Santos v. Reno, 99-20508

• Decision Date: 26 September 2000
• Docket Number: No. 99-20508,99-20508
• Citation: 228 F.3d 591
• Parties: (5th Cir. 2000) JOSE SANTOS, Plaintiff-Appellee, v. JANET RENO, U.S. Attorney General; RICHARD V. CRAVENER, District Director of the Houston District of the Immigration and Naturalization Service, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 591

228 F.3d 591 (5th Cir. 2000)

JOSE SANTOS, Plaintiff-Appellee, v. JANET RENO, U.S. Attorney General; RICHARD V. CRAVENER, District Director of the Houston District of the Immigration and Naturalization Service, Defendants-Appellants.

No. 99-20508

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 26, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

The Immigration and Naturalization Service (INS) appeals the district court's grant of the petition for a writ of habeas corpus filed by petitioner-appellee Jose Angel Santos (Santos). We vacate the district court's grant of habeas relief and remand with instructions to dismiss the petition for lack of jurisdiction.

Facts and Proceedings Below

Santos, a native and citizen of El Salvador, entered the United States illegally in August 1980. He, however, has been a lawful, permanent resident of the United States since 1987 when he adjusted his status to temporary residency under the amnesty program. On July 22, 1994, Santos pleaded guilty in Texas state court to the offense of burglary of a vehicle committed on or about May 25, 1994, and was sentenced to five years' deferred adjudication of guilt and placed on probation.¹ In October 1995, Santos violated the terms of his probation and was sentenced to two years' imprisonment.

On November 15, 1996, the INS charged Santos with deportability as an alien who had been convicted of an aggravated felony, based on his conviction of burglary of a vehicle. See 8 U.S.C. § 1227(a)(2)(A)(iii).² In response to the INS's charge, Santos did not contest his deportability for having committed an aggravated felony, but rather sought discretionary relief from deportation under former section 212(c) of the Immigration and Nationality Act (INA), which, before being repealed in 1996, gave the Attorney General discretion to waive deportation for some long-time legal permanent residents. See INA § 212(c) (formerly codified at 8 U.S.C. § 1182(c) (1994)). After conducting a hearing on December 16, 1996, the immigration judge (IJ) found Santos to be deportable as an aggravated felon and ineligible for discretionary relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).³ Santos then appealed to the Board of Immigration Appeals (BIA), arguing that he had suffered a constitutional deprivation by AEDPA's rendering him ineligible for discretionary relief from deportation. On July 13, 1998, the BIA dismissed his appeal, and Santos filed a petition for review of the BIA's decision with this Court, arguing for the first time that his conviction of burglary of a vehicle does not render him deportable, because the Texas legislature had reclassified burglary of a vehicle as a misdemeanor effective after his conviction but before his deportation proceedings commenced. The INS moved this Court to dismiss Santos's petition for review, asserting that section 309(c)(4)(G) of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) precluded consideration of a petition for review by an alien who had been found deportable for having committed an aggravated felony. In response, Santos maintained that burglary of a vehicle is not a felony and, therefore, cannot constitute an aggravated felony. In an unpublished opinion, this Court granted the INS's motion, dismissing Santos's petition for review for lack of jurisdiction. Santos v. INS, No 98-60492 (5th Cir. Sept. 1, 1998) (per curiam).

Following the dismissal of his petition for review, Santos filed in the court below a petition for habeas corpus under 28 U.S.C. § 2241 and a request for a stay of his deportation order. In his habeas petition, Santos made two arguments: (1) burglary of a vehicle was not an aggravated felony; and (2) the BIA's construction of AEDPA that deportable aliens convicted of an aggravated felony were ineligible for discretionary relief was irrational and violated equal protection. At the hearing on his petition, Santos withdrew his second argument. Before the district court, the INS contended that 8 U.S.C. § 1105a(c) prevented the district court from considering Santos's argument that his offense was not an aggravated felony, because this Court's dismissal of his petition for review for lack of jurisdiction necessarily decided that burglary of a vehicle was an aggravated felony. On May 23, 1999, the district court rejected the INS's argument that it was without jurisdiction and granted Santos's petition, finding he had a likelihood of succeeding on the merits of his claim that burglary of a vehicle is not an aggravated felony. Accordingly, the district court issued a stay of deportation and remanded to the BIA for consideration of Santos's claim. The INS timely appealed to this Court.

