United States Court of Appeals
Fifth Circuit
F I L E D
In the January 12, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 03-50596
_______________
ISAAC RAMIREZ-MOLINA,
Petitioner-Appellee,
VERSUS
JAMES ZIGLAR; Et Al,
Respondents,
GRACE WINFREY,
INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL,
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
DEPARTMENT OF HOMELAND SECURITY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges. Isaac Ramirez-Molina challenges the rein-
statement of a removal order. Treating this
JERRY E. SMITH, Circuit Judge: action as a petition for review, we conclude
that we are without jurisdiction, so we dismiss On December 6, 1999, the INS1 issued a
the petition. notice to appear to Ramirez-Molina, asserting
Ramirez-Molina was removed from the that he was removable pursuant to 8 U.S.C.
United States in 1999 on the basis of a con- § 1227(a)(2)(A)(iii) on the ground that he had
viction of driving while intoxicated (“DWI”). been convicted of an “aggravated felony,”
Shortly after removal, he reentered the United which is defined by 8 U.S.C. § 1101(a)(43)(F)
States in violation of federal law. The Immi- to include a “crime of violence” with a term of
gration and Naturalization Service (“INS”) imprisonment of at least one year. A with-
took him into custody and initiated proceed- drawn opinion of this court had indicated that
ings to reinstate the removal order. DWI is a crime of violence. See Cama-
cho-Marroquin v. INS, 188 F.3d 649, 652 (5th
After the removal, but before the INS Cir. 1999), withdrawn, 222 F.3d 1040 (5th
sought reinstatement of the order, this court Cir. 2000).
determined that a DWI conviction is not
ground for removal under the relevant immi- Ramirez-Molina did not contest removabil-
gration statute. Citing that decision, Ramirez- ity but, instead, on December 22, 1999, sub-
Molina brought a habeas corpus action chal- mitted a Stipulated Request for Final Order of
lenging the reinstatement of the removal order Removal and Waiver o f Hearing in which he
on due process grounds. The district court conceded that he was “removable as charged,”
granted habeas relief. waived the right to a hearing, accepted a writ-
ten order of removal, and waived appeal of
Pursuant to the REAL ID Act, we reverse that written order. On December 28, 1999,
the district court’s finding of habeas jurisdic- the immigration judge granted the request for
tion and instead consider the challenge to the a final order and ordered him removed to El
reinstatement of the removal order as a peti- Salvador; he was removed on February 4,
tion for review. Finding no jurisdiction to en- 2000.
tertain the merits of the claim, we dismiss the
petition. About two weeks after his removal, Ramir-
ez-Molina reentered the United States in vio-
I. lation of 8 U.S.C. § 1326(a) and was taken in-
Ramirez-Molina first entered the United to custody by the INS on December 18, 2001.
States in 1984 and became a lawful permanent The next day, the INS issued a Notice of In-
resident in 1991. In August 1999 he was con- tent/Decision to Reinstate Prior [Removal] Or-
victed in state court of DWI, a third-degree der pursuant to 8 U.S.C. § 1231(a)(5), which
felony, and sentenced to ten years’ confine- authorizes such reinstatement by the Attorney
ment, suspended and probated to five years’
community supervision. At that time he had
1
been convicted of DWI on at least three The INS ceased to exist on March 1, 2003.
occasions. Its enforcement functions have been assumed by
the Bureau of Immigration and Customs Enforce-
ment (“BICE”), an agency within the Department
of Homeland Security. But, because the events in
this case took place before the reorganization of
immigration enforcement duties, we refer to the
agency as the INS.
