*District Judge of the Southern District of Texas, sitting by

designation.

 

** Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-11321

 

TIJANI AHMAD MOMOH,

Petitioner-Appellant,

versus

ARTHUR STRAPP, Immigration & Naturalization Service District

Director,

Respondent-Appellee.

 

Appeal from the United States District Court

For the Northern District of Texas

USDC No. 3:98-CV-812-G

 

March 20, 2000

Before HIGGINBOTHAM and PARKER, Circuit Judges, and JACK*, District

Judge.

PER CURIAM:**

Tijani Ahmad Momoh sought habeas review of his deportation

order and custody determination, and the district court dismissed

his petition for want of jurisdiction. We AFFIRM.

I.
 

1On reentering the United States, Momoh continued his criminal

activity. He was convicted of theft on May 29, 1985. On October

1, 1992, he was convicted of presenting a fraudulent insurance

claim to Nationwide Insurance Company in Georgia.

 

2While the appeal to the BIA was pending, Momoh moved the

Board to reopen the deportation proceedings for purposes of

adjudicating an application for adjustment of status. Because the

appeal was pending, the BIA treated the motion as a motion to

remand. On March 19, 1998, the BIA denied this motion because

Momoh did not properly submit a completed adjustment application or

visa petition filed on his behalf. The BIA also affirmed the

immigration judge’s deportation order and denied the motion to

reopen the case and remand for consideration of the adjustment of

2

Momoh is a citizen of Nigeria who first entered the United

States as a visitor on August 23, 1979. He was ordered to leave in

1979 because he stayed longer than authorized, but he remained in

the United States. He was convicted of theft in state court in

Dallas, Texas, on September 4, 1981 and September 10, 1981. He was

deported in December 1981, but he reentered the United States later

that year from Mexico.1 

The INS commenced deportation proceedings against Momoh on

March 11, 1997. On June 6, 1997, the immigration judge ordered

Momoh deported for entering the United States without inspection

and for returning without permission after deportation. The

immigration judge set a bond hearing and set Momoh’s bond at

$35,000. Momoh’s requests for redetermination of his bond were

denied because of Momoh’s criminal history and his statement that

he wanted to remain in the United States. 

Momoh appealed to the Board of Immigration Appeals ("BIA"),

which affirmed the immigration judge's order on March 19, 1998.2
status.

 

After Momoh filed his habeas petition, the BIA reopened

Momoh’s motion seeking adjustment of his status on July 21, 1998,

to examine correspondence Momoh sent to the BIA that it did not

consider in its initial denial of his motion. The BIA remanded

Momoh’s request for redetermination of his bond to the immigration

judge because the immigration judge’s decision on bond was not in

the record. On remand, the immigration judge ordered that Momoh be

held without bond. This order is still pending before the BIA, and

it is not a subject of Momoh’s habeas petition or this appeal. The

BIA denied the motion because Momoh did not demonstrate that he had

an approved visa petition or visa available to him, and the BIA

dismissed the appeal. Momoh did not appeal that decision.

 

3Momoh asserted that mandatory detention was unconstitutional

as applied to him as a lawful resident. He also claimed that the

immigration judge lacked jurisdiction over his deportation

proceeding as a different immigration judge was initially scheduled

to preside over the case, that he was denied access to a transcript

of the deportation hearing, that the immigration judge refused to

consider Momoh’s health condition, and that his bond was excessive.

 

4See 8 U.S.C. § 1252(g).

3

Momoh filed a petition for writ of habeas corpus on March 31, 1998,

challenging his custody status and order of deportation. He

alleged a variety of grounds for habeas relief.3 

The magistrate judge recommended dismissal for lack of

jurisdiction because the Immigration and Nationality Act ("INA"),

§ 242(g),4 barred habeas jurisdiction over Momoh’s petition

challenging his order of deportation. The magistrate judge also

determined that Momoh failed to demonstrate a constitutional

violation supporting habeas relief. Momoh filed objections to the

magistrate judge’s recommendation, arguing that the Suspension

Clause prevented the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA") from removing all access to
 

5Momoh filed "supporting objections" to the magistrate judge's

recommendations on November 9, 1998, and he filed a notice of

appeal to this court November 10, 1998. Objections to a magistrate

judge's recommendations filed within ten days of the entry of

judgment by the district court may be construed as a motion to

reconsider the judgment. See United States v. Gallardo, 915 F.2d

149, 150 n.2 (5th Cir. 1990). A motion to reconsider arises under

Fed. R. Civ. P. 59 if filed within ten days of the entry of

judgment, without regard to the label given the motion. See

Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). A

motion to alter or amend the judgment under Rule 59 tolls the time

for filing a notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(iv).

The record does not show that the district court took any action

with respect to the "supporting objections." A Rule 59(e) motion

may suspend the notice of appeal until the entry of an order

disposing of the motion. See Burt v. Ware, 14 F.3d 256, 260 (5th

Cir. 1994). We do not construe Momoh's "supporting objections" as

a motion under Rule 59(e) because the objections do not seek to

alter or amend the judgment.

 

6Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th

Cir. 1993).

 

7Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997).

