UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 99-40123

____________________

ISAIAS TOSCANO-GIL,

Petitioner-Appellee,

versus

E.M. TROMINSKI, District Director, Immigration &

Naturalization Service; JANET RENO, U.S.

Attorney General; UNITED STATES OF AMERICA,

Respondents-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

___________________________

_________________________________________________________________ April 20, 2000

Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The linchpin to the Government’s challenge to the 28 U.S.C. §

2241 habeas relief granted excludable alien Isaias Toscano-Gil is

whether he states a cognizable constitutional claim by asserting

that, in denying him a waiver of inadmissibility, the Board of

Immigration Appeals violated his right to procedural due process by

characterizing his DWI arrest as a conviction and failing to

discuss certain relevant factors or distinguish BIA precedent.

Because such contentions do not state a cognizable constitutional

claim, we REVERSE and DISMISS

.1 INA § 212(c) was repealed effective 1 April 1997. See

Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597 (1996);

see, e.g.

, Morales-Ramirez v. Reno

, No. 99-2065, 2000 WL 375430, at

*4 (7th Cir. 13 April 2000). Under § 304(b), criminal aliens are

i neligible for waivers of exclusion. S ee INA § 240A, 8 U. S.C. §

1229b (replacing INA § 212(c)).

2 I.

Mexican native and citizen Toscano, a permanent United States

resident since 1987, was arrested in March 1996 on returning from

a brief trip to Mexico, when Immigration and Naturalization Service

Agents found approximately 52 pounds of marijuana in his vehicle’s

fuel tank. Toscano pleaded guilty to a Texas state charge of

marijuana possession and received five years probation.

The IN S began exclusion proceedings in May 1996 under §

212(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1182(a)(2)(C), on the grounds that immigration authorit ies had

reason to believe Toscano was involved in illicit trafficking of a

controlled substance. Toscano conceded he was excludable on this

basis. But, he sought a w aiver of inadmissibility, pursuant to

former INA § 212(c), 8 U.S.C. § 1182(c): “Aliens lawfully admitted

for permanent residence who temporarily [go] abroad

... and who are

returning to a lawful unrelinquished domicile of seven consecutive

years, may be admitted in the discretion of the Attorney

General....” (Emphasis added.) 1

In January 1997, the Immigration Judge grante d Toscano’s

application, finding: he had demonstrated “unusual and3

outstanding” equities; it was “highly unlikely” he would become a

repeat offender; and relief was warranted under BIA precedent.

The Government appealed. In May 1998, the BIA, by a two to

one decision, vacated the IJ’s decision and ordered Toscano

excluded and deported.

The BIA majority found Toscan o’s employment history to be

favorable. It noted his wife and children were residing illegally

in this country, while his siblings were lawful permanent

residents. Toscano’s “length of residence and family ties in this

country” were determined to be “favorable factors, but not unusual

or o utstanding equities”. (Emphasis added.) And, the majority

decided that, in considering Toscano’s knowledge of the marijuana,

the IJ had “improperly reexamined [his] guilt”. It concluded:

[The] equities do not outweigh the adverse

factors. The record reflects that [Toscano]

committed a serious criminal act

. Specifically, [he] attempted to smuggle 52

pounds of marijuana into this country. [He]

pled guilty to the crime of possession of

marijuana. Moreover, [he] conceded that he

was arrested and convicted in 1993 for driving

under the influence.

While we are mindful that the applicant

will likely suffer hardship as the result of

the applicant’s exclusion an d deportation,

this is a consequence of the applicant’s

behavior, actions for which he alone is

responsible. Moreover, the applicant’s family

is residing in this country illegally.

Although we recognize the economic hardships

that exist in Mexico, the record reflects that

the applicant has family in Mexico.4 When we consider all the evidence that

the applicant and his witness presented

regarding his equities, we simply do not find

that he demonstrated that these equities

outweigh the adverse factors. In particular,

we find that granting discretionary relief to

the applican t does not appear to be in the

best interest of this country. M atter of

Burbano

, 20 I&N Dec. 872 (BIA 1994); Matter of

Marin , 16 I&N Dec. 581 (BIA 1978).

(Emphasis added.)

The dissent, on the other hand, found: Toscano’s 18 years’

residence in this country was an outstanding equity; his wife and

children were seeking legal status; and the majority “minimize[d]

the hardship” of his deportation on them. The dissent also noted:

Toscano’s conviction for possession “was his only criminal

conviction”; and “the majority’s o pinion [did not] provide any

authority

... that t he favorable exercise of discretion” was

inconsistent with BIA precedent.

In June 1998, Toscano filed a habeas petition in federal

district court. It concluded it had jurisdiction under 28 U.S.C.

§ 2241(c)(1) and (c)(3) (“where statutory review is unavailable, or

where the petitioner did not deliberately by-pass available

statutory procedures”).

