Madriz-Alvarado v. Ashcroft

Decision Date27 August 2004
Docket NumberNo. 03-20126.,03-20126.
PartiesMario Roberto MADRIZ-ALVARADO, Petitioner-Appellant, v. John ASHCROFT, Attorney General of the United States, Roger D. Piper, INS Acting District Director, Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Lisa S. Brodyaga (argued), Refugio de Rio Grande, San Benito, TX, J. Jesus Rios, Houston, TX, for Petitioner-Appellant.

Ernesto Horacio Molina, Jr. (argued), U.S. Dept of Justice, Office of Immigration Litigation, Washington, DC, Howard E. Rose, Asst. U.S. Atty., Houston, TX, for Respondents-Appellees.

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

Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Mario Roberto Madriz-Alvarado, an alien, appeals the denial of his habeas corpus petition under 28 U.S.C. § 2241 seeking to challenge his removal order. We affirm.

Facts and Proceedings Below

Mario Roberto Madriz-Alvarado (Madriz) is a native and citizen of Guatemala who entered the United States without inspection on September 26, 1986, when he was eight years old. On November 14, 1995, Madriz pleaded guilty in a Texas court to possession, on or about October 27, 1995, of less than one gram of lysergic acid diethylamide (LSD) and was granted a deferred adjudication under Texas Code of Criminal Procedure article 42.12 section 5, being placed on probation for five years and fined $500.1 On December 8, 1998 the Immigration and Naturalization Service (INS) charged Madriz with removability, because he was unlawfully present in the United States and because he had been convicted for possession of a controlled substance, under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(2)(A)(i)(II), respectively.2 At his removal hearing, Madriz conceded his removability as an alien present without admission or parole, but contested the charge that his state court controlled substance deferred adjudication was a conviction for immigration purposes. Madriz, informing the Immigration Judge (IJ) that he had an approved visa petition with a current priority date, submitted an application for adjustment of status to that of lawful permanent resident under 8 U.S.C. § 1255(i) as the child of a United States citizen. On May 5, 1999, the IJ sustained both charges of removability, held that by reason of his controlled substance offense Madriz was ineligible for waiver of inadmissibility under 8 U.S.C. § 1255(h) and hence was ineligible for adjustment of status under 8 U.S.C. § 1255(i), and ordered that Madriz be deported to Guatemala. The IJ's decision was upheld by the Board of Immigration Appeals (BIA) in a decision dated December 27, 1999. The BIA specifically rejected Madriz's argument that his controlled substance deferred adjudication was not a conviction for immigration purposes.

On January 27, 2000, Madriz filed with this court a petition for review of the December 27, 1999 order of the BIA. The government moved to dismiss the petition for want of jurisdiction, arguing first that the petition was not timely filed and, alternatively, that pursuant to 8 U.S.C. § 1252(a)(2)(C) this court's jurisdiction over the petition for review was precluded because Madriz was "removable by reason of having committed a criminal offense covered in section 1182(a)(2)." On May 8, 2000, this court granted the government's motion in an order without any statement of reasons or identification of grounds.3

On August 29, 2000, Madriz filed an application for writ of habeas corpus under section 2241 in the United States District Court for the Southern District of Texas, challenging his removal order, arguing that his Texas deferred adjudication was not a conviction because if he had been prosecuted in federal court 18 U.S.C. § 3607 would have precluded so considering it and because in any event it was not final. The petition was dismissed for lack of jurisdiction on November 3, 2000 by Judge Hoyt, who ruled that "the Court lacks jurisdiction because a proper forum exists for petitioner to raise all issues concerning his deportation. That avenue or forum is the court of appeals." Madriz did not appeal that decision.