2
General when an alien illegally reenters after the district court conditionally granted habeas
being removed. After a reinstatement, § relief, holding that pursuant to INS v. St. Cyr,
1231(a)(5) allows the Attorney General to 533 U.S. 289, 311 (2001), it had jurisdiction
remove the alien without additional proceed- under 28 U.S.C. § 2241 to review the removal
ings. Ramirez-Molina was also indicted for order in a habeas proceeding. With regard to
illegal reentry under § 1326, but the district the merits, the court held that Chapa-Garza
court dismissed the indictment. applies retroactively to the 1999 removal pro-
ceedings, rendering them “fundamentally un-
On May 13, 2002, Ramirez-Molina filed fair” because the INS misinterpreted the law.
motions with the Executive Office for Immi- On that basis, the court determined that the
gration Review requesting a stay of removal 1999 removal order was void ab initio and
and asking that the 1999 removal proceedings therefore held that reinstatement of the order
be reopened and terminated on the basis of was improper. The issuance of the writ was
United States v. Chapa-Garza, 243 F.3d 921 conditioned on the government’s failure to va-
(5th Cir. 2001), in which a panel of this court cate both the underlying order of removal and
reached a conclusion opposite to that reached the reinstatement order within ten days.
in the withdrawn opinion in Camacho-Mar-
roquin and stated that DWI is not a crime of II.
violence. Accordingly, in this circuit a DWI After the government filed its appeal, Con-
conviction is no longer an aggravated felony gress on May 11, 2005, enacted the REAL ID
that triggers removability. Act, Pub. L. No. 109-13, 119 Stat. 231, which
amends the Immigration and Nationality Act
Ramirez-Molina contended that Chapa- (“INA”) by explicitly foreclosing habeas re-
Garza applies retroactively to his 1999 remov- view of removal orders and by providing that
al proceedings, rendering those proceedings, a petition for review is the sole and exclusive
and therefore reinstatement of the resulting re- means of judicial review for all removal orders
moval order, invalid. The immigration judge except those issued pursuant to 8 U.S.C. §
granted a stay of removal on May 14, 2002, 1225(b)(1). See Pub. L. No. 109-13, 119 Stat.
without ruling on the motion to reopen and 231, 310, § 106(a)(1)(B). More specifically,
terminate. On May 24, 2002, Ramirez-Molina the REAL ID Act amends 8 U.S.C. § 1252(a)-
filed his habeas petition, contending that (2)(C) to provide that the wholesale preclusion
(1) the 1999 removal order was invalid be- of judicial review where a removal order is
cause, given our subsequent decision in Cha- based on, inter alia, the alien’s commission of
pa-Garza, it was based on an erroneous inter- an aggravated felony includes a preclusion of
pretation of the law; (2) the invalidity of the habeas review. See Pub. L. No. 109-13, 119
underlying removal order meant that his re- Stat. 231, 310, § 106(a)(1)(A)(ii). The REAL
entry was lawful and outside the scope of ID Act thus supplies, in this context, the “clear
8 U.S.C. § 1231(a)(5) (thus precluding rein- statement of congressional intent to repeal ha-
statement of the prior order); and (3) the re- beas jurisdiction” that the St. Cyr Court found
instatement proceedings were in violation of lacking.
due process because they were initiated on the
basis of an invalid removal order. Aside from addressing the clarity with
which congressional intent needs to be ex-
Adopting the report of a magistrate judge, pressed, the Court in St. Cyr also asserted that
3
if the jurisdictional provisions of the INA did LEXIS 619 (U.S. Jan. 9, 2006).2 Although
in fact preclude all judicial review in certain Congress provided that a habeas petition pend-
circumstances, as they now do as a result of ing before a district court as of the REAL ID
the REAL ID Act, then Suspension Clause Act’s effective date was to be transferred to
concerns would be implicated with regard to the appropriate court of appeals and converted
“pure questions of law.” St. Cyr, 533 U.S. at into a petition for review, see Pub. L. No.
300. The REAL ID Act addresses this consid- 109-13, 119 Stat. 231, 311, § 106(c), it did
eration in § 1252(a)(2)(D), which provides not specify what was to happen to habeas
that petitions that were already on appeal as of that
effective date.
