United States Court of Appeals

Fifth Circuit



## FILED

January 12, 2006

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-50596

_______________



### I SAAC 

### R AMIREZ 

### -M OLINA



### ,

Petitioner-Appellee,

VERSUS

JAMES ZIGLAR; Et Al,

Respondents,



### G RACE 

### W INFREY



### ,

I NTERIM F IELD O FFICE D IRECTOR FOR D ETENTION AND R EMOVAL

, B UREAU OF I MMIGRATION AND C USTOMS E NFORCEMENT

, D EPARTMENT OF H OMELAND S ECURITY

,



### Respondent-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________

Before G ARWOOD

, S MITH , and D EMOSS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge: Isaac Ramirez-Molina challenges the reinstatement of a removal

order. Treating this

a ction as a petition for review, we co nclude2

that we are without jurisdiction, so we dismiss

the petition.

Ramirez-Molina was removed from the

United States in 1999 on the basis of a conviction o f driving while intoxicated (“DWI”).

Shortly after removal, he reentered the United

States in violat io n of federal law. The Immigration and Naturalization Servic e (“INS”)

t ook him into custody and initiated proceedings to reinstate the removal order.

After the removal, but before the INS

sought reinstatement of the ord e r, this court

determined that a DWI convicti on is not

ground for removal under the releva nt immigration statute. Citing that decision, RamirezMolina brought a habeas corpus action challenging the reinstatement of the removal order

on due proces s grounds. The district court

granted habeas relief.

Pursuant to the REAL ID Act, we reverse

the district court’s finding of habeas jurisdiction and instead consider the challenge to the

reinstatement of th e removal order as a petition for review. Finding no jurisdiction to entertain the merits of the claim, we dismiss the

petition.

I.

Ramirez-Molina firs t entered the United

States in 1984 and became a lawful permanent

resident in 1991. In August 1999 he was convicted in state court o f DWI, a third-degree

felony, and sentenced to ten years’ co nfinement, suspended and probate d to five years’

community supervision. At that time he had

bee n convicted of DWI on at least three

occasions. On December 6, 1999, the INS 1 issued a

notice to appear to Ramirez-Molina, asserting

that he was removable pursuant t o 8 U.S.C.

§ 1227(a)(2)(A)(iii) on the ground that he had

been convicted of an “aggrav at ed felony,”

which is defined by 8 U.S.C. § 1101(a)(43)(F)

to include a “crime of violence” with a term of

imprisonment of at least on e year. A withdrawn opinion of this court had indicated that

DWI i s a crime of violence. S ee Camacho-Marroquin v. INS

, 188 F.3d 649, 652 (5th

Cir. 1999), withdrawn

, 222 F.3d 1040 (5th

Cir. 2000).

Ramirez-Molina did not contest removability but, in st ead, on December 22, 1999, submitted a Stipulated Request for Final Order of

Removal and Waiv er o f Hearing in which he

conceded that he was “removable as charged,”

waived the right to a hearing, accepted a writte n o rder of removal, and waived appeal of

that written order. On December 28, 1999,

the immigration judge granted the request for

a final order and ordered him removed to El

Salvador; he was removed on February 4,

2000.

About two weeks after his removal, Ramirez-Molina reentered the United States in violation of 8 U.S.C. § 1326(a) and was taken into custody by the INS on December 18, 2001.

The next day, the INS issued aNotice of Intent/Decision to Reinsta te Prior [Removal] Order pursuant to 8 U.S.C. § 1231(a)(5), which

authorizes such reinstatement by the Attorney

1 The INS ceased to exist on March 1, 2003.

Its enforcement functions have been assu med by

the Bureau of Immigration and Customs Enforcement (“BICE”), an agency within the Department

of Homeland Security. But, because the events in

this cas e took place before the reorganization of

immigration enforcement duties, we refer to the

agency as the INS.3

General when an alien illegall y reenters after

being r emo ved. After a reinstatement, §

1231(a)( 5) allows the Attorney General to

remove the alien without additional proceedings. Ramirez-Molina was also indicted for

ill egal reentry under § 1326, but the district

court dismissed the indictment.

