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

_______________

ISAAC RAMIREZ-MOLINA,

Petitioner-Appellee,

VERSUS

JAMES ZIGLAR; Et Al,

 Respondents,

GRACE WINFREY,

INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL,

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

DEPARTMENT OF HOMELAND SECURITY,

Respondent-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________

Before GARWOOD, SMITH, and DEMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Isaac Ramirez-Molina challenges the reinstatement of a removal order. Treating this

action as a petition for review, we conclude
2

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 of driving while intoxicated (“DWI”).

Shortly after removal, he reentered the United

States in violation of federal law. The Immigration and Naturalization Service (“INS”)

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

After the removal, but before the INS

sought reinstatement of the order, this court

determined that a DWI conviction is not

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

on due process 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 the removal order as a petition for review. Finding no jurisdiction to entertain the merits of the claim, we dismiss the

petition.

I.

Ramirez-Molina first entered the United

Statesin 1984 and became a lawful permanent

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

felony, and sentenced to ten years’ confinement, suspended and probated to five years’

community supervision. At that time he had

been convicted of DWI on at least three

occasions.

On December 6, 1999, the INS1issued a

notice to appear to Ramirez-Molina, asserting

that he was removable pursuant to 8 U.S.C.

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

been convicted of an “aggravated 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 one year. A withdrawn opinion of this court had indicated that

DWI is a crime of violence. See 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, instead, on December 22, 1999, submitted a Stipulated Request for Final Order of

Removal and Waiver of Hearing in which he

conceded that he was “removable as charged,”

waived the right to a hearing, accepted a written order 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 hisremoval, 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 a Notice of Intent/DecisiontoReinstate 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 assumed by

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

of Homeland Security. But, because the events in

this case took place before the reorganization of

immigration enforcement duties, we refer to the

agency as the INS.
3

General when an alien illegally reenters after

being removed. After a reinstatement, §

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

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

illegal reentry under § 1326, but the district

court dismissed the indictment.

On May 13, 2002, Ramirez-Molina 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 withdrawn opinion in Camacho-Marroquin and stated that DWI is not a crime of

violence. Accordingly, in this circuit a DWI

conviction is no longer an aggravated felony

that triggers removability. 

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

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

granted a stay of removal on May 14, 2002,

without ruling on the motion to reopen and

terminate. On May 24, 2002, Ramirez-Molina

filed his habeas petition, contending that

(1) the 1999 removal order was invalid because, given our subsequent decision in Chapa-Garza, it was based on an erroneous interpretation of the law; (2) the invalidity of the

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

8 U.S.C. § 1231(a)(5) (thus precluding reinstatement of the prior order); and (3) the reinstatement proceedings were 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 jurisdiction

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 “fundamentally unfair” because the INS misinterpreted the law.

On that basis, the court determined that the

1999 removal order was void ab initio and

therefore held that reinstatement of the order

was improper. The issuance of the writ was

conditioned on the government’sfailure 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 Immigration 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 judicialreview for allremoval orders

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

1225(b)(1). See 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 thewholesale preclusion

of judicial review where a removal order is

based on, inter alia, the alien’s commission of

an aggravated felony includes a preclusion of

habeas review. See Pub. L. No. 109-13, 119

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

ID Act thussupplies, in this context, the “clear

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

lacking.

Aside from addressing the clarity with

which congressional intent needs to be expressed, the Court in St. Cyr also asserted that
4

if the jurisdictional provisions of the INA did

in fact preclude all judicial review in certain

circumstances, as they now do as a result of

the REAL ID Act, then Suspension Clause

concerns 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 limits 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 jurisdiction 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

courts of appeals now have jurisdiction, subject to other provisions of § 1252 and jurisdictional conditions outside the scope ofthe 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 provisions of the

REAL ID Act were to take effect immediately

and retroactively upon enactment. See 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

of habeas review. . . . Rather, we must now

determine whether [petitioner’s] challenge is

properly converted into a petition for review

under the REAL ID Act and, ifso, whether we

have jurisdiction to entertain that petition.”

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

2005) (per curiam), cert. denied, 2006 U.S.

LEXIS 619 (U.S. Jan. 9, 2006).2 Although

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

Act’s effective date was to be transferred to

the appropriate court of appeals and converted

into a petition for review, see Pub. L. No.

109-13, 119 Stat. 231, 311, § 106(c), it did

not specify what was to happen to habeas

petitionsthat were already on appeal as ofthat

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 properly converted into petitionsfor review.” Rosales, 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 convert 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 petition for review. Ramirez-Molina does

not oppose conversion. Nevertheless, because

conversion implicatesjurisdictional issues, we must

determine for ourselves whether it is appropriate.