[n]othing in subparagraph (B) or (C), or in
any other provision of this chapter (other Following the Third and Ninth Circuits,3
than this section) which limits or eliminates we have decided that “despite Congress’s sil-
judicial review, shall be construed as pre- ence on this issue, habeas petitions on appeal
cluding review of constitutional claims or as of May 11, 2005, . . . are properly con-
questions of law raised upon a petition for verted into petitions for review.” Rosales, 426
review filed with an appropriate court of F.3d at 736. Exercising our undeniable appel-
appeals in accordance with this section. late jurisdiction over the government’s appeal
of the grant of habeas relief, we therefore
Thus, although habeas jurisdiction to re- reverse the district court’s finding of habeas
view removal orders issued on the basis of an jurisdiction and convert the instant habeas
alien’s conviction of an aggravated felony has appeal into a petition for review.4 We turn
been foreclosed by the REAL ID Act, federal
courts of appeals now have jurisdiction, sub-
2
ject to other provisions of § 1252 and jurisdic- On the basis of the REAL ID Act, the govern-
tional conditions outside the scope of the INA, ment filed a motion to convert the habeas appeal
to consider, on a petition for review, constitu- into a petition for review. Ramirez-Molina does
tional claims and questions of law with regard not oppose conversion. Nevertheless, because
to such orders on a petition for review. Con- conversion implicates jurisdictional issues, we must
determine for ourselves whether it is appropriate.
gress specified that the provisions of the
REAL ID Act were to take effect immediately 3
See Alvarez-Barajas v. Gonzales, 418 F.3d
and retroactively upon enactment. See Pub. L. 1050, 1052-53 (9th Cir. 2005); Bonhometre v.
No. 109-13, 119 Stat. 231, 311, § 106(b). Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
4
As a consequence of this new jurisdictional At oral argument, there was some confusion
framework, “[w]e can no longer consider . . . with regard to whether we should convert the ha-
challenge[s] [to removal orders] in the context beas petition into a petition for review of the ori-
of habeas review. . . . Rather, we must now ginal 1999 removal order or of the reinstatement of
determine whether [petitioner’s] challenge is that order. We conclude that Ramirez-Molina’s
properly converted into a petition for review challenge is now properly converted into a petition
for review of the reinstatement. The initial habeas
under the REAL ID Act and, if so, whether we
petition demonstrates that he is challenging rein-
have jurisdiction to entertain that petition.”
statement on the ground that the underlying re-
Rosales v. BICE, 426 F.3d 733, 736 (5th Cir. moval order is invalid. Although the validity of the
2005) (per curiam), cert. denied, 2006 U.S. (continued...)
4
now to whether we have jurisdiction to enter- Cyr, questions arose about the circumstances
tain the petition for review. under which § 1231(a)(5) can operate to
preclude judicial review of an underlying
III. removal order in the context of a habeas pro-
We review questions of law as to jurisdic- ceeding regarding reinstatement.5 The prob-
tion de novo. See Bissonnet Invs., LLC v. lem was that if there were no judicial review
Quinlan, 320 F.3d 520, 522 (5th Cir. 2003); available to an alien in the initial removal
In re Liljeberg Enters., Inc., 304 F.3d 410, proceedings, then § 1231(a)(5)’s foreclosure
423 (5th Cir. 2002). We utilize that standard of judicial review of constitutional and legal
of review here. claims regarding that order after reinstatement
arguably would implicate the Suspension
A. Clause concerns articulated in St. Cyr.6
Nothing in the REAL ID Act precludes our
jurisdiction over this petition. As we noted in The REAL ID Act renders that discussion
the previous section, the REAL ID Act allows moot by codifying § 1252(a)(2)(D). In addi-
the courts of appeals to review constitutional tion to carving out exceptions to the jurisdic-
and legal claims regarding removal orders even tion-stripping provisions of § 1252 for consti-
where the Act renders an order otherwise tutional and legal claims, § 1252(a)(2)(D)
unreviewable. Because Ramirez-Molina chal- states that “[no] other provision of this chap-
lenges reinstatement of the 1999 removal or- ter . . . which limits or eliminates judicial re-
der on constitutional and legal grounds, we are view, shall be construed as precluding consti-
not barred from reviewing his claims merely tutional claims or claims of law.” Section
because the INA, as amended by the REAL ID 1231 is in the same chapter as § 1252. Be-
Act, generally forecloses all judicial review of cause § 1231(a)(5) limits judicial review,
removal orders issued on the basis of an alien’s § 1252(a)(2)(D) prevents its operation in cas-
conviction of an aggravated felony. See 8 es, such as this one, in which the validity of an
U.S.C. § 1252(a)(2)(C), (D). underlying order is questioned on constitution-
al or legal grounds.
