United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
September 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10630
ADRIAN ROSALES,
Petitioner-Appellant,
versus
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Adrian Rosales petitioned for writ of habeas corpus under 28 U.S.C. § 2241
to challenge his final order of deportation on due process grounds. The district
court concluded that it lacked jurisdiction because Rosales was not “in custody”
under § 2241 and dismissed his suit. We affirmed in an unpublished opinion.
Rosales v. Bureau of Immigration and Customs Enforcement, 115 Fed. Appx. 306
(5th Cir. 2004) (per curiam). The Supreme Court vacated the opinion after the
government conceded in its brief to the Court that Rosales should be considered “in
custody” according to the prevailing view in our sister circuits. Rosales v. Bureau
of Immigration and Customs Enforcement, __ U.S. __, 125 S. Ct. 2541 (2005).
Reconsidering the case in light of the government’s concession, we join the Second,
Sixth, Ninth, and Tenth Circuits and hold that an alien who is subject to a final order
of deportation, like Rosales, is “in custody” under § 2241. Because Rosales has not
established that the immigration judge’s alleged due process violation has
prejudiced him, however, we deny the petition.1
I. Background
Rosales is a Mexican citizen who became a permanent resident of the United
States in 1989. In 2000, he was convicted in Texas state court of aggravated
kidnaping and sentenced to 65 years’ incarceration. In February 2001, the INS
served Rosales with a Notice of Rights and Request for Disposition. The Notice
informed Rosales that the INS believed him to be in the country illegally, that he
was entitled to a hearing on whether he could remain in the U.S., that he had a right
to seek legal representation and to communicate with his consulate, and that he
1
The previous opinion denying the petition is withdrawn and this opinion is substituted.
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could use a telephone to contact an attorney or the consulate at any time before his
departure from the U.S. Rosales signed, initialed, and dated the Notice in the
presence of an INS officer. The officer signed a certificate of service reflecting that
Rosales had read the Notice.
The INS charged Rosales with removability as an aggravated felon under
8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) in November 2001, while he was
serving time on the Texas conviction. It filed an immigration detainer concerning
Rosales with the Texas Department of Criminal Justice in March 2002. At
Rosales’s immigration hearing in July 2002, the immigration judge (“IJ”) advised
Rosales of his right to legal representation. Rosales waived that right, said he
wished to be removed to Mexico, and elected to proceed with his hearing that day.
He conceded the grounds for his removal, that he had been convicted of an
aggravated felony. The IJ found Rosales ineligible for relief from removal and
ordered him deported.
Rosales appealed to the BIA, arguing that his hearing did not afford him due
process because the IJ did not inform him of his right to contact his consulate under
the Vienna Convention on Consular Relations, Dec. 24, 1969, art. 36, 21 U.S.T. 77.
The BIA dismissed the appeal because it lacked jurisdiction to consider Rosales’s
constitutional claim. Rosales then filed the present habeas suit.
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II. Analysis
A. Rosales Is “In Custody” Under § 2241
An individual may seek habeas relief under § 2241 if he is “in custody” under
federal authority or for violation of federal law. 28 U.S.C. § 2241(c). As the
Supreme Court recently noted, physical detention (or here, physical detention by
federal, rather than state, authority) is no longer required for a petitioner to meet the
custody requirement and obtain habeas relief. Rumsfeld v. Padilla, 542 U.S. 426,
124 S. Ct. 2711, 2719 (2004) (“[O]ur understanding of custody has broadened to
include restraints short of physical confinement[.]”); see also Jones v. Cunningham,
371 U.S. 236, 239-40 (1963) (recognizing that restraints on liberty other than
physical confinement may constitute custody for habeas purposes).
At least four circuits have held that a final deportation order subjects an alien
to a restraint on liberty sufficient to place the alien “in custody.” Simmonds v. INS,
326 F.3d 351, 354 (2d Cir. 2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291
(10th Cir. 2001); Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1021 n.4 (6th Cir.
1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995); cf.
Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 541 (5th Cir. 2003) (holding that,
where the INS had not ordered the alien deported, an immigration detainer alone did
not place him “in custody” under § 2241). We agree. The federal government has
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placed a significant restraint on Rosales’s liberty by issuing a final order of
deportation against him. It must detain him once his removal period begins at his
release from state prison. 8 U.S.C. § 1231(a)(1)(B)(iii), (a)(2). He is therefore “in
custody” under § 2241. Simmonds, 326 F.3d at 354-55; cf. Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484 (1973) (holding that a prisoner under the
authority of State A may file an immediate habeas petition to attack future
confinement by State B where State B has filed a detainer against the prisoner with
State A). However, § 2241 is no longer the appropriate avenue for Rosales’s
challenge.
Before the judgment in this case was vacated and remanded by the Supreme
Court, Congress passed the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231
(May 11, 2005). The Act amends the jurisdictional provisions of the Immigration
and Nationality Act, altering the way in which noncitizens can seek judicial review
of administrative orders of removal. Section 106 of the REAL ID Act has divested
federal courts of jurisdiction over § 2241 petitions attacking removal orders,
effective immediately and retroactively. Pub. L. No. 109-13, 119 Stat. 231, 310;
Enwonwu v. Chertoff, No. 05-10511-WGY, 2005 U.S. Dist. LEXIS 13890, at *121-
*123 (D. Mass. July 12, 2005).
Section 106 provides:
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Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, . . . a petition for review
filed with an appropriate court of appeals in accordance
with this section shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision of [the Immigration and Nationality
Act] . . . .
The section took effect upon its enactment and applies “to cases in which the
final administrative order of removal, deportation, or exclusion was issued before,
on, or after the date of enactment of this division.” Pub. L. No. 109-13, 119 Stat.
231, 311, § 106(b).
This court is thus the exclusive forum for Rosales’s challenge to his removal
order. We can no longer consider, however, this challenge in the context of habeas
review, thus rendering irrelevant any consideration of whether Rosales is “in
custody” for purposes of § 2241. Rather, we must now determine whether Rosales’s
challenge is properly converted into a petition for review under the REAL ID Act
and, if so, whether we have jurisdiction to entertain that petition.
The REAL ID Act requires district courts to transfer any pending habeas cases
to the appropriate court of appeals. Pub. L. No. 109-13, 119 Stat. 231, 311, §
106(c). In addition, Congress provided that “[t]he court of appeals shall treat the
transferred case as if it had been filed pursuant to a petition for review . . . .” Id.
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Congress neglected, however, to specify what was to happen to habeas petitions,
such as this one, that were already on appeal as of the REAL ID Act’s effective date.
Following the reasoning of the Third and Ninth Circuits, we hold that despite
Congress’s silence on this issue, habeas petitions on appeal as of May 11, 2005,
such as Rosales’s, are properly converted into petitions for review. Bonhometre v.
Gonzales, 414 F.3d 442 (3d Cir. 2005); Alvarez-Barajas v. Gonzales, 2005 WL
1906672 (9th Cir. Aug. 11, 2005).
The Immigration and Nationality Act, 8 U.S.C. § 1252(b)(2)(C), generally
prohibits judicial review of removal orders issued on the basis of an alien’s
commission of an aggravated felony. But, the REAL ID Act, Pub. L. No. 109-13,
119 Stat. 231, 310, § 106(a)(1) (codified at 8 U.S.C. § 1252(b)(2)(D)), provides that
[n]othing in subparagraph (B) or (C), or in any other
provision of the [Immigration and Nationality Act] (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.
Because Rosales has challenged his removal order on due process grounds,
we have jurisdiction over his petition for review pursuant to § 1252(b)(2)(D). We
therefore proceed to the merits of his challenge.
B. Rosales Has Not Established Prejudice
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Although aliens have no Sixth Amendment right to counsel at deportation
hearings, Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001), due
process requires that such hearings be fundamentally fair. Animashaun v. INS, 990
F.2d 234, 238 (5th Cir. 1993). “[T]o succeed on a collateral attack of a deportation
order on due process grounds, an alien must first demonstrate that he has suffered
actual prejudice.” Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir. 2002).
