In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3031

PEDRO MEDELLIN-REYES,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

No. 05-4438

RICARDO TORRES-ACOSTA,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petitions for Review of Orders of the

Board of Immigration Appeals

____________

SUBMITTED JANUARY 5, 2006—DECIDED JANUARY 24, 2006

____________

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

PER CURIAM. These two proceedings began when aliens

who were awaiting removal filed petitions for writs of
2 Nos. 05-3031 & 05-4438

habeas corpus. See INS v. St. Cyr, 533 U.S. 289, 298-314

(2001). Before either district court had reached a final

decision, the Real ID Act of 2005 went into force, eliminating the jurisdiction on which these petitions rested. Section

106(a) of the new law, 119 Stat. 231, 310-11 (May 11, 2005),

amends several provisions of the United States Code to

foreclose the use of 28 U.S.C. §2241 to obtain review of

removal orders and their implementation. Section 106(c) is

a transition rule:

If an alien’s case, brought under section 2241 of

title 28, United States Code, and challenging a final

administrative order of removal, deportation, or

exclusion, is pending in a district court on the date

of the enactment of this division, then the district

court shall transfer the case (or the part of the case

that challenges the order of removal, deportation,

or exclusion) to the court of appeals for the circuit

in which a petition for review could have been

properly filed under section 242(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1252), as

amended by this section, or under section

309(c)(4)(D) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (8 U.S.C.

1101 note). The court of appeals shall treat the

transferred case as if it had been filed pursuant to

a petition for review under such section 242, except

that subsection (b)(1) of such section shall not

apply.

Each district court transferred the matter to us under this

subsection.

In 1995 an immigration judge ordered Ricardo TorresAcosta deported to Mexico. He waived his right to review by

the Board of Immigration Appeals and was deported as

ordered. Since then he has repeatedly reentered the United

States by stealth and, when caught, has been summarily
Nos. 05-3031 & 05-4438 3

returned on the authority of the 1995 order. His most recent

re-entry led to criminal prosecution and conviction. While

serving his sentence of 70 months’ imprisonment, TorresAcosta filed the petition under §2241 that has been transferred to us. We “treat the transferred case as if it had been

filed pursuant to a petition for review under . . . section

242”. The problem is that §242 permits a petition for review

only after the Board of Immigration Appeals has rendered

a decision, see §242(d)(1), 8 U.S.C. §1252(d)(1), and TorresAcosta never sought review by the Board—not in 1995, not

by a belated request any time since.

Nothing in the Real ID Act or §242 authorizes courts

of appeals to review immigration judges’ decisions. The

Attorney General therefore has asked us to dismiss the

petition. Exhaustion of administrative remedies was a

requirement long before the Real ID Act. Instead of using those remedies, Torres-Acosta waived them. He

blames his lawyer (actually a law student under a teacher’s

supervision) for not doing a better job in 1995 but has not

taken any of the steps that the Board requires to obtain

reconsideration based on ineffective assistance of counsel.

See Matter of Lozada, 19 I&N Dec. 637 (1988); Matter of

Assaad, 23 I&N Dec. 553 (2003). And his assertion that he

might be able to obtain citizenship derivatively through his

mother not only is unsupported by evidence but also is

beside the point. Whatever Torres-Acosta might be able to

do, he has not actually done. He is not a citizen of the

United States and is not entitled to be here. The motion to

dismiss is granted.

Pedro Medellin-Reyes entered the United States lawfully

in 1991 but within 18 months had been convicted of possessing cocaine with intent to distribute that drug. Immigration officials began deportation proceedings based on

that conviction. He sought discretionary relief under

§212(c), 8 U.S.C. §1182(c), but the immigration judge denied

that application after learning that in 1995 Medellin-Reyes
4 Nos. 05-3031 & 05-4438

was convicted of another cocaine offense. By the time the IJ

rendered his decision, the Antiterrorism and Effective

Death Penalty Act of 1996 had amended the immigration

laws to preclude §212(c) relief for aliens convicted of

multiple drug crimes. The Board of Immigration Appeals

dismissed his appeal in 1997, stating that Medellin-Reyes

is ineligible for discretionary relief. He did not seek judicial

review of that decision—but he did remain in the United

States, apparently because he is still in prison, and in 2004

filed the petition that has been transferred to us.

Medellin-Reyes contends that he is entitled to a remand

so that the agency may decide whether to permit him to

stay notwithstanding his convictions. The basis of this

request is another portion of St. Cyr, 533 U.S. at 314-26,

holding that the 1996 legislation does not apply to

aliens whose convictions rest on pre-enactment guilty pleas.

That portion of St. Cyr, unlike the portion concerning the

use of §2241 to obtain review by district courts, has not

been affected by intervening legislation. The Attorney

General agrees with Medellin-Reyes’s position and has

asked us to send the matter back to the Board.

We asked the parties for supplemental memoranda

because Medellin-Reyes’s long delay in seeking any judicial review raised a jurisdictional question. Stone v. INS,

514 U.S. 386 (1995), holds that the time limit for a petition to review the Board’s order is jurisdictional. MedellinReyes let that time pass in 1997 without action. If his

2004 collateral attack is treated as a belated petition, it is

untimely. The parties agree, however, that the last clause

of §106(c) makes Stone inapplicable. Here is the full last

sentence: “The court of appeals shall treat the transferred

case as if it had been filed pursuant to a petition for review

under such section 242, except that subsection (b)(1) of such

section shall not apply.” Subsection (b)(1) contains the time

limit, which therefore “shall not apply.” This means that all

collateral proceedings pending on May 11, 2005, when the
Nos. 05-3031 & 05-4438 5

Real ID Act took effect, and transferred to courts of appeals

under §106(c), must be treated as timely petitions for

review, no matter how long it has been since the Board

rendered its decision. Collateral proceedings filed on or

after May 11, however, will be dismissed outright; the

window for belated judicial review has closed.

We therefore grant the petition filed by Medellin-Reyes,

No. 05-3031, and remand with instructions that the

agency consider on the merits his application for §212(c)

relief. See INS v. Ventura, 537 U.S. 12 (2002). The petition filed by Torres-Acosta, No. 05-4438, is dismissed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-24-06