United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2004
Charles R. Fulbruge III
Clerk
No. 03-10613
Summary Calendar
PAUL OLASENI,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL; JOHN ZIGLAR,
INS Commissioner; FRANCIS HOLMES, INS District Director;
CHARLES MULE, Director Buffalo Federal Detention Facility,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-02084-AH
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Paul Olaseni, an Immigration and Naturalization Service
(“INS”) detainee, has appealed the magistrate judge’s order
dismissing his 28 U.S.C. § 2241 application for a writ of habeas
corpus raising constitutional claims related to removal
proceedings, which had been initiated against him because of his
2001 conviction for mail fraud, and to the processing of a visa
*
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this opinion should not be published and is not precedent except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.
petition filed by his wife. Previously, we denied Olaseni’s
emergency motion to stay his removal. See Olaseni v. Ashcroft,
No. 03-60630 (5th Cir. Sept. 24, 2003) (unpublished, three-judge
order).
Olaseni contends that he is not an aggravated felon.
Because this issue involves questions of fact and has been raised
for the first time on appeal, it has not been considered. See
Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996); see also Castillo
v. Barnhart, 325 F.3d 550, 553 (5th Cir. 2003).
Olaseni complains that his right to due process was
violated because the INS proceedings were conducted in the INS’s
Dallas district office, rather than its Houston office. He
complains that the visa petition was filed long before his 2001
conviction. “[A]liens in deportation proceedings are entitled to
due process.” Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th
Cir. 2000). To raise a cognizable due process claim, “[t]he alien
must demonstrate substantial prejudice.” Id.
Because Olaseni’s wife was interviewed in Houston, where
she resides, Olaseni was not prejudiced by the INS’s decision to
conduct the administrative proceedings in Dallas rather than
Houston. The information gleaned in that interview supported the
conclusion that Olaseni’s marriage was a sham. Olaseni has not
shown that he could have established that the marriage was valid or
that it is likely that the visa petition would have been granted if
the INS proceedings had been conducted in Houston, rather than
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Dallas. Nor has he shown that the result would have been different
if the visa petition had been processed more expeditiously.
To the extent that Olaseni’s argument puts at issue the
decision of a magistrate judge of the United States District Court
for the Western District of New York to transfer the habeas action
from that district to the Northern District of Texas, rather than
the Southern District of Texas, Olaseni has not shown that the
magistrate judge abused his discretion. See United States v.
Lipscomb, 299 F.3d 303, 339 (5th Cir. 2002). Even if the magis-
trate judge had known that the visa petition was filed in Houston,
rather than Dallas, it would have been within his discretion to
order that the case be transferred to the Northern District of
Texas, as that was the district in which the removal proceedings
were pending. Moreover, because Olaseni has not asserted a
cognizable constitutional claim, any error in ordering that the
case be transferred to Dallas rather than Houston was not
reversible. See United States v. Gourley, 168 F.3d 165, 171
(5th Cir. 1999).
The judgment is AFFIRMED.
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