Nguyen v. District Director, Bureau of Immigration & Customs Enforcement

                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit                      February 9, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 03-21066



              Tuan Anh Nguyen and Joseph Alfred Boulais,

                                                 Petitioners-Appellants,


                                  VERSUS


District Director, Bureau of Immigration and Customs Enforcement
    and Alberto R. Gonzales, United States Attorney General,

                                                  Respondents-Appellees.




            Appeal from the United States District Court
                 For the Southern District of Texas


Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:

     Petitioners-Appellants Tuan Anh Nguyen and Joseph Boulais

(collectively, “Petitioners”) appeal the grant of summary judgment

to the Government and the denial of Nguyen’s 28 U.S.C. § 2241

petition for writ of habeas corpus.          Petitioners argue the lower

court erred in its determination that: (1) Nguyen did not have a

due process right to discretionary relief from a removal order; (2)

equitable     estoppel   was   unavailable    because   the     Immigration

Naturalization Service (“INS”) did not purposefully delay the

commencement of removal proceedings; and (3) Nguyen failed to show
the INS’s action prejudiced him.      For the following reasons, we

AFFIRM.

                                 I.

     Nguyen was born in Vietnam on September 11, 1969, to unmarried

parents: Boulais, an American citizen, and a woman who was a

Vietnamese citizen.     Nguyen came to the United States with his

father in June 1975 as a refugee and became a lawful permanent

resident.      Although Boulais raised Nguyen in Texas, he never

legally adopted Nguyen; nor did Nguyen ever apply for naturalized

citizenship.

     On August 28, 1992, Nguyen pleaded guilty to two counts of

sexual assault on a child and was sentenced to eight years on each

count.1   On April 4, 1995, the INS initiated removal proceedings,

by issuance of an Order to Show Cause, against Nguyen as an alien

convicted of two crimes involving moral turpitude and an aggravated

felony, pursuant to § 241(a)(2)(A)(ii)-(iii) of the Immigration and

Nationality Act of 1952 (“INA”), 8 U.S.C § 1251(a)(2)(A)(ii)-(iii).

The order to show cause was not filed, however, until over a year

later in August 1996.      In the interim, immigration laws were

amended, and the relevant regulations resulting were less favorable

to Nguyen.

     Subsequently, two hearings occurred where Nguyen appeared

before an immigration judge (“IJ”) within Texas state prison.   The

     1
       The two assaults occurred on December 1, 1990, and
December 12, 1990, and involved two different minors.

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first hearing took place on November 22, 1996; and there Nguyen,

represented    by    counsel,    asserted         a   claim    to   United   States

citizenship.       The second hearing occurred on January 3, 1997.

There,    Nguyen     permitted        the       withdrawal     of   his    counsel.

Representing himself, Nguyen testified that he was a national or

citizen of Vietnam and that he was convicted of two separate

assault offenses in Harris County, as described above and in the

April 4, 1995, Order to Show Cause, and sentenced for those

convictions to eight years.           Based upon Nguyen’s testimony, the IJ

determined Nugyen to be removable as charged and ineligible, due to

the nature of his criminal offenses, to apply for relief from

removal. The parties now agree that under INS v. St. Cyr, 533 U.S.

289, 326 (2001), the IJ’s ruling was erroneous: although Nguyen had

a criminal record contemplated by the Antiterrorism and Effective

Death    Penalty    Act   of   1996    (“AEDPA”)       as     triggering   removal,

discretionary INA § 212(c) relief remained potentially available to

Nguyen due to his status as an alien whose conviction was obtained

through plea agreement and who would have been eligible for §

212(c) relief at the time of his plea.                See id.; see also United

States v. Mendoza-Mata, 322 F.3d 829, 831 n.3 (5th Cir. 2003).                  The

IJ entered his written order that Nguyen be deported to Vietnam on

January 30, 1997.

     Nguyen unsuccessfully appealed several issues to the Board of

Immigration Appeals (“BIA”), including whether the IJ erred in


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denying the opportunity to apply for § 212(c) relief.             Other issues

raised in Nguyen’s appeal ultimately proceeded to consideration by

a panel of this Court, see Nguyen v. INS, 208 F.3d 528 (5th Cir.

2000), and by the Supreme Court of the United States, see Nguyen v.

