Latu v. Ashcroft

• Decision Date: 12 July 2004
• Docket Number: No. 03-1215.,03-1215.
• Citation: 375 F.3d 1012
• Parties: Isileli Niuakiku LATU, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States of America; Mike Comfort, Acting District Director, Immigration and Naturalization Service, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

375 F.3d 1012

Isileli Niuakiku LATU, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States of America; Mike Comfort, Acting District Director, Immigration and Naturalization Service, Respondents-Appellees.

No. 03-1215.

United States Court of Appeals, Tenth Circuit.

July 12, 2004.

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James Todd Bennett, El Cerrito, CA, for Petitioner-Appellant.

Anthony W. Norwood, Senior Litigation Counsel, and Joshua E. Braunstein, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondents-Appellees.

Before LUCERO, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

Petitioner Isileli Niuakiku Latu appeals from the district court's decision to deny his habeas corpus petition brought under 28 U.S.C. § 2241. We conclude that habeas proceedings do not embrace review of the exercise of the attorney general's discretion in criminal alien cases; that Mr. Latu received due process throughout his removal proceedings; and that 8 U.S.C. § 1182(h) is not facially unconstitutional. We therefore dismiss in part and affirm in part.¹

I. Summary of facts and proceedings

Mr. Latu, a native of Tonga, was admitted to the United States as a permanent resident in 1972, at the age of thirteen. In 1999, he pleaded guilty in a California federal court to two counts of theft and receipt of U.S. mail. Mr. Latu began serving his sentence in California, but was later transferred to Colorado to complete it. In May 1999, the Immigration and Naturalization Service (INS)² issued a Notice to Appear out of one of its California offices, ordering Mr. Latu to show cause why he should not be removed on the basis that he had committed an aggravated felony. But the Notice to Appear failed to specify which section of 8 U.S.C. § 1101(a)(43) defined the felony he committed as an aggravated felony, and did not set a specific date, time, or place for hearing.

In July 2000, the INS commenced removal proceedings by filing the notice with the Immigration Court in Colorado and serving it on Mr. Latu. See 8 C.F.R. § 1003.14(a). In an amended notice, Mr. Latu was given a place to appear before an immigration judge (IJ). He appeared before an IJ on July 31 and was given three weeks to obtain counsel and respond to the charges. At an August 31 hearing, the IJ granted his counsel's request for a second extension of time to answer the charges. Mr. Latu challenged the sufficiency of the original notice at a hearing on September 11, 2000, during which the INS orally informed him that he was charged with violating § 1101(a)(43)(M), an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000. Aplt. App. at 49. At counsel's request, the IJ gave Mr. Latu an additional sixteen days to respond to the charge. Id. at 50. The INS amended the charge to state a violation of § 1101(a)(43)(G) (a theft offense, including receipt of stolen property, for which the term of imprisonment is at least one year), on September 25, 2000. After another hearing in Colorado in October 2000, the IJ concluded that the INS had proved by clear and convincing evidence that Mr. Latu is an aggravated felon subject to removal, and ordered Mr. Latu's removal to Tonga. Aplt.App. at 59-60.

Mr. Latu appealed the removal order to the Bureau of Immigration Appeals (BIA), which dismissed the appeal by order entered May 18, 2001. Id. at 97-100. The BIA also denied Mr. Latu's request for adjustment of status under 8 U.S.C. § 1255, determining that he is statutorily ineligible for such relief under § 1182(h) in light of his aggravated felony conviction. Id. at 99-100. And it held it had no authority to adjudicate the constitutionality of § 1182(h). Id. Mr. Latu did not file a petition for review to challenge either the BIA's final order of removal or its denial of his request for an adjustment of status. Instead, he filed the present petition for writ of habeas corpus in the federal district court in Colorado.

Mr. Latu made the following arguments in his habeas petition: (1) failure to provide notice of date, time, and place of the hearing and of the underlying felony in the Notice to Appear constituted a violation of his Due Process rights; (2) the INS further violated his Due Process rights by commencing the removal proceedings in Denver, rather than in California (where his conviction on the predicate felony was obtained), thus denying him the opportunity to obtain rulings under more favorable Ninth Circuit precedent; (3) the INS failed to prove that the Mr. Latu's conviction was sufficient to support his removal; and (4) § 1182(h) is facially unconstitutional, as it deprives lawful permanent residents who have committed aggravated felonies an opportunity to adjust their status that is available to aliens who do not have permanent-resident status.

