Noriega-Lopez v. Ashcroft

• Citation: 335 F.3d 874
• Decision Date: 09 July 2003
• Docket Number: No. 01-17525.,01-17525.
• Parties: Javier NORIEGA-LOPEZ, Petitioner-Appellant, v. John ASHCROFT, Attorney General; Charles Demore; Lori Scialabba, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

335 F.3d 874

Javier NORIEGA-LOPEZ, Petitioner-Appellant, v. John ASHCROFT, Attorney General; Charles Demore; Lori Scialabba, Respondents-Appellees.

No. 01-17525.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2002.

Filed July 9, 2003.

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James Todd Bennett, El Cerrito, California, for the petitioner-appellant.

Greg D. Mack and Michelle Slack, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondents-appellees.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-01-21040-RMW.

Before NOONAN, BERZON, and TALLMAN, Circuit Judges.

BERZON, Circuit Judge.

Javier Noriega-Lopez is a citizen and national of Mexico admitted to the United States as a lawful permanent resident alien about thirty-six years ago. In March 2000, Noriega-Lopez was convicted of felony possession of heroin for sale in violation of California Health and Safety Code § 11351, an offense classified as an aggravated felony and a controlled substance offense under the Immigration and Nationality Act ("INA"). See 8 U.S.C §§ 1227(a)(2)(A)(iii); (B)(i). Shortly thereafter, the Immigration and Naturalization Service ("INS") issued a Notice to Appear charging Noriega-Lopez with removability for his crime. Noriega-Lopez denied that he had been convicted as stated in the Notice to Appear. At a removal hearing on July 17, 2000, the Immigration Judge ("IJ") reviewed the INS's proffer of documentation and concluded that the agency's showing was inadequate to prove by clear and convincing evidence that Noriega-Lopez had been so convicted. See 8 U.S.C. § 1229a(c)(3)(A) ("the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable"). The IJ focused on the fact that the criminal complaint issued to Noriega-Lopez was captioned "Superior Court of California, County of San Joaquin," while the conviction document, signed by Noriega-Lopez, was identified as emanating from the "Municipal Court of California, County of San Joaquin, Stockton Judicial District." As a result of his determination that the INS did not meet its evidentiary burden, the IJ terminated removal proceedings.

The INS appealed this decision, requesting "that the Board [of Immigration Appeals] reverse the Immigration Judge's ruling terminating these removal proceedings and that said proceeding be remanded to the Immigration Court for further proceedings." On July 31, 2001, the Board of Immigration Appeals ("BIA") sustained the INS's appeal on the ground that the record clearly established Noriega-Lopez's conviction. The BIA found the Municipal Court conviction document an adequate basis for the INS's institution of removal proceedings, stating: "The bottom line is that the record clearly establishes that the respondent was convicted for the offense of possession of a designated controlled substance (heroin) for sale in violation of section 11351 of the California Health and Safety Code."¹ The BIA vacated the IJ's order. Rather than remanding as requested by the INS, the BIA ordered Noriega-Lopez removed to Mexico.

Noriega-Lopez filed a petition for review with this Court. We directed him to show cause why the petition should not be dismissed for lack of jurisdiction and stayed Noriega-Lopez's removal. Instead of demonstrating why this Court had jurisdiction, Noriega-Lopez moved for voluntary dismissal. His motion was granted, as was his request that the temporary stay remain in effect.

On November 8, 2001, Noriega-Lopez filed a habeas petition in the district court, alleging that the INS had failed to meet its burden of proving his conviction and that the BIA had usurped the authority of the IJ by entering its own order of removal without first allowing Noriega-Lopez an opportunity to apply for relief. The district court denied the petition, holding that it lacked jurisdiction to consider Noriega-Lopez's challenge concerning his alleged conviction: "[T]he determination of whether petitioner was `convicted' of an aggravated felony should have been made by the Ninth Circuit. Petitioner, having failed to raise this issue in response to the Ninth Circuit's order to show cause, should not now be allowed to present that issue to this court on habeas."

In the alternative, the district court found that even if it had jurisdiction over Noriega-Lopez's failure of proof claim "the record contains clear and convincing proof that petitioner was convicted by the California Superior Court," attributing the discrepancy on Noriega-Lopez's conviction form to a recent merger of the superior and municipal courts into a unified superior court. "During the transition period, the superior court issuing petitioner's conviction continued to use municipal court forms while it waited for updated forms.... Under these circumstances, granting the petition indeed would elevate form over substance."