On May 13, 2002, Ramirez-Mo lina filed

motions with the Executive Office for Immigration Review requesting a stay of removal

and asking that the 1999 removal proceedings

be reopened and terminated on the basis of

United States v. Chapa-Garza

, 243 F.3d 921

(5th Cir. 2001), in which a panel of this court

reached a conclusion opposite to that reached

in the withd r awn opinion in Camacho-Marroq uin and stated that DWI is not a crime of

violence. Accordingly, in t his circuit a DWI

conviction is no longer an aggrav at ed felony

that triggers removability.

Ramirez-Molina contended that ChapaGarza applies retroactively to his 1999 removal proceedings, rendering those proceedings,

and therefore reinstatement of the resulting removal order, invalid. The immigration judge

g ranted a stay of removal on May 14, 2002,

without ruling on the motion to reopen and

terminate. On May 24, 2002, Ramirez-Molina

file d his habeas petition, contending that

(1) the 1999 removal

o rder was invalid because, given our subsequent decision in Chapa-Garza

, it was based on an erroneous interpr et at io n of the law; (2) the invalidity of the

underlying removal order me ant that his reentry was lawful and outside the scope of

8 U.S.C. § 1231(a)(5) (thus precluding reinstatement of the p rior order); and (3) the reinstatement proceedings w ere in violation of

due process because they were initiated on the

basis of an invalid removal order.

Adopting the report of a magistrate judge, the district court conditionally granted habeas

relief, holding that pursuant to INS v. St. Cyr

, 533 U.S. 289, 311 (2001), it had jurisdic t ion

under 28 U.S.C. § 2241 to review the removal

order in a habeas proceeding. With regard to

the merits, the court held that Chapa- Garza

applies retroactively to the 1999 removal proceedings, rendering them “f u ndamentally unfair” because the INS misinterprete d the law.

On that b asis, the court determined that the

1999 removal

order was void a b initio and

therefore held that reinsta t ement of the order

was improper. The issuance of the writ was

conditioned on the government’s failure to vacate both the underlying order of removal and

the reinstatement order within ten days.

II.

After the government filed its appeal, Congress on May 11, 2005, enacted the REAL ID

Act, Pub. L. No. 109-13, 119 Stat. 231, which

amends the Immigrat io n and Nationality Act

(“INA”) by explicitly foreclosing habeas review of removal orders and by providing that

a petition for review is the sole and exclusive

means of judicial review for all removal orders

except those issued pursuant to 8 U.S.C. §

1225(b)(1). S ee Pub. L. No. 109-13, 119 Stat.

231, 310, § 106(a)(1)(B). More specifically,

the REAL ID Act amends 8 U.S.C. § 1252(a)-

(2)(C) to provide that the wholesale preclusion

of judicial review where a removal order is

based on, inter alia

, the alien’s commission of

an aggravated felony incl

u des a preclusion of

habeas review. S ee Pub. L. N o. 109-13, 119

Stat. 231, 310, § 106(a)(1)(A)(ii). The REAL

ID Act thus supplies, in this context, the “clear

statement of congressional intent to repeal habeas jurisdiction” that the St. Cyr Court found

lacking.

Aside from addressing the clari t y with

which congressional intent needs to be expressed, the Court in St. Cyr also asserted that4

if the jurisdicti o nal provisions of the INA did

in fact preclude all judicial review in certain

circumstances, as they now do as a result o f

the REAL ID Act, then Sus pension Clause

conc erns would be implicated with regard to

“pure questions of law.” St. Cyr , 533 U.S. at

300. The REAL ID Act addresses this consideration in § 1252(a)(2)(D), which provides

that

[n]othing in subparagraph (B) or (C), or in

any other provision of this chapter (other

than this section) which limit s or eliminates

judicial review, shall be construed as precluding review of constitutional claims or

questions of law raised upon a petition for

review filed with an appropriate court of

appeals in accordance with this section.

