(2)(D). First, he argues that his mandatory detention, pursuant to 8 U.S.C. § 1226(c), is unconstitutional. Second, he argues that he was improperly classified as an aggravated felon for the purposes of his immigration proceedings. Finally, Andrade argues that the Department of Homeland Security ("DHS") should be estopped or barred by res judicata from bringing removal proceedings against him on the basis of his pre-1998 convictions, given that the INS was aware of his criminal history and nevertheless granted adjustment of status in 1998. All three claims are without merit, and will be addressed in turn.

A. Detention

Andrade challenges his detention on the basis of 8 U.S.C. § 1226(c), a section of the INA that concerns the detention of aliens pending a final order of removal, arguing that his extended detention while his appeal is pending violates his Fifth Amendment due process rights. The Government counters that such a challenge is moot, as Andrade's case became administratively final in 2003 and is now governed by 8 U.S.C. § 1231. In response, Andrade argues that as a pro se litigant, his petition should be construed liberally, and notes that he argued in his objections to the original magistrate's report and recommendations that if § 1231 applied, his continued detention was unconstitutional per Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

The Government is correct that Andrade's detention is now governed by § 1231. Section 1231 defines the circumstances under which an alien enters the "removal period," after which the Government is required in most situations to remove the alien within ninety days. Under 8 U.S.C. § 1231(a)(1)(B), the removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

It is clear both that Andrade's case became administratively final on June 30, 2003, and that 8 U.S.C. § 1231(a)(1)(B)(iii) does not apply here, as Andrade was detained under an immigration process. Although Andrade's removal order is now being judicially reviewed, 8 U.S.C. § 1231(a)(1)(B)(ii) only applies to those cases in which a court also issued a stay of removal. The district court in the Eastern District of New York initially ordered a stay, but it lacked the jurisdiction to do so, and the district court in the Western District of Louisiana properly lifted the stay. This court affirmed the lifting of the stay. See Andrade v. Ashcroft, No. 03-30899 (5th Cir. Mar. 30, 2004). Thus, the date at which Andrade's case became administratively final is the only one of the three triggering events under 8 U.S.C. § 1231(a)(1)(B) that is applicable here, and Andrade can no longer state a claim for relief under 8 U.S.C. § 1226(c).

The Government errs, however, in suggesting that Andrade raised a Zadvydas challenge for the first time on appeal. We must construe the pleadings of pro se litigants liberally, see Perez v. United States, 312 F.3d 191, 194-95 (5th Cir.2002), and Andrade, who had been detained for more than three years at the time his habeas appeal first reached this court, plainly articulated a constitutional challenge to the length of his detention. Moreover, Andrade did raise Zadvydas and § 1231 in his objections to the recommendations of the magistrate judge, so the fact that § 1226(c) does not govern Andrade's detention does not make his claim moot.

Nevertheless, Andrade's ultimate constitutional claim must fail, as his case is distinguishable from Zadvydas. Zadvydas concerned civil confinement that was "not limited, but potentially permanent." Zadvydas, 533 U.S. at 691, 121 S.Ct. at 2499. There, the Government had thrice failed to secure the transfer of an alien subject to a final order of removal, and could offer no promise of future success, as all the nations to which the alien had ties had refused his admission on the ground that he was not a citizen. Id. Zadvydas thus created a "6-month presumption" of the validity of detention under § 1231, after which an alien could attack the reasonableness of his continued detention. The Court's decision creates no specific limits on detention, however, as...