United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 03-30981
Summary Calendar
GREGORION RAFAEL REYES-GOMEZ,
Petitioner-Appellant,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL; JAMES W. ZIGLAR;
EDWARD J. McELROY; DONALD A. YOUNG; CHRISTINE G. DAVIS; UNITED
STATES DEPARTMENT OF JUSTICE; BUREAU OF IMMIGRATION AND CUSTOMS
ENFORCEMENT
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(2:02-CV-843)
Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Gregorian Rafael Reyes-Gomez appeals the denial of his habeas
petition, pursuant to 28 U.S.C. § 2241. As discussed infra, his
appeal is treated as a petition for review of the underlying order
of removal.
Reyes-Gomez, a native and citizen of the Dominican Republic,
entered the United States as a lawful permanent resident on 13 June
*
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this opinion should not be published and is not precedent except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.
1970. On or about 6 June 1995, he was convicted in New York of
criminal possession of a weapon in the third degree and was
sentenced to one year’s imprisonment. On 19 January 1996, the
Immigration and Naturalization Service issued an order to show
cause, charging him with deportability based on his conviction.
On 14 July 1997, after pleading guilty to a federal charge,
Reyes-Gomez was sentenced, inter alia, to 120-months imprisonment
(later reduced to 60 months) for conspiracy to possess with intent
to distribute in excess of 50 grams of cocaine base and cocaine.
Post-arrest, he began cooperating with federal law enforcement
officials, providing testimony that led to the conviction of other
drug dealers.
On or about 26 April 2001, venue of Reyes-Gomez’s deportation
proceedings was transferred from New York to Oakdale, Louisiana,
where Reyes-Gomez was detained on his federal conviction. On 10
May 2001, an additional charge of deportability was filed against
him for having been convicted of an aggravated felony.
Reyes-Gomez applied for asylum and withholding of removal and
for relief under the Convention Against Torture (CAT). The
Immigration Judge (IJ) denied this application and ordered his
removal. Reyes-Gomez’s appeal, through counsel, to the Board of
Immigration Appeals (BIA) was dismissed. Proceeding pro se, Reyes-
Gomez filed a timely petition for review of the BIA’s decision in
the Second Circuit. The petition was transferred to this court on
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28 January 2005 and was dismissed for lack of jurisdiction on 28
April 2005.
In April 2002, while his petition was pending in the Second
Circuit, Reyes-Gomez filed a habeas petition, pursuant to 28 U.S.C.
§ 2241, and a motion for a stay of deportation, again proceeding
pro se, in the United States District Court for the Eastern
District of New York. This habeas petition was transferred to the
Western District of Louisiana, where, after Reyes-Gomez obtained
counsel, it was dismissed with prejudice. Reyes-Gonzales filed a
timely notice of appeal. On 6 June 2005, this court granted his
motion for stay of deportation pending appeal.
Despite § 106 of the REAL ID Act, 8 U.S.C. § 1252, which
divests federal courts of jurisdiction over § 2241 petitions
attacking removal orders, we have jurisdiction to review Reyes-
Gomez’s challenge. Rosales v. Bureau of Immigration & Customs
Enforcement, 426 F.3d 733, 735-36 (5th Cir. 2005), petition for
cert. filed, (U.S. 24 Oct. 2005) (No. 05-7335) (“[H]abeas petitions
... that were already on appeal as of the REAL ID Act’s effective
date [of 11 May 2005] ... are properly converted into petitions
for review”.). Further, although “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”, the REAL
ID Act provides that none of its jurisdiction-stripping provisions
“‘shall be construed as precluding review of constitutional claims
3
or questions of law raised upon a petition for review filed with an
appropriate court of appeals’”. Id. (quoting 8 U.S.C. §
1252(b)(2)(D) (2005)).
Because Reyes-Gomez raises multiple constitutional issues, we
have jurisdiction, pursuant to § 1252(b)(2)(D), to review them.
Id. We review constitutional challenges de novo. Soadjede v.
Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003).
First, Reyes-Gomez claims that, if removed to the Dominican
Republic, he is likely to be injured or killed; and that this would
violate his right to substantive due process under the Fifth
Amendment. In support, he relies on the state-created danger
doctrine, which has never explicitly been adopted by this court.
Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537 (5th Cir. 2003).
Under this doctrine, due process is violated when state actors: (1)
“use[] their authority to create a dangerous environment for the
plaintiff”; and (2) “act[] with deliberate indifference to the
plight of the plaintiff”. Id. at 537-38 (setting forth the
elements of the cause of action in analyzing a pleading’s
constitutional claim for relief, pursuant to 42 U.S.C. § 1983).