INS, 533 U.S. 53 (2001).         On direct appeal, this Circuit held that

8 U.S.C. § 1409, the statute preventing U.S. citizenship to a child

born   out   of   wedlock   to    a   citizen   father   unless    the   father

legitimizes the child before the child obtains 18 years, was

constitutional and did not infringe Boulais’s Fifth Amendment right

to equal protection.        Nguyen, 208 F.3d at 532-33.           The Supreme

Court agreed.      See Nguyen, 533 U.S. at 73.           That same year, the

Supreme Court decided St. Cyr, 533 U.S. 289, holding that federal

courts retain jurisdiction to consider habeas corpus petitions that

raise questions of law arising from discretionary decisions by the

INS and that § 212(c) discretionary relief remains available for

aliens “whose convictions were obtained through plea agreements and

who, notwithstanding those convictions, would have been eligible

for § 212(c) relief at the time of their plea under the law then in

effect.”     Id. at 307-14, 326.

       During the pendency of the appeal to our Court and review by

the Supreme Court, on July 2, 1998, Petitioners filed the habeas

corpus petition that forms the basis of this review.               The habeas

action was held in abeyance pending the disposition of the appeal

to this Circuit and review by the Supreme Court.                  Nguyen then


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moved, on December 12, 2001, to reopen his removal proceedings on

the grounds that relief was available to him under § 212(c) of the

INA, 8 U.S.C. § 1182(c), and St. Cyr.            Nguyen argued that equity

required his motion to reopen be granted, despite its untimely

filing under 8 C.F.R. § 3.23(b)(4)(iii) and that his eligibility

for § 212(c) relief should be determined, because of fundamental

fairness,   as   of   “the   day   when   the   immigration   judge   wrongly

pronounced him ineligible for relief from deportation.”               The BIA

denied his motion on January 24, 2002, finding him ineligible for

relief because, during the time between the IJ’s removal order and

the dismissal of Nguyen’s appeal in 1998, he had served over five

years for an aggravated felony offense, as a result of Nguyen’s

guilty pleas.    Under the relevant, pre-AEDPA provision of the INA,

an alien was barred from seeking § 212(c) relief if                   he was

“convicted of one or more aggravated felonies and ha[d] served for

such felony or felonies a term of imprisonment of at least 5

years.”   8 U.S.C. § 1182(c) (1994).

     Petitioners amended their habeas corpus petition on February

28, 2002, arguing that the BIA’s order denying the motion to reopen

deprived Nguyen of due process of law and denied Boulais’s right to

enjoy his son’s companionship.        The parties stipulated to proceed

before a Magistrate Judge for all purposes, and the court entered

its Memorandum and Order on the Government’s motion for summary

judgment and its Final Judgment on Petitioners’ writ on September



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29, 2003.     Nguyen claims that his liberty is restrained, in

violation of his Fifth Amendment right to due process, by the

Government’s action in denying his claim to relief from removal.

Nguyen argues that he was erroneously denied a hearing on his

request for discretionary relief from removal.             The Magistrate

Judge denied both Nguyen’s and Boulais’s claims, finding that this

Circuit’s case law, see United States v. Lopez-Ortiz, 313 F.3d 225

(5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), foreclosed the

argument that eligibility for § 212(c) relief vests a liberty or

property interest warranting due process protection and finding

that   Petitioners   were   not    entitled   to   the   equitable   relief

requested.

                                    II.

       We review de novo a dismissal of a 28 U.S.C. § 2241 petition

for writ of habeas corpus.    Kinder v. Purdy, 222 F.3d 209, 212 (5th

Cir. 2000).    The question we are called to answer is whether an

alien, subject to a removal order, holds a due process interest in

discretionary relief under § 212(c) when his pre-AEDPA five-year

eligibility bar was activated during the pendency of the removal

proceeding before the BIA.        We determine that he does not.

       In the context of an illegal reentry case arising under 8

U.S.C. § 1326, this Circuit has determined that a removable alien’s

eligibility for discretionary relief under § 212(c) does not merit

constitutional due process protection.         Lopez-Ortiz, 313 F.3d at


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227-28, 231.     Petitioners argue that Lopez-Ortiz does not apply in

civil cases and rely instead upon United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260, 267-68 (1954) (holding due process

required remand for a hearing on petitioner’s claims that the BIA

failed to act and that omission violated existing regulations). We

now expressly approve the district court’s application of Lopez-

Ortiz to the case where an alien challenges his removal in a

collateral civil proceeding and, therefore, hold that Nguyen does

not have a due process right to discretionary relief under § 212(c)

from a removal order.