With respect to the deficiencies in the Notice to Appear, the district court concluded that Mr. Latu eventually received all the process he was due and that he was not prejudiced by the initial lack of information. With respect to the government's choice of venue for the removal proceedings, the court rejected the government's argument that the decision was a discretionary one outside the court's jurisdiction to review, but found that the choice of venue did not prejudice Mr. Latu. The district court held that Mr. Latu should have raised his argument that the government failed to prove by sufficient evidence that he had been convicted of an aggravated felony in a petition for direct review and that he could not now raise it in a habeas proceeding. Finally, the court rejected Mr. Latu's challenge to the constitutionality of § 1182(h)(2).

Mr. Latu filed a timely appeal of the district court's order on three of the above four issues, dropping his third argument about the sufficiency of the evidence. The government contends that Mr. Latu could have raised all the issues on which he seeks habeas relief in a petition for direct review and that the district court had no jurisdiction to consider the merits of any of Mr. Latu's habeas petition. The government also argues that the court did not have jurisdiction to consider Mr. Latu's challenge to the INS's decision to institute removal proceedings in Colorado, rather than in California, because that is a discretionary decision outside the purview of the court. In the alternative, the government urges affirmance on the merits.

II. Standard of Review

We first consider whether the district court erred in concluding that it had habeas corpus jurisdiction to consider Mr. Latu's challenges to his final deportation order. We then address whether the district court properly denied the petition on the merits. We review both the jurisdictional issue and the district court's denial of habeas corpus de novo. Itaeva v. INS, 314 F.3d 1238, 1240 (10th Cir.2003); Sierra v. INS, 258 F.3d 1213, 1218 (10th Cir.2001).

III. Jurisdiction

Because removal proceedings were commenced after April 1, 1997, the permanent provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. Tapia Garcia v. INS, 237 F.3d 1216, 1218 n. 2 (10th Cir. 2001).

A. Procedural default. We address first the government's claim that Mr. Latu did not exhaust his remedy of seeking an appeal to the court of appeals on direct review, and, therefore, the district court lacked habeas jurisdiction over his case. The government cites Fifth Circuit cases that note, "under [IIRIRA's] transitional rules, habeas jurisdiction lies to consider constitutional and statutory claims that cannot be heard in this court on direct review," Santos v. Reno, 228 F.3d 591, 597 (5th Cir.2000) (quotation omitted), and asserts that this "requirement of exhaustion" is maintained in the permanent rules by 8 U.S.C. § 1252(d). Aplee. Br. at 10-11. But under § 1252(d), "[a] court may review a final order of removal only if — (1) the alien has exhausted all administrative remedies available to the alien as of right...." Appealing a decision of the BIA through a petition for review is not an administrative remedy-it is a judicial remedy. The government has apparently confused the concept of exhaustion of administrative remedies with the concept of procedural bar.

Generally, a habeas petition cannot be used to substitute for direct appeal. Cf. United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (holding that habeas proceedings "are not available to test the legality of matters which should have been raised on direct appeal"); United States v. McBride, 788 F.2d 1429, 1432-33 (10th Cir.1986) (holding district court was without jurisdiction to consider appellant's collateral attack on an administrative suspension order that he had not timely appealed). And as the government points out, the Fifth Circuit limits habeas jurisdiction in immigration cases governed by the transitional rules to constitutional challenges that "cannot be considered on direct review by the court of appeals." Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir.1999). A procedural bar does not apply in Mr. Latu's case, however, because he has no right to direct review of his order of removal.

Congress has barred courts from reviewing final removal orders of aliens who have been convicted of certain aggravated felonies. 8 U.S.C. § 1252(a)(2)(C). Courts of appeals have jurisdiction only "to determine whether the jurisdictional bar applies. We may therefore decide whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute." Tapia Garcia, 237 F.3d at 1220. This authority to review the jurisdictional facts "stems not from Congress' creation of a particular remedy, but rather from the inherent jurisdiction of Article III federal courts to determine their jurisdiction." Kuhali v. Reno, 266 F.3d 93, 100 (2d Cir.2001). Thus, although we retain our inherent authority to determine...