United States Court of Appeals

Fifth Circuit

FILED

October 19, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50304

Summary Calendar

 

MYRVIN NYSUS, 

 

 Petitioner-Appellant, 

versus 

JOHN ASHCROFT, U. S. ATTORNEY GENERAL; BUREAU OF IMMIGRATION

AND CUSTOMS ENFORCEMENT; VINCENT J. CLAUSEN, Director 

Detention and Removal; 

 Respondents-Appellees. 

----------------------------------------------------------

MYRVIN NYSUS, 

 Petitioner-Appellant, 

versus

 

DEPARTMENT OF HOMELAND SECURITY; VINCENT J. CLAUSEN; 

ALFREDO CAMPOS; GLEN SHALEEN; CORRECTION CORPORATION 

OF AMERICA, (CCA); LANE BLAIR, 

 

 Respondents-Appellees. 

----------------------------------------------------------- 

MYRVIN NYSUS, 

 Petitioner-Appellant, 

versus 

VINCENT J. CLAUSEN, Director in charge of Bureau of Immigration

and Customs Enforcement; TOM RIDGE, Secretary of Homeland 

Security, 

 Respondents-Appellees. 
No. 04-50304

-2-

* 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this opinion should not be published and is not precedent except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.

--------------------------------------------------------------

MYRVIN NYSUS, 

 

 Petitioner-Appellant, 

versus 

TOM RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; 

BUREAU OF CUSTOMS AND IMMIGRATION ENFORCEMENT; DETENTION 

& REMOVAL; VINCENT J. CLAUSEN, Director U.S. Field Office, 

El Paso Division, 

 

 Respondents-Appellees. 

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC Nos. EP-03-CV-256-FM

EP-03-CV-428-FM

EP-03-CV-503-FM

 EP-03-CV-361-FM 

--------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Myrvin Nysus seeks leave to proceed in forma pauperis (IFP)

on appeal and the appointment of counsel. The district court

dismissed Nysus’s 28 U.S.C. § 2241 petition and certified that

his appeal was not taken in good faith. 

Nysus, who has been deported pursuant to an order of

removal, argues that the conviction forming the basis for his

removal is not an aggravated felony, was not a final conviction,

and should not have been used to detain him. He contends that he

was denied due process in the immigration proceedings because his
No. 04-50304

-3-

attorney abandoned him and the judge was not impartial. He seeks

to have the order of removal reversed and to be returned to the

United States. 

Nysus also asserts that his Eighth Amendment rights were

violated while he was confined at the Correctional Corporation of

America Federal Detention Facility in Estancia, New Mexico (CCA). 

In particular, he asserts that, despite voicing safety concerns,

he remained detained at CCA where he was attacked by three

inmates and suffered serious head injuries. He also contends,

for the first time on appeal, that there was a delay of an hour

after the attack before he received medical treatment.

To proceed IFP, a litigant must be economically eligible,

and his appeal must not be frivolous. Carson v. Polley, 689 F.2d

562, 586 (5th Cir. 1982). Nysus was ordered removed pursuant to

8 U.S.C. § 1227(a)(2)(E)(E)(i), which provides for deportation of

an alien convicted of a stalking crime. Therefore, his assertion

that he should not have been deported for having committed an

aggravated felony is misplaced. Nysus’s stalking conviction was

final for immigration purposes at the time he was detained. See

Moosa v. INS, 171 F.3d 994, 1009-10 (5th Cir. 1999). 

Nysus’s attorney in the immigration proceedings was allowed

to withdraw after Nysus expressed his dissatisfaction with the

attorney’s representation. Nysus has not shown any prejudice

from the lack of representation during the remainder of his
No. 04-50304

-4-

immigration proceedings. See Goonsuwan v. Ashcroft, 252 F.3d

383, 385 n. 2 (5th Cir. 2001). 

Nysus does not address the district court’s denial of his

Federal Tort Claim Act (FTCA) claims for failure to exhaust his

administrative remedies. Therefore, he has abandoned any FTCA

claims on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). Additionally, Nysus has failed to specify any

acts of named individual respondents that would state a claim for

the alleged Eighth Amendment violations under Bivens v. Six

Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971). See Affiliated Prof’l Home Health Care Agency v.

Shalala, 164 F.3d 282, 286 (5th Cir. 1999). 

Because Nysus has not raised any nonfrivolous issues for

appeal, his motions for leave to proceed IFP and the appointment

of counsel are DENIED, and his appeal is DISMISSED AS FRIVOLOUS. 

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2.