     To challenge a removal, an alien must show: (1) the removal

hearing was fundamentally unfair; (2) the hearing effectively

eliminated the right of the alien to challenge the hearing by means

of judicial review; and (3) the procedural deficiencies caused the

alien   actual     prejudice.    Lopez-Ortiz,   313   F.3d   at   229.

Demonstration of prejudice requires the alien to show a reasonable

likelihood that, but for the errors complained of, he would not

have been removed.    United States v. Benitez-Villafuerte, 186 F.3d

651, 658-59 (5th Cir. 1999).

     Petitioners argue the district court erred in characterizing

Nguyen’s claim as one for a due process right to discretionary

relief from a removal order, when to the contrary he claims a due

process right to a hearing on whether he warrants the discretionary

§ 212(c) waiver.    See Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir.


                                   7
2003) (relying in part on St. Cyr, 533 U.S. at 325, for the

conclusion that a right to relief from removal is distinct from a

right     to   seek    such     relief        in   constitutionally        protected

proceedings).       We find no such error because under Lopez-Ortiz

neither    relief     from    removal     under      discretionary    waiver     nor

eligibility for such discretionary relief is entitled to due

process protection.          Lopez-Ortiz, 313 F.3d at 230-31; see also

Joseph v. Ashcroft, No. 03-30939, 2004 U.S. App. LEXIS 13479, at *3

(5th Cir. Jun. 30, 2004) (per curiam) (finding argument that

eligibility for § 212(c) relief is a liberty or property interest

warranting due process protection is foreclosed).

     Petitioners have failed to show that Nguyen’s removal hearing

was fundamentally unfair.            The record reveals Nguyen was afforded

notice of the charges against him, a hearing before an executive or

administrative tribunal, and a fair opportunity to be heard.                     See

Lopez-Ortiz, 313 F.3d at 230 (citing Kwong Hai Chew v. Colding, 344

U.S. 590, 597-98 (1953)).            As such, Nguyen’s removal proceedings

were not fundamentally unfair, and the denial of the possibility of

discretionary    relief       from    removal      does   not   threaten    Nguyen’s

constitutional right to due process.                  Therefore, we affirm the

district court’s denial of the claim grounded in violations of due

process and deny Petitioners’ request to remand the case to the BIA

with instructions for a hearing nunc pro tunc on § 212(c) relief.

                                        III.


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   Petitioners claimed before the Magistrate Judge and again raise

on appeal extensive arguments grounded in equity.               The Government

argues that the Magistrate Judge lacked subject matter jurisdiction

to reach these issues.           Although the Government concedes this

jurisdictional challenge was not raised below, the question of a

federal court’s subject matter jurisdiction may be properly raised

at any stage in litigation, including for the first time on appeal.

See In re Canion, 196 F.3d 579, 584 (5th Cir. 1999); In re Bass,

171 F.3d 1016, 1021 (5th Cir. 1999).2

     In this case, however, we need not reach the remaining issues

raised by either party.     Petitioners proceed subject to 28 U.S.C.

§ 2241, which provides for the grant of the writ of habeas corpus

on the application of a prisoner if, inter alia, he is held “in

custody in violation of the Constitution or the laws or treaties of

the United States.”     28 U.S.C. § 2241(c)(3); see also St. Cyr, 533

U.S. at 305.       Because Petitioners have not stated a cognizable

constitutional claim nor any claim of a violation of “the laws or

treaties   of   the     United     States,”       we   need    not    reach     the

jurisdictional challenges raised by the Government. See 28 U.S.C.

§ 2241(c)(3); Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th Cir.

2000).     “Such    a   claim    is   a       prerequisite    for    the   §   2241


     2
      Petitioners failed to address subject matter jurisdiction
in their brief and failed to reply to the Government’s arguments.
But the issue of subject matter jurisdiction cannot be waived.
See, e.g., Clinton v. New York, 524 U.S. 417, 428 (1998).


                                          9
jurisdiction” that Petitioners here seek. Toscano-Gil, 210 F.3d at

473. Because the prerequisite for § 2241 jurisdiction has not been

met in this case, we do not reach any of Petitioners’ claims

grounded in equity.

                           CONCLUSION

     Having carefully reviewed the submissions of both parties and

the complete record of proceedings below, the Magistrate Judge’s

dismissal of Petitioners’ claims and the petition for writ of

habeas corpus under 28 U.S.C. § 2241(c) is

AFFIRMED.




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