3

See Alvarez-Barajas v. Gonzales, 418 F.3d

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

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

4 At oral argument, there was some confusion

with regard to whether we should convert the habeas petition into a petition for review of the original 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 demonstrates that he is challenging reinstatement on the ground that the underlying 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 jurisdiction de novo. See 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 legalclaimsregarding removalorders even

where the Act renders an order otherwise

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

not barred from reviewing his claims merely

because the INA, as amended by the REAL ID

Act, generally forecloses all judicial review of

removal ordersissued on the basis of an alien’s

conviction of an aggravated felony. See 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 that when the Attorney General reinstates an order of removal after an alien reentersthe United Statesin violation of that order, the order “is not subject to being reopened or reviewed.” In the aftermath of St.

Cyr, questions arose about the circumstances

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

preclude judicial review of an underlying

removal order in the context of a habeas proceeding regarding reinstatement.5

 The problem was that if there were no judicial review

available to an alien in the initial removal

proceedings, then § 1231(a)(5)’s foreclosure

of judicial review of constitutional and legal

claimsregarding that order after reinstatement

arguably 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 limits or eliminates judicial review, shall be construed as precluding constitutional claims or claims of law.” Section

1231 is in the same chapter as § 1252. Because § 1231(a)(5) limits judicial review,

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

underlying order is questioned onconstitutional or legal grounds.

B.

TheREALID Act does not, however, foreclose the applicability of two other jurisdictional barriers: the requirement that administrative remedies be exhausted before an alien

seeks judicial review of a removal order

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 direct attack. Converting a habeas

petition into a petition for review changes the form,

but not the substance, of a challenge to executive

action.

5

See Smith v. Ashcroft, 295 F.3d 425 (4th Cir.

2002); Alvarenga-Villalobos v. Ashcroft, 271 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 removal

(continued...)
6

the fact that the initial removal proceedings

must constitute a gross miscarriage of justice,

Lara v. Trominski, 216 F.3d 487, 491 (5thCir.

2000), for this court to entertain a collateral

attack on a removal order. Given our conclusion, which we will explain, 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 deportation

order if and only if that deportation involved a

gross miscarriage of justice.”8 RamirezMolina is challenging reinstatement of the

1999 removal order on the ground that the already-executed order 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 removalorder onlyifRamirez-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 ofjustice in the 1999 removal proceedings: Ramirez-Molina failed to contest his

removability in those proceedings. 

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

“[S]uch waivers are a criticalfactor in denying

claimsthat deportation 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 SupremeCourt then determined that onlypresent

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 under § 1326, courts have explicit

statutory authority to entertain and grant a motion

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

certain factors makes 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. See id. at 839 (“We

note parenthetically that permitting collateral

challenge to the validity of deportation orders in

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

collateral challengewe recognize today is available

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

be considered under Mendoza-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. See Kessler v.

Strecker, 307 U.S. 607 (1939). Without the

permission of the Attorney General to reapply

for admission, Steffner reentered the United

States in 1941. Immigration authorities took

him into custody and initiated deportation

proceedings on the basis of the 1936 order.

Steffner argued that he could not be deported

because Strecker had rendered the 1936 order

void ab initio. This court refused to find a

gross miscarriage 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

deportation order. He had his day before

the immigration authorities, who decided

that he should be deported. There is no

showing that his failure to test the validity

of his order was due to any cause other

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 initial proceedings because, unlike the

alien in Steffner, he had no chance to challenge

those proceedings in federal court. RamirezMolina’s attempt to distinguish Steffner fails,

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

after pursuing any required administrative

procedures. Had he sought review in this

court before he was removed, we would have

had jurisdiction to consider his claim.

Notwithstanding the fact that § 1252(a)-

(2)(C) precludes judicial review of removal

orders issued on the basis of the alien’s commission of an aggravated felony, we retain jurisdiction to determine our own jurisdiction.

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

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

aggravated felony is a jurisdiction-triggering

fact: If we determined that DWI was not an

aggravated felony (as we eventually did in

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

our ruling in Ramirez-Molina’sfavor, because

we could have overruled that decision en banc.

In short, had Ramirez-Molina appealed to

this 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

judicial review was available is of no consequence. Because he failed to 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 to 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 district

court’s finding of habeas jurisdiction, convert

the habeas petition into a petition for review,

and DISMISS the petition for review for want

of jurisdiction.