Flores-Garza v. I.N.S.

• Decision Date: 02 May 2003
• Docket Number: No. 99-60625.,No. 00-41122.,99-60625.,00-41122.
• Parties: Jose Jaime FLORES-GARZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE; John Ashcroft, U.S. Attorney General, Respondents. Jose Jaime Flores Garza, Petitioner-Appellant, v. John Ashcroft, U.S. Attorney General; E.M. Trominski, District Director, Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.3d 797

Jose Jaime FLORES-GARZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE; John Ashcroft, U.S. Attorney General, Respondents.

Jose Jaime Flores Garza, Petitioner-Appellant, v. John Ashcroft, U.S. Attorney General; E.M. Trominski, District Director, Immigration and Naturalization Service, Respondents-Appellees.

No. 99-60625.

No. 00-41122.

United States Court of Appeals, Fifth Circuit.

May 2, 2003.

Charles Roth (argued), Chicago Connections, Chicago, IL, for Petitioner.

Mary Jane Candaux (argued), David V. Bernal, U.S. Dept. of Justice, Washington, DC, for Respondents in both cases.

Thomas Ward Hussey, Director, U.S. Dept. of Justice, Civil Division Imm. Lit., Washington, DC, E.M. Trominski, District Director, U.S. INS, Harlington, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondents in 99-60625.

Lisa M. Putnam, Harlington, TX, for Ashcroft in 00-41122.

Petition for Review of an Order of the Board of Immigration Appeals.

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, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). 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 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 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 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 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 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...