1 Local Rule 47.5 provides: “The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled principles oflaw imposes needless expense

on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined

that this opinion should not be published. 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

 

No. 95-30262

Summary Calendar

 

DAVID MARCIANO-YISHAI,

Petitioner-Appellant

v.

KEITH HALL, Warden, et. al.

Respondents-Appellees.

 

On Appeal from the United States District Court

for the Western District of Louisiana

(94-CV-470)

 

December 15, 1995

Before WISDOM, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:1

Petitioner/appellant, David Marciano-Yishai, seeks review of the dismissal of his

habeas corpus petition. We find no error in the district court’s decision.

I.

David Marciano-Yishai(“Yishai”), a native ofMorocco and a citizenofIsrael, entered

this country legally in 1967. In the ensuing years, Yishai was convicted of numerous offenses in

Florida, Minnesota, and Wisconsin. Based on these convictions, on December 17, 1993, the United

States Immigration and Naturalization Service (“INS”) obtained an order to deport Yishai to Israel,

with an alternate deportation order to Morocco. Yishai appealed that decision to this court, which
 

2 Marciano v.Immigration andNaturalization Service, Docket No.: 94-40466 (5th Cir. 1995).

Section 1105(a) of 8 U.S.C. requires that all petitions for judicial review of administratively final

orders of deportation be brought pursuant to 28 U.S.C. § 2341 et. seq. Exclusive jurisdiction for this

review is vested in the Court of Appeals. 28 U.S.C. § 2342.

 

3 Record at 19-21.

 

4 Record at 25-27.

 

5 That statute provides that , “[a] second or successive [habeas corpus] petition may be

dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior

determination was on the merits or, if new and different grounds are alleged, the judge finds that the

failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.”

2

affirmed his deportation order on March 31, 1995.2 While the deportation proceedings were

pending, Yishai was taken into custody and denied bond based on an immigration judge’s

determination that Yishai was a poor bond risk.

On March 14, 1994, Yishai filed in the U.S. District Court for the Western District

of Louisiana, a habeas corpus petition contending that: 1) ordering his deportation in part because

of an earlier, pardoned, conviction violates the concept of double jeopardy; 2) the deportation

proceedings in general violated his right to due process; and 3) the immigration judge should have

appointed counsel for him. Yishai later amended his petition to add a fourth argument that it was

improper to detain him without bond while awaiting final review of his deportation order. 

This petition was Yishai’s fourth habeas corpus application. Therefore, the district

court ordered Yishai to show cause why the issuesraised in the present petition could not have been

raised in one of his earlier applications for relief.3 Yishai responded by stating that the INS had

prevented him from doing so by reading and detaining his mail, and by keeping him in solitary

confinement.4

On July 18, 1994, the district judge dismissed Yishai’s original three contentions

pursuant to Rule 9(b) of 28 U.S.C. § 2254, finding that Yishaisought to re-urge claimsrelated to the

convictions and facts underlying his retainer.5 The district court dismissed Yishai’s final claim on

March 2, 1995, finding that facts of Yishai’s case supported the immigration judge’s decision to deny

bond. Yishai timely appealed. 
 

6 Marciano v. I.N.S., supra, note 2.

 

7 Yishai filed his appellate brief in this court two weeks after deportation order was final. The

brief still clearly appeals the validity of his detention. This court therefore interprets Yishai’s brief

as challenging both his earlier detention, and his continued detention pending actual deportation. 

 

8

8 U.S.C. §1252(c). That statute provides in relevant part:

When a final order of deportation . . . is made against any alien, the

Attorney General shall have a period of six months from the date of

such order, . . . within which to effect the alien’s departure form the

United States, during which period, at the Attorney General’s

discretion, the alien may be detained, released on bond in an amount

containing such conditions as the Attorney General may prescribe or

released on such other condition as the Attorney General may

prescribe. Any court of competent jurisdiction shall have authority to

review or revise any determination of the Attorney General

concerning detention, release on bond, or other release, during such

six-month period. . . (emphasis added).

 

9

Id.

 

10 Id.

3

II. 

A. Yishai’s Bail Application:

Yishai’s initial habeas petition argued that the immigration law judge incorrectly

decided to hold Yishai without bond pending the final determination of his deportability. Since filing

that petition, however, Yishai’s deportation order has become final.6 Therefore, we find that the

validity of this bond decision is now moot.

This court also does not have jurisdiction to addressthe validity of Yishai’s detention

since his deportation has become final.7 Once the INS obtains a final order of deportability against

an alien, the Attorney General may again choose to detain the alien without bond pending actual

deportation.8 This custody decision is separate from the decision to detain an alien while deportation

proceedings are pending.9 As such, it requires separate judicial review.10 Thus, Yishai is now being

detained pursuant to a different administrative decision from the one he initially challenged. Yet,

Yishai has not sought review of this later custody decision in either the immigration court or the
 

11 West of England Ship Owners Mut. Ins. Ass’n v. American Marine Corp., 981 F.2d 749 (5th

Cir. 1993).

 

12 Yishai arguesfor the first time on appeal that his earlier habeas corpus petitions predated his

current detention, and were unrelated to his present deportation order.

 As discussed above, however, this court will not hear an appeal on an issue that was not first raised

to the district court.

 West of England, 981 F.2d at 749. Therefore, we will not address this argument.

 

15 Marciano v. INS, supra, note 2.

 

16 8 U.S.C. § 1105a(c); Garcia v. Boldin, 691 F. 2d 1172, 1180 (5th Cir. 1982).

 

17 The present petition was filed on March 14, 1994. Yishai did not file his petition for direct

review in this court until May 20, 1994. 

4

district court. This court may not address an issue presented for the first time on appeal.11

Accordingly, we dismiss Yishai’s claims regarding the decisions to hold him without bond.

B. Yishai’s Due Process, Double Jeopardy, and Right to Counsel claims:

It is undisputed that Yishaihasfiled three earlier habeas corpus petitions withtheU.S.

District Court in for the Western District ofLouisiana. Yet, when ordered to show cause why he was

not able to present the current claims in those earlier petitions, Yishai responded only with

allegations that the INS had intercepted his mail and kept him in solitary confinement.120. Reply

Brief at 1. 130. West of England, 981 F.2d at 749.14 These allegations, even if true, do not

adequately explain why the previous petitions were incomplete. Thus, the district court did not

abuse its discretion in dismissing Yishai’s complaint.

As an alternate ground for our holding today, we note that all of Yishai’s remaining

claims should be dismissed because they all relate to the merits of his deportation order, a decision

that this court has already reviewed.15 A court may not entertain a habeas petition regarding the

merits of a deportation order unless it raises new grounds which could not have been entertained on

the prior direct appeal of the merits.16 Yishai filed the present petition before filing for direct review

of the merits in this court.17 Therefore, it is impossible for Yishai to have met this requirement.

Accordingly, the remaining claims in his petition should be dismissed.
5

III.

For the reasons discussed above, this court AFFIRMS the district court’s dismissal

of Yishai’s habeas corpus petition.