On November 13, 2000, Madriz filed with the BIA a motion to reopen and reconsider. He relied on the decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. Aug.1, 2000). In Lujan-Armendariz the Ninth Circuit reversed in part the BIA's decision in Matter of Roldan-Santoyo, 22 I & N Dec. 512 (BIA 1999), on which the BIA had relied in its December 27, 1999 dismissal of Madriz's appeal from the May 5, 1999 decision of the IJ. As the BIA noted in its April 19, 2002 memorandum denying the motion to reopen and reconsider, Madriz filed with that motion "a copy of an order from the Texas criminal court dated June 9, 1999, terminating his probation after successful completion, and dismissing the drug possession complaint against him pursuant to article 42.12, § 5 of the Texas Code of Criminal Procedure."4 The government opposed Madriz's motion to reconsider and reopen on the ground, among others, that it was untimely. The BIA, by its April 9, 2002 decision, denied the motion to reconsider and to reopen, noting that the regulations, 8 C.F.R. §§ 3.2(b) & 3.2(c), required filing within thirty and ninety days, respectively, of the date of the final administrative decision, which was December 27, 1999, and that the November 13, 2000 "motion to reopen and reconsider is therefore untimely." The BIA's decision further held that Madriz "has failed to show that an exceptional situation warrants our consideration of his untimely motion to reopen and reconsider in the exercise of discretion," noting that in Matter of Salazar-Regino, 23 I & N Dec. 223 (BIA 2002) the BIA had held that the decision in Lujan-Armendariz would not be applied to cases arising outside of the Ninth Circuit and that, except where Lujan-Armendariz applied, Matter of Roldan-Santoyo would continue to govern. Madriz did not seek to appeal the BIA's April 9, 2002 denial of his motion to reconsider and reopen.

On May 9, 2002, Madriz filed the instant habeas petition, arguing that his Texas state court deferred adjudication for possession of LSD was not a conviction for immigration purposes. Respondents moved for summary judgment, arguing that the district court lacked subject matter jurisdiction and, alternatively, that Madriz was not entitled to relief on the merits. Madriz filed a cross-motion for summary judgment, claiming that the district court did have jurisdiction over his section 2241 application and that he was entitled to relief because his removal order was a violation of due process and equal protection. The district court referred the matter to a U.S. Magistrate Judge who concluded on October 18, 2002, that the district court did have jurisdiction to entertain the section 2241 habeas application, but recommended that Madriz's application be denied on the merits. The district court, Judge Werlein, adopted the recommendation over Madriz's objections and entered final judgment on December 4, 2002. Madriz timely appealed.

Discussion
1. Standard of Review

The district court's legal determinations, including those concerning jurisdiction, are reviewed de novo. Rivera-Sanchez v. Reno, 198 F.3d 545, 546 (5th Cir.1999). Dismissal of a habeas corpus petition on summary judgment is reviewed de novo on appeal. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir.2000).

If the governing immigration statute does not speak clearly to the question before the court, the BIA's interpretation of ambiguities therein will be upheld if that interpretation is reasonable. Wilson v. INS, 43 F.3d 211, 213 (5th Cir.1995).

2. The district court's jurisdiction

The government argues that the district court lacked jurisdiction to entertain Madriz's habeas petition because Madriz was found removable by reason of having committed an offense covered in 8 U.S.C. § 1182(a)(2)(A)(i)(II), and because 8 U.S.C. § 1252(a)(2)(C) provides that "no court shall have jurisdiction to review any final order of removal against an alien by reason of having committed an offense covered in section 1182(a)(2)." Madriz responds that in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2278-87, 150 L.Ed.2d 347 (2001), the Court held section 1252(a)(2)(C) did not preclude resort to habeas relief under section 2241. The government contends that St. Cyr does not control where all the issues raised in the section 2241 petition could have been resolved by a court of appeals in ruling on a petition for review of the BIA's order,5 and that the only issue raised by Madriz in his habeas petition — namely that his Texas deferred adjudication does not, and may not constitutionally, constitute a conviction under section 1182(a)(2)(A)(i)(II) or otherwise render him removable thereunder — could have been resolved by this court in ruling on its jurisdiction to consider a petition for review of the BIA's decision (or decisions) in his case. See, e.g., Santos v. Reno, 228 F.3d 591, 597 (5th Cir.2000); see also Flores-Garza v. INS, 328 F.3d 797, 802 (5th Cir.2003).6 We pretermit this jurisdictional issue because it has no effect on the disposition of this case inasmuch as we conclude that the district court correctly dismissed Madriz's habeas petition on the merits. See Seale v. INS, 323 F.3d 150, 152-57 (1st Cir.2003) (pretermitting the same issue for essentially the same reasons). See also Texas Employers' Ins. Ass'n v. Jackson, 862 F.2d 491, 497 n. 8 (5th Cir.1988) (en banc) (pretermitting issue of district court's jurisdiction since relief properly denied on merits).7

3. Madriz's deferred adjudication as a ground for removal
(a) Introduction

Madriz contends that his November 1995 Texas deferred adjudication for possession of LSD is not a conviction, or grounds for removal, under section 1182(2)(A)(i)(II), see note 2 supra, for basically two reasons:

(1) that it was not a "convi...

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