No. 99-20699
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20699
Summary Calendar
MAYNOR ISRAEL CALI,
Petitioner-Appellant,
versus
RICHARD B. CRAVENER, Director
of Immigration Naturalization
Services,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-3161
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April 21, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Maynor Israel Cali, prisoner # 92988948, argues that the
district court erred in dismissing his 28 U.S.C. § 2241 habeas
petition seeking judicial review of an order of the Board of
Immigration Appeals (BIA) ordering his removal from the United
States based on his conviction for delivery of a controlled
substance. He argues that his removal violates the Ex Post Facto
Clause because he committed the offense prior to the enactment of
*
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that this opinion should not be published and is not precedent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.
No. 99-20699
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the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”). He also argues that these provisions did not
preclude habeas review of the removal order by the district
court.
The IIRIRA’s permanent provisions apply to cases in which
deportation proceedings commenced on or after April 1, 1997. See
Max-George v. Reno, F.3d (5th Cir. Feb. 24, 2000, No. 98-
21090), 2000 WL 220502, at *2 n.3, *8. Because Cali’s removal
proceeding were commenced after that date, his case is governed
by the amended permanent rules. “IIRIRA’s permanent provisions
eliminate § 2241 habeas corpus jurisdiction for those cases that
fall within [8 U.S.C.] § 1252(a)(2)(C).” Max-George, 2000 WL
220502, at *4. Cali’s conviction, whether for possession or
delivery of cocaine, fell within the scope of § 1252(a)(2)(C).
See 8 U.S.C. § 1101(43)(B), § 1227(a)(2)(A)(iii),(B).
With respect to Cali’s argument that he cannot be deported
based on a criminal offense committed prior to the enactment of
the AEDPA and the IIRIRA, the date of the commission of the
offense is not relevant pursuant to § 1252(a)(2)(C). “Congress
has the power to make an alien’s past criminal conduct subject to
present or future deportation notwithstanding the fact that the
alien could not have been deported for the act at the time it was
committed.” Max-George, 2000 WL 220502 at *5. The use of such
convictions does not result in the retroactive application of the
new provisions. See Requena-Rodriguez v. Pasquarell, 190 F.3d
299, 308 (5th Cir. 1999).
No. 99-20699
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Cali also argues that the elimination of § 2241 review
violates the Suspension Clause. “Congress can repeal or
supercede § 2241 without violating the Suspension Clause,
assuming that the constitutional writ guaranteed against
`suspension’ is not eliminated.” Max-George, 2000 WL 220502 at
*6. Despite the limitations of the IIRIRA, aliens receive
sufficient judicial review to satisfy the Suspension Clause. Id.
at *7.
Cali also argues that it is a denial of equal protection to
allow previously convicted aliens who leave the country the right
to apply for discretionary relief while denying this right to
convicted aliens who remained in the country.
The court has determined that there is a rational basis for
treating excludable aliens more deferentially than deportable
aliens and that the difference in treatment of different classes
of aliens does not constitute an equal protection violation. See
Requena-Rodriguez, 190 F.3d at 309.
The district court lacked subject-matter jurisdiction to
consider the instant § 2241 petition. See Max-George, 2000 WL
220502, at *4. Therefore, the dismissal of the petition for lack
of jurisdiction is AFFIRMED.
Cali does not argue on appeal his argument made in the
district court that his Fifth Amendment right to due process was
violated because he was not removed from the United States within
90 days of the final administrative order by the BIA. Because he
has not raised this issue on appeal, it is deemed abandoned. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
No. 99-20699
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748 (5th Cir. 1987).
Cali’s motion to file an out-of-time reply brief is GRANTED.
Cali’s motion for release pending his appeal is DENIED as
moot.
Cali has also filed a motion in opposition to the appellee’s
request for oral argument. The motion is DENIED as unnecessary.
AFFIRMED.