The REAL ID Act has in fact removed one
barrier to our jurisdiction that might otherwise B.
have existed. Title 8 U.S.C. § 1231(a)(5) spe- The REAL ID Act does not, however, fore-
cifies that when the Attorney General rein- close the applicability of two other jurisdic-
states an order of removal after an alien re- tional barriers: the requirement that adminis-
enters the United States in violation of that or- trative remedies be exhausted before an alien
der, the order “is not subject to being re- seeks judicial review of a removal order7 and
opened or reviewed.” In the aftermath of St.
5
See Smith v. Ashcroft, 295 F.3d 425 (4th Cir.
4
(...continued) 2002); Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1999 removal order is thus central to the claims, it 1169, 1173 (9th Cir. 2001).
is the INS’s decision to reinstate that order that is
the subject of direct attack. Converting a habeas 6
See Smith, 295 F.3d at 428-29.
petition into a petition for review changes the form,
7
but not the substance, of a challenge to executive A court may review a final order of removal
action. (continued...)
5
the fact that the initial removal proceedings This court has yet to develop a precise stan-
must constitute a gross miscarriage of justice, dard for what constitutes a gross miscarriage
Lara v. Trominski, 216 F.3d 487, 491 (5th Cir. of justice sufficient to allow us to consider the
2000), for this court to entertain a collateral merits of a petitioner’s collateral attack on a
attack on a removal order. Given our conclu- removal order. For purposes of this case, it is
sion, which we will explain, that there is no enough to note one crucial consideration that
gross miscarriage here, we pretermit discus- leads us to conclude that there was no gross
sion of the exhaustion question. miscarriage of justice in the 1999 removal pro-
ceedings: Ramirez-Molina failed to contest his
In Lara, id., we held that “[w]e can review removability in those proceedings.
[a] collateral challenge to [a] prior deportation
order if and only if that deportation involved a There, Ramirez-Molina conceded remova-
gross miscarriage of justice.”8 Ramirez- bility and waived appeal of the removal order.
Molina is challenging reinstatement of the “[S]uch waivers are a critical factor in denying
1999 removal order on the ground that the al- claims that deportation proceedings constitut-
ready-executed order is invalid. Thus, even ed a gross miscarriage of justice.” Id. at 494.
presented in the form of a petition for review Our holding in Steffner provides the basis for
instead of a habeas petition, the crux of his this comment in Lara. Although the statutory
claim constitutes a collateral attack on the framework in effect at the time of Steffner was
1999 removal order. Accordingly, in the con- somewhat different from the one governing
text of a petition for review of a reinstatement this case, the relevant facts underlying Steffner
decision, we can review the validity of the un- are remarkably similar to those at issue here.