The court found: in adjudicating Toscano’s waiver request,

the BIA failed to consider rehabilitation; failed to consider all

of the equities cumulatively; mischaracterized a prior arrest for

DWI as a conviction; and “ne ither followed, nor distinguished,

prior precedent decisions

... where

... similar equities” warranted2 “Except as provided in this section and notwithstanding any

other provision of law, no court shall have jurisdiction to hear

any cause or claim by or on behalf of any alien arising fr om the

decision or action by the Attorney General to commence proceedings,

5 relief. T

oscano-Gil v. Trominski

, No. CA B-98-89, slip op. at 3-4

(S.D. Tex. Dec. 4, 1998). It held that “procedural Due Process” is

violated “where, as here, the [BIA] fail s to follow (or

distinguish) its own precedent, neglects to take into consideration

such crucial matters as rehabilitation, and misstates such

important facts as ... criminal history”. Id. at 6.

II.

The Governm ent contests the district court’s exercise of §

2241 jurisdiction and its due process holding.

The exclusion proce edings were initiated prior to 1 April

1997, and concluded more than 30 days after the 30 September 1996

ena ctment of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-

546 (1996). See note 1, supra . Therefore, this case is governed

by IIRIRA’s transitional rules. S ee Requena- Rodriguez v.

Pasquarell , 190 F.3d 299, 302-03 (5th Cir. 1999).

Requena-Rodriguez

, rendered while this appeal was pending,

held: “§ 2241 habeas jurisdiction continues to exist under IIRIRA’s

transitional rules in cases involving final orders of deportation

against criminal aliens” ( except where 8 U.S.C. § 1252(g), quoted

below, applies) 2 ; and such r eview “is capacious enough to includeadjudicate cases, or execute removal orders against any alien under

this chapter.” 8 U.S.C. § 1252(g).

3 Max-George v. Reno

, 2000 WL 220502 , at *8 (5th Cir. 24 Feb.

2000), holds that, for cases involving “aggravated felons”, 8

U.S.C. § 1101(a ), the IIRIRA’s p ermanent rules “channel all

judicial review of final orders of removal by the INS to petitions

for review filed in the courts of appeals”, eliminating § 2241

habeas review. As noted, Toscano’s case falls under the

transitional rules.

6 constitutional and statutory challenges” (such as the retroactivity

and equal protection claims at issue there), which we c annot

consider on direct review , and “which would have been cognizable

even at the lowest pre-IIRIR A ebb of immigration habeas

j urisdiction”. R equena-Rodriguez

, 109 F.3d at 305-06 (emphasis

added). S ee Alfarache v. Cravener

, 203 F.3d 381, 38 2 (5th Cir.

2000) (upholding district court’s exercise of jurisdiction in case

“factually indistinguishable” from Requena-Rodriguez ).

The Government asserts that, unlike in Requen a-Rodriguez , §

2241 habeas jurisdiction does not exist here, because: Toscano is

exclud able , rather than deportable; and he is contesting the

Attorney General’s (AG) discretionary denial of relief under former

§ 212(c), described supra

. S ee Ashby v. INS

, 961 F.2d 555, 557

(5 th Cir. 1992) (noting AG’s “unusually broad discretion” for §

212(c) waivers). 3

We need n ot reach the jurisdictional questions present ed by

the Government if Toscano has not stated a cognizable

constitutional claim. Such a claim is a prerequisite for the §7

2241 jurisdiction he claims. Toscano asserts a due process

violation.

Pursuant to the Fifth Amendment, aliens i n deportation

proceedings are entitled to due process. R eno v. Flores

, 507 U.S.

292, 306 (1993). We review a due process claim d e novo

. O gbemudia

v. INS

, 988 F.2d 595, 598 (5 th Cir. 1993). The alien must

demonstrate substantial prejudice. A nwar v. INS

, 116 F.3d 140, 144

(5th Cir. 1997).

As note d, the district court held the BIA denied Toscano

“procedural due process” by mischaracterizing his DWI arrest as a

conviction; and by failing to consider rehabilitation, to consider

the equities cumulatively, and to follow or distinguish precedent.

These claims, acco rding to the Government, are the type

properly reviewed for abuse of discretion, not for denial of due

process. In support, it cites several Supreme Court cases. E .g.

,

Immigration & Naturalization Serv. v. Yang

, 519 U.S. 26, 32 (1996)

(“irrational departure” from “general policy” governing exercise of

administrative discretion “could constitute ... an abuse of

discretion”); Unite d States ex rel. Vajtauer v. Commissioner of

Immigration

, 273 U.S. 103, 106 (1927) (alien may establish due

process violation by showing he was deported “without a fair

hearing or on charges unsupported by any evidence .... not ... by

showing merely that the decision is erroneous” (emphasis added));

United States ex r el. Tisi v. Tod , 264 U.S. 131, 132, 134 (1924)4 The Government maintains that the BIA did not ab use its

discretion, citing, e.g.