Addressing Noriega-Lopez's challenge to the BIA's failure to remand his case to the IJ, the district court rejected the argument on the merits, because "petitioner has not provided any evidence to show that he is entitled to relief from removal, or even alleged that he is entitled to such relief. As such, remanding this case ... would be futile and an unnecessary waste of judicial resources."

Subsequent to filing his appeal with this Court, Noriega-Lopez was removed from California to Mexico. We retain jurisdiction over a removed alien's habeas petition when, as here, it was filed before removal took place and there are collateral consequences arising from the removal. See Zegarra-Gomez v. INS, 314 F.3d 1124, 1125 (9th Cir.2003).²

DISCUSSION

We review the district court's denial of Noriega-Lopez's habeas petition de novo. See Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995).

I

Noriega-Lopez argues, first, that we have jurisdiction to review his insufficient documentation contention, now couched as a due process claim. The INS counters that Noriega-Lopez could have raised that claim on direct review. Because Noriega-Lopez voluntarily abandoned his petition for review, the INS posits, he failed to exhaust an available judicial remedy and relief should not be available. See Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001) ("we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under [28 U.S.C.] § 2241"). We agree with the INS and therefore affirm this aspect of the district court's decision.

Noriega-Lopez is correct that the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C)³ deprives us of jurisdiction over constitutional as well as other questions presented in a petition for review filed by an individual removed because he or she committed a qualifying criminal offense. See Flores-Miramontes v. INS, 212 F.3d 1133, 1135-36 (9th Cir.2000); see also Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064, 1067 (9th Cir.2003) (reaffirming this principle after Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001)); Randhawa v. Ashcroft, 298 F.3d 1148, 1154 (9th Cir.2002) (same). Because constitutional claims raised by criminal aliens can be raised in habeas corpus proceedings, we have declined to construe the statute so as to permit direct review by this Court. Flores-Miramontes, 212 F.3d at 1143. Constitutional claims such as that of Flores-Miramontes, a controlled substance offender who raised a due process challenge to the BIA's application of a filing deadline when the INS was alleged to have caused the relevant delay, see id. at 1135, are therefore cognizable if at all on habeas, not direct review.

At the same time, we have recognized that in determining the effect of 8 U.S.C. § 1252(a)(2)(C) on our jurisdiction directly to review a particular case, we must investigate the alleged underlying conviction as thoroughly as is necessary to ascertain whether the jurisdictional bar applies. As stated in Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000):

[To the extent that] we have jurisdiction to determine our own jurisdiction, see Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000), the jurisdictional question and the merits collapse into one. If Ye did not commit an aggravated felony, we have jurisdiction, and Ye wins on the merits. If Ye did commit an aggravated felony, we do not have jurisdiction (and Ye would lose on the merits anyway).

It does not matter, contrary to Noriega-Lopez's submission, that his contention concerns not whether the alleged conviction was for an aggravated felony but whether he was convicted at all. Noriega-Lopez's due process claim regarding the sufficiency of the evidence used by the INS to establish his conviction falls squarely within the scope of the jurisdiction-determining analysis that this Court has conducted on direct review. See, e.g., Pazcoguin v. Radcliffe, 292 F.3d 1209, 1212 (9th Cir.2002) ("We have repeatedly held that we retain jurisdiction to determine whether an alien in fact committed acts that would trigger [the INA's jurisdictional bar for controlled substance offenses.] Because the central issue here is whether Pazcoguin in fact admitted to committing the essential elements of a controlled substance violation, we have jurisdiction." (citations omitted)); Dillingham v. INS, 267 F.3d 996, 1003 (9th Cir.2001) (holding, in a case where petitioner alleged that his conviction had been expunged, that "we have jurisdiction to determine whether the facts relevant to our jurisdiction exist"); Zavaleta-Gallegos v. INS, 261 F.3d 951, 955 (9th Cir.2001) (reviewing the BIA's factual findings concerning whether petitioner's conviction for a crime of moral turpitude was waived, as the question was determinative of the Court's jurisdiction under 8...