derlying removal order only if Ramirez-Molina
establishes that there was a gross miscarriage Steffner was deported in 1936 for past
of justice in the initial proceedings.9 membership in the Communist Party. The Su-
preme Court then determined that only present
7
(...continued)
only if “the alien has exhausted all administrative
9
remedies available to the alien as of right.” (...continued)
8 U.S.C. § 1252(d). statutorily-granted authority to entertain a collat-
eral attack on a removal order underlying a crimi-
8 nal indictment does not extend to a collateral attack
See also Ponce-Gonzalez v. INS, 775 F.2d
1342, 1345 (5th Cir. 1985); United States ex rel. on a removal order underlying a reinstatement
Steffner v. Carmichael, 183 F.2d 19, 20 (5th Cir. order, which is civil in nature. See id. at 839 (“We
1950). note parenthetically that permitting collateral
challenge to the validity of deportation orders in
9
In the context of a criminal indictment for il- proceedings under § 1326 does not create an op-
legal reentry under § 1326, courts have explicit portunity for aliens to delay deportation, since the
statutory authority to entertain and grant a motion collateral challenge we recognize today is available
to suppress the underlying removal order that al- only in criminal proceedings instituted after reen-
legedly renders reentry illegal if a consideration of try.”). Our precedents that establish the factors to
certain factors makes the order invalid. The fac- be considered under Mendoza-Lopez to allow a
tors courts must consider arise from United States collateral attack on an underlying removal order in
v. Mendoza-Lopez, 481 U.S. 828 (1987), but the criminal proceedings are therefore irrelevant to this
(continued...) case.
6
membership in a subversive organization can isdiction to determine our own jurisdiction.
render an alien deportable. See Kessler v. Salazar-Regino v. Trominski, 415 F.3d 436,
Strecker, 307 U.S. 607 (1939). Without the 443 (5th Cir. 2005). Whether an offense is an
permission of the Attorney General to reapply aggravated felony is a jurisdiction-triggering
for admission, Steffner reentered the United fact: If we determined that DWI was not an
States in 1941. Immigration authorities took aggravated felony (as we eventually did in
him into custody and initiated deportation Chapa-Garza), § 1252(a)(2)(C) would not ap-
proceedings on the basis of the 1936 order. ply, and we could review and vacate any re-
Steffner argued that he could not be deported moval order based on a DWI conviction. Ca-
because Strecker had rendered the 1936 order macho-Marroquin was not an absolute bar to
void ab initio. This court refused to find a our ruling in Ramirez-Molina’s favor, because
gross miscarriage of justice sufficient to war- we could have overruled that decision en banc.
rant collateral review of the 1936 order, in
large part because Steffner
In short, had Ramirez-Molina appealed to
did not elect to test the validity of his 1936 this court, he could have attained the result
deportation order. He had his day before that was ultimately achieved by the petitioner
the immigration authorities, who decided in Chapa-Garza. The fact that Ramirez-Mo-
that he should be deported. There is no lina erroneously believed no avenue of federal
showing that his failure to test the validity judicial review was available is of no conse-
of his order was due to any cause other quence. Because he failed to contest his re-
than his desire not to do so. movability in the 1999 proceedings, he cannot
establish that there was a gross miscarriage of
Steffner, 183 F.2d at 20-21. justice in those proceedings. Therefore, we
have no jurisdiction to entertain his collateral
The government contends that Steffner ap- challenge to the validity of the 1999 order, so
plies to this case and yields the same result. we find it unnecessary to discuss the merits of
Ramirez-Molina counters that we cannot give that claim.
weight to his failure to contest the 1999 order
in the initial proceedings because, unlike the In summary, we REVERSE the district
alien in Steffner, he had no chance to challenge court’s finding of habeas jurisdiction, convert
those proceedings in federal court. Ramirez- the habeas petition into a petition for review,
Molina’s attempt to distinguish Steffner fails, and DISMISS the petition for review for want
because this court had the power to rule in Ra- of jurisdiction.
mirez-Molina’s favor had he appealed here
after pursuing any required administrative
procedures. Had he sought review in this
court before he was removed, we would have
had jurisdiction to consider his claim.
Notwithstanding the fact that § 1252(a)-
(2)(C) precludes judicial review of removal
orders issued on the basis of the alien’s com-
mission of an aggravated felony, we retain jur-
7