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.
2
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).
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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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