* Pursua nt to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 13, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-30981

Summary Calendar

GREGORION RAFAEL REYES-GOMEZ,

Petitioner-Appellant,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL; JAMES W. ZIGLAR;

EDWARD J. McELROY; DONALD A. YOUNG; CHRISTINE G. DAVIS; UNITED

STATES DEPARTMENT OF JUSTICE; BUREAU OF IMMIGRATION AND CUSTOMS

ENFORCEMENT

Respondents-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(2:02-CV-843)

Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Gregorian Rafael Reyes-Gomez appeals the denial of his habeas

petition, pursuant to 28 U.S.C. § 2241. As discussed i nfra

, his

appeal is treated as a petition for review of the underlying order

of removal.

Reyes-Gomez, a native and citizen of the Dominican Republic,

entered the United States as a lawful permanent resident on 13 June2

1970. On or about 6 June 1995, he was convicted in New York of

criminal possession of a weapon in the third degree and was

sentenced to one year’s imprisonment. On 19 January 1996, the

Immigration and Naturalizat ion Service issued an order to show

cause, charging him with deportability based on his conviction.

On 14 July 1997, after pleading guilty to a federal charge,

Reyes-Gomez was sentenced, inter alia , to 120-months imprisonment

(later reduced to 60 months) for conspiracy to possess with intent

to distribute in exce ss of 50 grams of cocaine base and cocaine.

Post-arrest, he began cooperating with federal la w enforcement

officials, providing testimony that led to the conviction of other

drug dealers.

On or about 26 April 2001, venue of Reyes-Gomez’s deportation

proceedings was transferred from New Yo rk to Oakdale, Louisiana,

where Reyes-Gomez was detained on his federal conviction. On 10

May 2001, an additional charge of deportability was filed against

him for having been convicted of an aggravated felony.

Reyes-Gomez applied for asylum and withholding of removal and

for relief under the Convention Against Torture (CAT). The

Immigration Judge (IJ) denied this application and orde red his

removal. Reyes -Gomez’s appeal, through counsel, to the Board of

Immigration Appeals (BIA) was dismissed. Proceeding p ro se

, ReyesGomez filed a timely petition for review of the BIA’s decision in

the Second Circuit. The petition was transferred to this court on3

28 January 2005 and was dismissed for lack of jurisdiction on 28

April 2005.

In April 2002, while his petition was pending in the Second

Circuit, Reyes-Gomez filed a habeas petition, pursuant to 28 U.S.C.

§ 2241, and a motion for a stay of depo rtation, again proceeding

pro se

, in the United States District Court for the Eastern

District of New York. This habeas petition was transferred to the

Western District of Louisiana, where, after Reyes-Gomez obtained

counsel, it was dismissed with prejudice. Reyes-Gonzales filed a

timel y notice of appeal. On 6 June 2005, this court granted his

motion for stay of deportation pending appeal.

Despite § 106 of the REAL ID Act, 8 U.S.C. § 1252, which

div ests federal courts of jurisdiction over § 2241 petitions

attacking rem oval orders, we have jurisdiction to review ReyesGomez’s challenge. R osales v. Bureau of Immigration & Customs

Enforcement

, 426 F.3d 733, 735-36 (5th Cir. 200 5), petition for

cert. filed

, (U.S. 24 Oct. 2005) (No. 05-7335) (“[H]abeas petitions

... that were already on appeal as of the REAL ID Act’s effective

date [of 11 May 2005] ... are properly converted into petitions

for review”.). Further, although “8 U.S.C. § 1252(b)(2)(C)

generally prohibits judicial review of removal orders issued on the

basis of an alien’s commission of an aggravated felony”, the REAL

ID Act provides that none of its jurisdiction-stripping provisions

“‘shall be construed as precluding review of constitutional claims4

or questions of law raised upon a petition for review filed with an

appropriate court of appeals’”. I d

. (quoting 8 U.S.C. §

1252(b)(2)(D) (2005)).

Because Reyes-Gomez raises multiple constitutional issues, we

have jurisdiction, pursuant to § 1252(b)(2)(D), to review them.

Id

. We review constitutional challenges d e novo

. S oadjede v.

Ashcroft , 324 F.3d 830, 831 (5th Cir. 2003).

First, Reyes-Gomez claims that, if removed to th e Dominican

Republic, he is likely to be injured or killed; and that this would

violate his right to substantive due process under the Fifth

Amendment. In support, he relies on the state-created danger

doctrine, which has never explicitly been adopted by this court.

Scanlan v. Tex. A&M Univ.

, 343 F.3d 533, 537 (5 th Cir. 2003).

Under this doctrine, due process is violated when state actors: (1)

“use[] their authority to create a dangerou s environment for the

plaintiff”; and (2) “act[] wi th deliberate indifference to the

plight of the plaintiff”. I d

. at 537-38 (setting forth the

elements of the cause of actio n in analyzing a pleading’s

cons titutional claim for relief, pursuant to 42 U.S.C. § 1983).