Rosales argues that his hearing was not fundamentally fair because the IJ did not
inform him of his right to contact the Mexican consulate. He contends that this
alleged due process violation caused him prejudice because, had he been informed of
the right, he would have contacted the consulate and the consulate would have
provided him free legal representation at the hearing.
Article 36 of the Vienna Convention on Consular Relations requires the
“competent authorities” of the arresting country to inform an alien arrestee of his
rights under the Convention, including his right to contact his consulate. Immigration
regulations contain the same requirement. 8 C.F.R. § 1236.1(e) (“Every detained
alien shall be notified that he or she may communicate with the consular or
diplomatic officers of the country of his or her nationality in the United States.”).
The government complied with these provisions in the present case, by informing
Rosales of his Vienna Convention rights in the Notice of Rights and ensuring that he
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read it. Rosales contends the Notice was insufficient because he actually did not
read it or could not understand it because his English was not good enough. He
argues that due process requires, either in addition to or instead of the Notice, that
the IJ inform an alien of his right to contact his consulate during the immigration
hearing.
It is unclear whether Rosales’s Vienna Convention rights are protected under
the Due Process Clause. See Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994)
(“[T]he privilege of communication with consular officials . . . [is] not [a]
fundamental right[] derived from the Constitution”); cf. Medellin v. Dretke, __ U.S.
__, 125 S. Ct. 2088, 2089 (2005) (dismissing the writ of certiorari as improvidently
granted in a case raising the issue of whether federal courts are bound by the
International Court of Justice’s ruling that the Vienna Convention confers
individually enforceable rights on detained aliens); Breard v. Greene, 523 U.S. 371,
376 (1998) (noting that the Vienna Convention “arguably” confers a right to consular
assistance on an alien following arrest); United States v. Jimenez-Nava, 243 F.3d
192, 198-200 (5th Cir. 2001) (rejecting the defendant’s arguments that the Vienna
Convention confers a judicially enforceable right on a detained alien to contact his
consulate and holding that the government’s failure to inform a detainee of such a
right does not warrant suppression of evidence). It is also unclear whether, if the
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right is within due process, the Notice did not provide sufficient process under the
principles of Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Ramirez-Osorio
v. INS, 745 F.2d 937, 944-47 (5th Cir. 1984) (holding that the INS provided
sufficient process under Mathews v. Eldridge by informing only those aliens who the
agency believed could be subject to persecution if returned home of their right to
petition for asylum). We need not address these questions, because Rosales has not
shown that he suffered prejudice due to the IJ’s failure to inform him of his right to
contact the Mexican consulate. Rosales admitted in the immigration hearing that he
had been convicted of an aggravated felony, which makes him deportable. 8 U.S.C.
§§ 1101(a)(43)(F), 1227(a)(2)(iii). He does not argue that he is eligible for any relief
from deportation. Because he makes no showing that assistance from his consulate
would have changed the result of the hearing, he is not entitled to relief on due
process grounds. Ojeda-Terrazas, 290 F.3d at 302 (holding that, where an alien had
not shown that the procedural safeguards he sought would have changed the result of
his deportation hearing, the alien failed to establish prejudice and the court was not
required to evaluate the merits of his due process claim).
Rosales also argues that his due process rights were violated because the
government did not immediately deport him after it obtained the final order of
deportation against him. This argument is without merit—by statute, Rosales’s
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removal period does not start until his state term of incarceration ends. 8 U.S.C.
§ 1231(a)(1)(B)(iii).
III. Conclusion
Pursuant to the REAL ID Act, we have jurisdiction to consider the challenge
raised in what has now been converted into a petition for review. Rosales has not
established that he has suffered prejudice because the IJ did not inform him of his
right to contact the Mexican consulate, however, dooming his due process claim.
We accordingly deny the petition.
PETITION DENIED.
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