Thus, although habeas juris dicti on to review removal orders issued on the basis of an

alien’s conviction of an aggravated felony has

been foreclosed by the REAL ID Act, federal

court s of appeals now have jurisdiction, subject to other provisions of § 1252 and jurisdictional conditions outside the scope of the INA,

to consider, on a petition for review, constitutional claims and questions of law with regard

to such orders on a petition for review. Congress specified that the prov i sions of the

REAL ID Act were to take effect immediately

and retroactively upon enactment. S ee Pub. L.

No. 109-13, 119 Stat. 231, 311, § 106(b).

As a consequence of this new jurisdictional

framework, “[w]e can no longer consider

. . . challenge[s] [to removal orders] in the context

o f habeas review.

. . . Rather, we must now

determine whether [petitioner’s] ch a llenge is

prop erly converted into a petition for review

under the REAL ID Act and, if so, whether we

have jurisd i ction to entertain that petition.”

Rosales v. BICE

, 426 F.3d 733, 736 (5th Cir.

2005) (per curiam), cert. denied , 2006 U.S. L EXIS 619 (U.S. Jan. 9, 2006). 2 Although

Congress provided that a habeas petition pending before a district court as of the REAL ID

Act’s effe c tive date was to be transferred to

the appropriate court of appeals and converted

int o a petition for review, s ee Pub. L . No.

109-13, 119 Stat. 231, 311, § 106(c), i t di d

not specify

what was to happen to habeas

petitions that were already on appeal as of that

effective date.

Following the Third and Ninth Circuits, 3

we have decided that “despite Congress’s silence on this issue, habeas petitions on appeal

as of May

11, 2005, . . . are properl yconverted into petitions for review.” R osales

, 426

F.3d at 736. Exercising our undeniable appellate jurisdiction over the government’s appeal

of the grant of habeas relief, we therefore

reverse the district court’s finding of habeas

jurisdiction and con vert the instant habeas

appeal into a

petition for review. 4 We turn

2 On the basis of the REAL ID Act, the government filed a motion to convert the habeas appeal

into a petitio n for review. Ramirez-Molina does

not oppose con version. Nevertheless, because

conversion implicates jurisdictio nal issues, we must

determine for ourselves whether it is appropriate.

3 See Alvarez-Barajas v. Gonz ales , 418 F.3d

1050 , 1052-53 (9th Cir. 2005); B onhometre v.

Gonzales , 414 F.3d 442, 446 (3d Cir. 2005).

4 At oral argument, there was so m e confusion

with regard to whether we should convert the ha

b eas petition into a petition for review of the or i

ginal 1999 removal order or of the reinstatement of

that order. We conclude that Ramirez-Molina’s

challenge is now properly converted into a petition

for review of the reinstatement. The initial habeas

petition demonstrat e s that he is challenging reinstatement on the ground that the un derlying removal order is invalid. Although the validity of the

(continued...)5

now to whether we have jurisdiction to entertain the petition for review.

III.

We review questions of law as to jurisdict ion de novo

. S ee Bissonnet Invs., LLC v

. Quinlan

, 320 F.3d 520, 522 (5th Cir. 2003);

In re Liljeberg Enters., Inc.

, 304 F.3d 410,

423 (5th Cir. 2002). We utilize that standard

of review here.

A.

Nothing in the REAL ID Act precludes our

jurisdiction over this petition. As we noted in

the previous section, the REAL ID Act allows

the courts of appeals to review constitutional

and legal claims regarding removal orders even

where the Act renders an order otherwi se

unreviewable. Because Ramirez-Molina challenges reinstatement of the 1999 removal order on constitutional and legal grounds, we are

not barred from re viewing his claims merely

because the INA, as amended by the REAL ID

Act, generally forecloses all judicial review of

removal orders issued on the basis of an alien’s

con vict ion of an aggravated felony. S ee 8

U.S.C. § 1252(a)(2)(C), (D).

