Berrum-Garcia v. Comfort

• Decision Date: 23 November 2004
• Docket Number: No. 03-1181.,03-1181.
• Parties: Adelfo BERRUM-GARCIA, Petitioner-Appellant, v. Michael COMFORT, District Director, Bureau of Immigration and Customs Enforcement ("BICE"), Denver District; John Ashcroft, Attorney General of the United States of America; Scott Weber, District Director, Bureau of Immigration and Customs Enforcement ("BICE"); Tom Ridge, Secretary of the U.S. Department of Homeland Security; Eduardo Aguirre, Jr., Acting Director of BCIS, DHS; and Michael J. Garcia, Assistant Secretary of BICE, DHS, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

390 F.3d 1158

Adelfo BERRUM-GARCIA, Petitioner-Appellant, v. Michael COMFORT, District Director, Bureau of Immigration and Customs Enforcement ("BICE"), Denver District; John Ashcroft, Attorney General of the United States of America; Scott Weber, District Director, Bureau of Immigration and Customs Enforcement ("BICE"); Tom Ridge, Secretary of the U.S. Department of

Homeland Security; Eduardo Aguirre, Jr., Acting Director of BCIS, DHS; and Michael J. Garcia, Assistant Secretary of BICE, DHS, Respondents-Appellees.

No. 03-1181.

United States Court of Appeals, Tenth Circuit.

November 23, 2004.

Jeffrey Joseph, Denver, CO, for Petitioner-Appellant.

Kevin T. Traskos, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Denver, CO, for Respondents-Appellees.

Before EBEL, ANDERSON and HARTZ,^* Circuit Judges.

EBEL, Circuit Judge.

Petitioner Adelfo Berrum-Garcia ("Petitioner"), a Mexican citizen, attempted to enter the United States illegally in January 1999, using a false name and claiming to be a U.S. citizen. He was intercepted by the Immigration and Naturalization Service, ordered removed to Mexico, and barred from applying for permission to enter the country for five years. Within the month, however, Petitioner illegally reentered the United States, this time without being apprehended. He married a United States citizen in October 2000, and subsequently filed an application for adjustment of immigration status from that of an illegal alien to that of lawful permanent resident. The INS¹ determined that Petitioner had illegally reentered the country after being removed in 1999, denied his requests for permission to reapply for entry and for adjustment of status, and reinstated his 1999 removal order.

Berrum-Garcia, through counsel, promptly filed a petition for habeas corpus in the federal district court for the District of Colorado, claiming that the INS had misapplied the immigration statutes and had denied him due process and equal protection by reinstating his prior removal order in spite of his application for adjustment of status. The district court dismissed his petition after concluding that Petitioner had no statutory or due process right to be considered for adjustment of status and after finding his equal protection claim unsupported by any facts. Petitioner renewed his statutory and due process claims on appeal to this court. We agree with the district court that Petitioner has no statutory or due process rights to the relief he sought from the INS and accordingly AFFIRM the INS's reinstatement of Petitioner's prior removal order.

I. Background

Petitioner Adelfo Berrum-Garcia was apprehended attempting to cross into the United States on January 9, 1999, using the assumed name of Rodolfo Jaimes-Rodriguez. When interviewed in Spanish by an INS officer, Petitioner admitted that he had falsely claimed to be a citizen of the United States in the course of his attempt to enter the country. The INS found Petitioner inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C)(ii), which renders inadmissible any alien who falsely represents himself as a United States citizen. The INS notified Petitioner that he was prohibited from reentering or seeking to reenter the United States for five years, and ordered him removed to Mexico that same day under the summary procedure established under 8 U.S.C. § 1225(b)(1). Approximately three weeks later, however, Petitioner illegally reentered the United States and managed to avoid capture at the border.