Because Reyes-Gomez did not raise this st ate-created danger

challenge in district court, we will not review it here. M artinez

v. Tex. Dep’t of Criminal Justice , 300 F.3d 567, 574 (5th Cir.

2002) (refusing to disturb this court’s “long established course of5

refusing, absent extraordinary circumstances, to entertain legal

issues raised for the first time on appeal”).

Second, Reyes-Gomez claims that his removal to the Dominican

Republic would constitute cruel and unusual punishment in violation

of the Eighth Amendment. This claim is without merit. Cortez v.

INS

, 395 F.2d 965, 967 (5th Cir. 1968) (holding that Eighth

Amendment protections against cruel and unusual punishment do not

apply to deportation proceedings).

Reyes-Gomez contends that Cortez cannot stand in the light of

INS v. St. Cyr , 533 U.S. 289 (2001). That decision, however, did

not overrule Cortez

. I d

. at 324 (holding that “the presumption

against retroactivity applies far beyond the confines of the

criminal law[, and the]

... mere statement that deportation is not

punishmen t for past crimes” did not preclude its considering “an

ali en's reasonable reliance on the continued availability of

disc retionary relief”). Further, post- S t. Cyr

, numerous courts

have continued to hold that the Eighth Amendment does not apply to

deportation proceedings. S ee e.g.

, Elia v. Gonzales

, 418 F.3d 667,

675 (6th Cir. 2005) (“[T]h e Eighth Amendment is inapplicable to

deport ation proceedings because, as the Supreme Court has held,

deportation does not constitute punishment”.); Cadet v. Bulger

, 377

F.3d 1173, 1196 (11th Cir. 2004) (“Because immigration proceedings

are not criminal and do not constitute punishment, [Petitioner’s]6

argument that his removal ... will violate the Eighth Amendment

lacks merit.”).

Third, Reyes-Gomez claims he received ineffective assistance

of counsel in violation of the Fifth Amendment. (His Sixth

Amendment right to effective assistance of counsel is not

implicated because the challenged removal proceeding was civil, not

criminal.) To prevail under this claim, he must show: (1)

deficient performance; and (2) substantial prejudice, resulting

from the ineffective representation. Miranda-Lores v. INS , 17 F.3d

84, 85 (5th Cir. 1994).

Al though Reyes-Gomez has met the first prong by showing

deficient performance, he has not shown the second

— resulting

prejudice. To show prejudice, he must establish “there is a

reasonable probability that, but for counsel’s unprofessional

error[], the result of the proceeding would have been different”.

United States v. Williamson

, 183 F.3d 458, 463 (5th Cir. 1999)

(in ternal citation and quotation marks omitted) (alteration in

original ). Reyes-Gomez would have been subject to deportation,

however, even with effective representation. Therefore, this claim

also fails.

In addition to these constitutional challenges, Reyes-Gomez

claims the IJ applied the wrong standard when determining whether

he was entitled to relief under the CAT. “We have authority to

review only an order of the BIA, not the IJ, unless the IJ’s7

decision has some impact on the BIA’s decision.” Mikhael v. INS

,

115 F.3d 299, 302 (5th Cir. 1997). The BIA dismissed Reyes-Gomez’s

appeal because it agreed with the IJ’s decision, “find[ing] no

reason to disturb [its] findings”. Therefore, we review the IJ’s

decision. See id

.

The IJ held Reyes-Gomez ineligible for withholding of removal

under the CAT because of his five-year sentence for a conviction of

an aggravated felony, and that he failed to meet his burden of

proof with regard to deferral of removal. Reyes-Gomez challenges

the latter finding, claiming the IJ applied the wrong standard by

requiring a specific nexus between the harm Reyes-Gomez feared and

a government official in the Dominican Republic. Reyes-Gomez

concedes, however, that to obtain def erral of removal under the

CAT, he must prove his torture would be “inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity”. Efe v.

Aschcroft

, 293 F.3d 899, 907 n.8 (5th Cir. 2002) (quoting 8 C.F.R.

§ 208.18(a)(1)). Therefore, his true claim is that the IJ erred in

finding that he failed to meet his burden of proof in this respect.

Such claim is based on the IJ’s factual finding; therefore, we lack

juri sdiction. S ee Rosales

, 426 F.3d at 736; see also Hamid v.

Gonzales

, 417 F.3d 642, 647 (7th Cir. 2005) (holding it lacked

jurisdiction to review an aggravated felon’s CAT claim where it did

not concern a constitutional issue or question of law).8

Finally, Reyes-Gomez’s request to stay this proceeding pending

the decision of similar issues in his separate petition for review

to the Second Circuit is moot. As discussed supra , that petition

was transferred to this cour t and dismissed for lack of

jurisdiction.

DENIED