The REAL ID Act has in fact removed one

barrier to our jurisdiction that might otherwise

have existed. Title 8 U.S.C. § 1231(a)(5) specifies t hat when the Attorney General reinst ates an order of removal after an alien reenters the United States in violation of that order, the or der “is not subject to being reopened or reviewed.” In the aftermath o f S t. Cyr

, questions arose about the circumstances

under which § 1231(a) (5) can operate to

preclude judicial review of an un derlying

removal order in the context of a habeas proceeding regarding rein statem ent. 5 The probl em was that if there were no judicial review

availabl e to an alien in the initial removal

proceedings, then § 123 1 (a)(5)’s foreclosure

of judicial review of constitution al and legal

claims regarding that order after reinstatement

arguab ly would implicate the Suspension

Clause concerns articulated in St. Cyr

. 6

The REAL ID Act renders that discussion

moot by codifying § 1252(a)(2)(D). In addition to carving out exceptions to the jurisdiction-stripping provisions of § 1252 for constitutional and legal claims, § 1252(a )(2)(D)

states that “[no] other provision of this chapter

. . . which limit s or eliminates judicial review, shall be construed as precluding constitutional claims or claims of law.” Secti on

1231 is i n t he same chapter as § 1252. Because § 1231(a)(5) limit s judicial review,

§ 1252(a)(2)(D) prevents its operati on in cases, such as this one, in which the validity of an

underlying order is questioned on constitutional or legal grounds.

B.

The REAL ID Act does not, however, foreclose the a pplicability of two other jurisdictional barriers: the req uirement that administrative remedies be exhau st ed before an alien

seeks judicial review of a removal orde r 7 and

4 (...continued)

1999 removal order is thus central to the claims, it

is the INS’s decision to reinstate that order that is

the subject of dire ct attack. Converting a habeas

petition into a petition for review changes the form,

but not the substance, of a c hallenge to executive

action. 5 See Smith v. Ashcroft

, 295 F.3d 425 (4th Cir.

2002); Alvarenga-Villalobos v. Ashcroft

, 27 1 F.3d

1169, 1173 (9th Cir. 2001).

6 See Smith , 295 F.3d at 428-29.

7 A court may review a final order of r emoval

(continued...)6

the fact that the init

ial removal proceedings

must constitute a gross miscarriage of justice,

Lara v. Trominski

, 216 F.3d 487, 491 (5th Cir.

2000), for this court to entertain a collateral

attack on a removal order. Given our conclusion, which we will exp lain, that there is no

gross miscarriage here, we pretermit discussion of the exhaustion question.

In Lara

, id.

, we held that “[w]e can review

[a] collateral challenge to [a] prior deportati on

order if and only if that deportati on involved a

gross miscarriage of jus tice.” 8 RamirezMolina is challenging reinstatement of the

1999 removal order on the ground that the already-executed or der is invalid. Thus, even

presented in the form of a petition for review

instead of a habeas petition, the crux of his

claim constitutes a collateral attack on the

1999 removal order. Accordingly, in the context of a petition for review of a reinstatement

decision, we can review the validity of the underlying removal order only if Ramirez-Molina

establishes that there was a gross miscarriage

of justice in the initial proceedings. 9 This court has yet to develop a precise standard for what constitutes a gross miscarriage

of justice sufficient to allow us to consider the

merits of a petitioner ’s collateral attack on a

removal order. For purposes of this case, it is

enough to note one crucial consideration that

leads us to conclude that there was no gross

miscarriage of justice in the 1999 removal proceedings: Ramirez-Molina failed to contest his

removability in those proceedings.

There, Ramirez-Molina conceded removabilit y and waived appeal of the removal order.

“[S]uch waivers are a critical factor in denying

claims that deportati on proceedings constituted a gross miscarriage of justice.” Id. at 494.

Our holding in Steffner

provides the basis for

this comment in Lara

. Although the statutory

framework in effect at the time of Steffner was

somewhat different from the one governing

this case, the relevant facts underlying Steffner

are remarkably similar to those at issue here.

Steffner was deported in 1936 for past

membership in the Communist Party. The Supreme Court then determined that only present

7 (...continued)

only if “the alien has exhausted all administrative

remedies available to the alien as of right.”

8 U.S.C. § 1252(d).

8 See also Ponce-Gonzalez v. INS

, 775 F.2d

1342, 1345 (5th Cir. 1985); United States ex rel.