Because Reyes-Gomez did not raise this state-created danger
challenge in district court, we will not review it here. Martinez
v. Tex. Dep’t of Criminal Justice, 300 F.3d 567, 574 (5th Cir.
2002) (refusing to disturb this court’s “long established course of
4
refusing, absent extraordinary circumstances, to entertain legal
issues raised for the first time on appeal”).
Second, Reyes-Gomez claims that his removal to the Dominican
Republic would constitute cruel and unusual punishment in violation
of the Eighth Amendment. This claim is without merit. Cortez v.
INS, 395 F.2d 965, 967 (5th Cir. 1968) (holding that Eighth
Amendment protections against cruel and unusual punishment do not
apply to deportation proceedings).
Reyes-Gomez contends that Cortez cannot stand in the light of
INS v. St. Cyr, 533 U.S. 289 (2001). That decision, however, did
not overrule Cortez. Id. at 324 (holding that “the presumption
against retroactivity applies far beyond the confines of the
criminal law[, and the] ... mere statement that deportation is not
punishment for past crimes” did not preclude its considering “an
alien's reasonable reliance on the continued availability of
discretionary relief”). Further, post-St. Cyr, numerous courts
have continued to hold that the Eighth Amendment does not apply to
deportation proceedings. See e.g., Elia v. Gonzales, 418 F.3d 667,
675 (6th Cir. 2005) (“[T]he Eighth Amendment is inapplicable to
deportation proceedings because, as the Supreme Court has held,
deportation does not constitute punishment”.); Cadet v. Bulger, 377
F.3d 1173, 1196 (11th Cir. 2004) (“Because immigration proceedings
are not criminal and do not constitute punishment, [Petitioner’s]
5
argument that his removal ... will violate the Eighth Amendment
lacks merit.”).
Third, Reyes-Gomez claims he received ineffective assistance
of counsel in violation of the Fifth Amendment. (His Sixth
Amendment right to effective assistance of counsel is not
implicated because the challenged removal proceeding was civil, not
criminal.) To prevail under this claim, he must show: (1)
deficient performance; and (2) substantial prejudice, resulting
from the ineffective representation. Miranda-Lores v. INS, 17 F.3d
84, 85 (5th Cir. 1994).
Although Reyes-Gomez has met the first prong by showing
deficient performance, he has not shown the second — resulting
prejudice. To show prejudice, he must establish “there is a
reasonable probability that, but for counsel’s unprofessional
error[], the result of the proceeding would have been different”.
United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999)
(internal citation and quotation marks omitted) (alteration in
original). Reyes-Gomez would have been subject to deportation,
however, even with effective representation. Therefore, this claim
also fails.
In addition to these constitutional challenges, Reyes-Gomez
claims the IJ applied the wrong standard when determining whether
he was entitled to relief under the CAT. “We have authority to
review only an order of the BIA, not the IJ, unless the IJ’s
6
decision has some impact on the BIA’s decision.” Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). The BIA dismissed Reyes-Gomez’s
appeal because it agreed with the IJ’s decision, “find[ing] no
reason to disturb [its] findings”. Therefore, we review the IJ’s
decision. See id.
The IJ held Reyes-Gomez ineligible for withholding of removal
under the CAT because of his five-year sentence for a conviction of
an aggravated felony, and that he failed to meet his burden of
proof with regard to deferral of removal. Reyes-Gomez challenges
the latter finding, claiming the IJ applied the wrong standard by
requiring a specific nexus between the harm Reyes-Gomez feared and
a government official in the Dominican Republic. Reyes-Gomez
concedes, however, that to obtain deferral of removal under the
CAT, he must prove his torture would be “inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity”. Efe v.
Aschcroft, 293 F.3d 899, 907 n.8 (5th Cir. 2002) (quoting 8 C.F.R.
§ 208.18(a)(1)). Therefore, his true claim is that the IJ erred in
finding that he failed to meet his burden of proof in this respect.
Such claim is based on the IJ’s factual finding; therefore, we lack
jurisdiction. See Rosales, 426 F.3d at 736; see also Hamid v.
Gonzales, 417 F.3d 642, 647 (7th Cir. 2005) (holding it lacked
jurisdiction to review an aggravated felon’s CAT claim where it did
not concern a constitutional issue or question of law).
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Finally, Reyes-Gomez’s request to stay this proceeding pending
the decision of similar issues in his separate petition for review
to the Second Circuit is moot. As discussed supra, that petition
was transferred to this court and dismissed for lack of
jurisdiction.
DENIED
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