Discussion

The INS argues that the district court committed two errors in granting Santos habeas relief: (1) deciding that it had jurisdiction to consider Santos's section 2241 habeas petition⁴; and (2) finding that Santos had a likelihood of succeeding on the merits of his claim that burglary of a vehicle is not an aggravated felony. We review both issues de novo. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999). We first consider whether the district court had jurisdiction to consider Santos's section 2241 petition. As Santos was the party seeking to invoke federal jurisdiction, he bears the burden of demonstrating that jurisdiction was proper. See Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998).

Initially, we must determine the legal regime governing Santos's deportation. "After IIRIRA, two sets of rules-transitional and permanent-are available to govern immigration proceedings, depending on their timing." Requena-Rodriguez, 190 F.3d at 302. IIRIRA's transitional rules apply to removal proceedings that commence before April 1, 1997 and conclude more than thirty days after September 30, 1996. See Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1996). As Santos's deportation proceeding commenced in 1996 and did not conclude until July 1998, IIRIRA's transitional rules govern. See Requena-Rodriquez, 190 F.3d at 302-03; IIRIRA §§ 309(a) & (c)(1).

In Requena-Rodriguez, we considered the extent of section 2241 habeas jurisdiction under IIRIRA's transitional rules. Like Santos, Requena-Rodriguez was charged with deportability for having committed an aggravated felony. See Requena-Rodriguez, 190 F.3d at 302. After an immigration judge and the BIA found him to deportable and ineligible for discretionary relief, this Court denied Requena-Rodriguez's petition for review. See id. Requena-Rodriguez then filed a section 2241 petition in district court, arguing that AEDPA's withdrawal of discretionary relief to deportable aliens could not be applied retroactively against him and violated equal protection. See id. Accepting the magistrate court's recommendation, the district court concluded that it had jurisdiction to consider Requena-Rodriguez's challenges, but that they were meritless. See id. Requena-Rodriguez then appealed to this Court.

We affirmed the district court's conclusion that it had jurisdiction over Requena-Rodriguez's section 2241 petition. First, we determined that the limits on judicial review contained in 8 U.S.C. § 1252(g)⁵, which apply to transitional cases, did not govern Requena-Rodriguez's challenge to his final deportation order. See id. at 303; see also Zadvydas v. Underdown, 185 F.3d 279, 285-86 (5th Cir. 1999), cert. granted, ___ U.S. ___, 121 S.Ct. 297, ___ L.Ed.2d ___ (2000) (determining that section 1252(g) did not bar challenges to the validity of statutes authorizing the detention of aliens). Second, we held that, where 8 U.S.C. 1252(g) does not limit judicial review, section 2241 habeas jurisdiction remains "under IIRIRA's transitional rules in cases involving final orders of deportation against criminal aliens, and that habeas jurisdiction is capacious enough to include constitutional and statutory challenges if those challenges cannot be considered on direct review by the court of appeals." Requena-Rodriguez, 190 F.3d at 305⁶; see also Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir. 1999) (per curiam).

In the present case, the INS relies on Requena-Rodriguez and 8 U.S.C. § 1105a(c), arguing that section 2241 jurisdiction is not available for a claim, such as Santos's, that can be considered on direct review by this Court. The INS contends that Santos's argument that burglary of a vehicle is not an aggravated felony not only could have presented to this Court in his petition for review, but was in fact considered and rejected by this Court. Therefore, the INS concludes that Santos cannot now seek collateral review of that determination. We agree.

Although IIRIRA repealed 8 U.S.C. § 1105a(c), see IIRIRA § 306(b), the transitional rules governing judicial review set forth in IIRIRA § 309(c)(4)⁷ incorporate Immigration and Nationality Act § 106(c), codified at 8 U.S.C. § 1105a(c). See Lara v. Trominski, 216 F.3d 487, (5th Cir. 2000); Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Sofinet v. INS, 188 F.3d 703, 708 (7th Cir. 1999); Hose v. INS, 180 F.3d 992, 996 (9th Cir. 1999) (en banc). Accordingly, Santos's petition is subject to 8 U.S.C. § 1105a(c). Under 8 U.S.C. § 1105a(c)⁸, the district court could not entertain Santos's petition unless it raised new grounds which could not have been presented to the BIA or to this Court on the prior appeal. See Garcia v. Boldin, 691 F.2d 1172, 1180 (5th Cir. 1982).⁹ We now address whether Santos's claim could have been presented to this Court in his petition for review.

In response to Santos's petition to this Court for review of the BIA's decision, the INS moved that the petition be dismissed for lack of jurisdiction pursuant to IIRIRA § 309(c)(4)(G), which...