Steffner v. Carmichael , 183 F.2d 19, 20 (5th Cir.

1950).

9 In the context of a criminal indictment for illegal reentry u nder § 1326, courts have explicit

statutory authority to entertain and grant a motion

to suppress the un derlying removal order that allegedly renders reentry illegal if a consideration of

certain factors mak

e s the order invalid. The factors courts must consider arise from United States

v . Mendoza-Lopez , 481 U.S. 828 (1987), but the

(continued...) 9 (...continued)

statutorily-granted authority to entertain a collateral attack on a removal order underlying a criminal indictment does not extend to a collateral attack

on a removal order underlying a reinstatement

order, which is civil in nature. S ee id. at 839 (“We

note parenthetical ly that permitting collateral

challenge to the validity of deportatio n orders in

proceedings under § 1326 does not create an opportunity for aliens to delay deportation, since the

collateral challenge we recognize today is available

only in criminal proceedings ins tituted after reentry.”). Our precedents that establish the factors to

be considered under M

endoza-Lopez to allow a

collateral attack on an underlying removal order in

criminal proceedings are therefore irrelevant to this

case.7

membership in a subversive organization can

render an alien deportable. S ee Kessler v

. Strecker

, 307 U .S. 607 (1939). Wi thout the

permission of the Attorney General to reapply

for admission, Steffner reen tered the Uni ted

States in 1941. Immigration authorities took

him into custody and initiated deportati on

proceedin gs on the basis of the 1936 order.

Steffner argued that he could not be deported

because Strecker had rendered the 1936 order

voi d ab initio . This court refused to find a

gross mi s carriage of justice sufficient to warrant collateral

review of the 1936 order, in

large part because Steffner

did not elect to test the validity of his 1936

deportati on order. He had his day befo re

the immigra t io n authorities, who decided

that he should be deported. There is no

showing t hat his failure to test the validity

o f his order was due to any cause o ther

than his desire not to do so.

Steffner , 183 F.2d at 20-21.

The government contends that Steffner applies to this case and yields the same result.

Ramirez-Molina counters that we cannot give

weight to his failure to contest the 1999 order

in the init ial proceedings because, unl ike the

alien in Steffner

, he had no chance to challenge

those proceedings in federal court. RamirezMolina’s attempt to disti n guish Steffner fails,

because this court had the power to rule in Ramirez-Moli na’s favor had he appealed here

after pursuing any required administrative

proce dures. Had he sought review in this

court before he was removed, we would have

had jurisdiction to consider his claim.

Notwithstanding the fact tha t § 1252(a)-

(2)(C) precludes judicial review of r emoval

orders issued on the bas is of the alien’s commission of an aggravated felony, we retain jurisdict io n to determine our own jurisdiction.

Salazar-Regino v. Trominski , 415 F.3d 436,

443 (5th Cir. 2005). Whether an offense is an

aggravated felo ny is a jurisdiction-triggering

fact: If we determined t

hat DWI was not an

aggravated felony (as we eventually did in

Chapa-Garza ), § 1252(a)(2)(C) would not apply, and we could review an d vacate any removal order based on a DWI conviction. Camacho-Marroquin was not an absolute bar to

our ruling in Ramirez-Molina’s favor, because

we could have overruled that decision en banc.

In short, had Ramirez-Mo l ina appealed to

t his court, he could have attained the result

that was ultimately achieved by the petitioner

in Chapa-Garza

. The fact that Ramirez-Molina erroneously believed no avenue of federal

judicialreview was available is of no consequence. Because he failed t o contest his removability in the 1999 proceedings, he cannot

establish that there was a gross miscarriage of

justice in those proceedings. Therefore, we

have no jurisdiction t o entertain his collateral

challenge to the validity of the 1999 order, so

we find it unnecessary to discuss the merits of

that claim.

In summary, we REVERSE the di stri ct

court’s finding of habeas jurisdiction, convert

the habeas petition into a pe t it ion for review,

and DISMISS the petition for review for want

of jurisdiction.