, Yahkpua v. INS

, 770 F.2d 1317, 1320 (5th

Cir. 1985) (noting BIA is n ot required to render “absolutely

consistent” opinions with similar fact patterns).

8 (“mere error, even ... finding an essential fact without adequate

supporting evidence, is not a denial of due process” (emphasis

added)). It also cites numerous cases where we have applied an

abuse of discretio n standard to similar claims in petitions for

review. See, e.g.

, Opie v. INS , 66 F.3d 737, 739-40 (5th Cir.

1995) (applying abuse of discretion standard where petitioner

claimed BIA erroneously emphasized falsehoods in his nonimmigrant

visa application and minimized hardships). 4

Toscano responds that his claims “go to the heart” of due

process, claiming the BIA “failed to give meaningful consideration

to his application” and supporting evidence, therefore denying him

the opportunity to be heard in “a meaningful manner”. In support,

he cites Kwock

Jan Fat v. White , 253 U.S. 454, 457-58 (1920)

(immigration orders are “fina l, and conclusive upon the courts,

unless

... the proceedings were manifestly unfair, were such as to

prevent a fair investigation, or show manifest abuse of the

discretion

... or

... authority was not fairly exercised” (internal

quotation marks and citations omitted)). He also cites several of

our cases. E.g.

, Zamora-Garcia v. INS , 737 F.2d 488, 490-91 (5th

Cir. 1984) (courts of appeals may review deportation decisions

“‘procedurally’ to ensure that the complaining alien has received9

full and fair consideration of all circumstances”, and that each of

his claims has been “meaningfully address ed” (internal quotation

marks and citation omitted)); Ramos v. INS

, 695 F.2d 181, 189 (5th

Cir. 1983) (BIA not req uired to address evidentiary minutiae or

write “lengthy exegeses”; decision need only reflect meaningful

consideration of relevant evidence).

Toscano maintains: the BIA’s failure in its opinion to

discuss rehabilitation shows its authority was not “fairly

exercised”; its unsupported-by-the-record characterization of an

arrest as a conviction, and implicit finding that Toscano had not

shown sufficient rehabilitation, constitutes “a manifest abuse of

discretion”; and substantial prejudice was shown, becaus e the

district court determined that, but for the BIA’s errors, Toscano

likely would have been granted relief.

The claimed bases for due process violations, however, do not

rise to that level. S ee Diaz-Resendez v. INS

, 960 F.2d 493, 496-98

( 5th Cir. 1992) (applying abuse of discretion standard to claims

that BIA improperly weighed equities, failed to follow precedent,

and failed to consider hardships or rehabilitation); Osuchukwu v.

INS

, 744 F.2d 1136, 1142 (5th Ci r. 1984) (BIA decision must be

upheld, even if we disagr ee with it, “so long as it is not

capricious, racially invidious, utterly without foundation in the

evidence, or otherwise so aberrational that it is arbitrary rather

than the result of any perceptible rational approach”).10

First, Toscano was not denied the opportunity to be heard or

present evidence. S ee Molina v. Sewell

, 983 F.2d 676, 680 (5 t h

Cir. 1993) (alien n ot given opportunity to put on eviden c e

established requisite prejudice); Chike v. INS , 948 F.2d 961, 962

(5th Cir. 1991) (alien not given notice of briefing schedule denied

opportunity to be heard).

S econd, and needless to say, a factual error is n ot a due

process violation. In any event, the critical factor was the

marijuana conviction (classified by the BIA as a “serious criminal

act”), not the erroneous statement about a conviction for the DWI

arrest.

Third, the BIA gave full consideration to the evidence

presented and to the equities. It decided that the “equities [do

not ] outweigh the adverse factors”.

Finally, concerning BIA precedent, the BIA majority cited the

primary cases, Matter of Burbano and Matter of Marin

, relied on by

the dissent. In this instance, the majority and dissent simply

disagree over the application of BIA precedent. Obviously, that is

not a due process denial.

The BIA dissent provided further matters upon which the

majority could reflect. For example, the dissent noted the

marijuana incident was Toscano’s only conviction, and raised the

precedent issue. This notwithstanding, Toscano did n ot ask the BIA

to reconsider its decision.5 Jurisdiction vel non under § 2241 for abuse of discretion is

not claimed. And, in the light of our holding, we need n ot address

the Government’s contention that denials of former § 212(c) relief

do n ot implicate due process. S ee Mejia Rodriguez v. Reno

, 178

F.3d 1139, 1146 (11th Cir. 1999) (“failure to receive relief that

is purely discretionary in nature does not amount to a deprivation

of a liberty interest” (emphasis added)).

11 For § 2241 habeas jurisdiction to even exist per RequenaRodriguez , Toscano must have stated a cognizable constitutional

claim. He has not done so. 5

III.

For the foregoing rea sons, the grant of habeas relief is

REVERSED , and the petition is DISMISSED

.

REVERSED and DISMISSED