4

habeas review and that the court had jurisdiction over his

petition. On November 5, 1998, the district court issued an order

adopting the magistrate judge’s recommendation.5 Momoh timely

filed a notice of appeal.

II.

We review de novo the district court's dismissal of a habeas

corpus petition.6

Momoh's petition is governed by the transitional rules of the

IIRIRA. The IIRIRA's transitional rules apply to persons whose

deportation proceedings began before April 1, 1997, and ended more

than 30 days after September 30, 1996.7 Since the INS commenced
 

8INA § 242(g) provides that “no court shall have jurisdiction

to hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against

any alien under this chapter.” 8 U.S.C. § 1252(g).

 

9See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 303 (5th

Cir. 1999).

 

10See 119 S.Ct. 936 (1999).

 

11See American-Arab, 119 S.Ct. at 943.

5

deportation proceedings against Momoh March 11, 1997, and the BIA

disposed of his appeal March 19, 1998, his case arises under the

transitional rules. One of IIRIRA's permanent rules, INA §

242(g),8 applies to cases brought under the transitional rules of

the IIRIRA.9 

The district court dismissed Momoh's petition because it

determined that it lacked jurisdiction under § 1252(g). Since

then, the Supreme Court has decided Reno v. American-Arab AntiDiscrimination Commission,

10 in which the Court interpreted §

1252(g) to bar jurisdiction over the “three discrete actions”

specified in the statute: the commencement of proceedings, the

adjudication of cases, and the execution of removal orders.11 The

government argues that the district court lacked jurisdiction over

Momoh’s habeas petition because jurisdiction would interfere with

the execution of a deportation order. However, Momoh’s habeas

petition seeks to attack his deportation proceeding rather than the
 

12For the first time on appeal, the government argues that the

district court lacked habeas jurisdiction because Momoh is not a

criminal alien. We may consider this challenge to the district

court's jurisdiction for the first time on appeal. See Giles v.

NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999).

 

13See Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir.

1998).

 

14See 8 U.S.C. § 1227(a)(1)(A) and (B).

 

15The INS also sought to deport Momoh for having committed two

crimes involving moral turpitude, which is a basis for deportation

under INA § 241(a)(2)(A)(ii). Section 309(c)(4)(G) of the IIRIRA's

transitional rules specifies that ground for deportation as one for

which there may be no appeal. However, the immigration judge found

that the record supported a finding that Momoh had been convicted

of only one crime involving moral turpitude.

 

16Under IIRIRA § 309(c)(4)(G),

there shall be no appeal permitted in the case of an alien who

is inadmissible or deportable by reason of having committed a

criminal offense covered in section 212(a)(2) [8 U.S.C. §

1182(a)(2)] or section 241(a)(2)(A)(iii), (B), (C), or (D) [8

6

execution of the order, so § 1252(g) does not deprive this court of

jurisdiction. 

Although the district court erred, we find that the court

lacked habeas jurisdiction because direct review was available to

Momoh under the IIRIRA's transitional rules.12

The IIRIRA's transitional rule § 309(c)(4)(G) precludes direct

appeals of deportation orders for aliens convicted of specified

offenses.13 Momoh was ordered deported for violation of INA §

241(a)(1)(A) and (B),14 for reentering the United States after

deportation without consent and for entry without inspection.15

These are not among the offenses for which the IIRIRA's

transitional rule § 309(c)(4)(G) precludes a direct appeal.16 Momoh
U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or (D)] of the

Immigration and Nationality Act (as in effect as of the date

of the enactment of this Act), or any offense covered by

section 241(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] of

such Act (as in effect on such date) for which both predicate

offenses are, without regard to their date of commission,

otherwise covered by section 241(a)(2)(A)(i) [8 U.S.C. §

1227(a)(2)(A)(i)] of such Act (as so in effect).

 

17See 190 F.3d 299 (5th Cir. 1999).

 

18See 190 F.3d at 306.

 

19See Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir.

1999)(per curiam).

7

could have appealed his deportation order, although he failed to do

so.

Since Momoh could have sought direct review, he may not obtain

habeas review. In Requena-Rodriguez v. Pasquarell,

17 we held that

Congress did not strip the courts of habeas jurisdiction under the

transitional rules of the IIRIRA in cases to which § 1252(g) does

not apply.18 Section 1252(g) does not apply to Momoh's case.

However, there is no habeas jurisdiction under the transitional

rules when direct review is available.19 The district court did not

have habeas jurisdiction under 28 U.S.C. § 2241 because direct

review was available to Momoh. 

Momoh's Suspension Clause challenge also fails because he

could have sought direct review. Although the transitional rules

deprive the courts of habeas jurisdiction over Momoh's case, those
 

20See Richardson v. Reno, 180 F.3d 1311, 1315-16 (11th Cir.

1999)(interpreting IIRIRA's permanent rules).

8

rules offer him judicial review that fulfills the guarantee of the

Suspension Clause.20

III.

The district court lacked jurisdiction over Momoh’s habeas

petition because he is not a criminal alien and direct appeal was

available to him. Under the transitional rules of the IIRIRA, he

could not seek habeas review of his deportation. We AFFIRM the

dismissal of his habeas petition. All outstanding motions are

DENIED.

AFFIRMED.