Petitioner subsequently married a United States citizen on October 14, 2000. In February 2001, Petitioner's wife filed a Form I-130 "Petition for Alien Relative," which the INS approved on October 9, 2001. The INS approval notice indicated that Petitioner appeared ineligible for adjustment of status to that of a lawful permanent resident. While the I-130 had been pending, however, Petitioner had applied, on August 28, 2001, for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), on the basis of his marriage to a United States citizen.²

The INS scheduled an interview with Petitioner on his adjustment of status application on December 12, 2002. On that day, immediately before Petitioner's interview, his counsel filed a Form I-212 Application for Permission to Reapply for Admission to the United States after Deportation or Removal. At the subsequent interview, the INS informed Petitioner that it had determined he had illegally reentered the United States after being removed on January 9, 1999, and that his prior removal order would be reinstated pursuant to 8 U.S.C. § 1231(a)(5). Petitioner's I-212 and adjustment of status applications were denied that same day on the grounds that § 1231(a)(5) rendered him statutorily ineligible for either form of relief, and Petitioner was taken into custody.

On December 16, 2002 Berrum-Garcia filed a petition for a writ of habeas corpus in the district court, asserting jurisdiction under 28 U.S.C. § 2241. In his petition, he claimed that the INS had unlawfully denied his application for adjustment of status because his application was not barred simply because he had illegally reentered the country. Petitioner also claimed that the INS had violated his due process and equal protection rights by refusing to consider his application for adjustment of status.

The district court dismissed his petition, finding that 8 U.S.C. § 1231(a)(5) did in fact bar Petitioner from seeking adjustment of status under § 1255(i), and that Petitioner had no due process right to have his I-212 or adjustment of status applications considered in spite of § 1231's statutory bar. Petitioner's equal protection claims were dismissed as unsupported by any relevant factual allegations in the pleadings.

In this appeal, Petitioner renews his statutory and due process claims, arguing that his requests for I-212 and adjustment of status relief are not barred by the reinstatement provision codified at 8 U.S.C. § 1231(a)(5), and that he has a due process right to have his I-212 and adjustment of status applications considered fully on their merits. He does not raise any equal protection claims, but instead seeks to challenge the validity of his 1999 removal order, protests that the INS improperly arrested him at his December 2002 interview, and argues that § 1231(a)(5) runs contrary to the value of family unity that motivates the adjustment of status provisions of the immigration statutes.

II. Jurisdiction

We begin by observing that Berrum-Garcia's resort to a habeas corpus petition in the district court was incorrect. In 8 U.S.C. § 1252 Congress has provided an avenue for direct judicial review of INS removal orders in the courts of appeals.³ Although the text of § 1252(a)(1) speaks of judicial review for "order[s] of removal," we have previously held that this provision gives us jurisdiction to hear direct appeals from reinstatement orders entered pursuant to § 1231(a)(5). Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir.2003).

We have also previously observed that the district court lacks jurisdiction over § 2241 habeas petitions raising arguments that could have been, but were not, raised on a direct appeal under § 1252. See Duran-Hernandez, 348 F.3d at 1162 (petitioner who sought habeas review in district court on claims that should have been pursued first on direct appeal had both filed the wrong kind of action and sought relief from the wrong court); Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir.2004) ("[H]abeas proceedings `are not available to test the legality of matters which should have been raised on direct appeal.'") (quoting United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994)).

In Duran-Hernandez, we nevertheless found that the petitioner's error could be cured by relying on the transfer statute, 28 U.S.C. § 1631, which permits a court to transfer a case to a court that would have had jurisdiction on the date when the action was filed, where the transferring court lacks jurisdiction over the case in question, and where such a transfer would be in the interest of justice.⁴ 348 F.3d at 1162. These three conditions are met in this case as well,⁵ and we therefore transfer the case according to the terms of 28 U.S.C. § 1631 and take jurisdiction under 8 U.S.C. § 1252.

III. Discussion

A. Statutory interpretation

In passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Congress effected significant changes in immigration law, several of which were aimed at expediting the process of removing illegal aliens by limiting certain layers of administrative and judicial review. The amendments to section 241 of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1231, provide a streamlined procedure for removing aliens who illegally reenter the United States after having previously been removed or deported.

8 U.S.C. § 1231(a)(5) provides in full:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

(emphasis added).

Petitioner's argument that § 1231(a)(5) poses no bar to his efforts to obtain permission to reapply for entry and adjustment of status is refuted by the plain language of the statute. His claim that § 1231(a)(5) prohibits only relief from deportation or removal — and thus does not prevent him from seeking adjustment of status — is contradicted by the statute's bar on "any relief under this chapter." The chapter in question is Chapter 12 of Title 8 of the United...