United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20175
(Summary Calendar)
_____________________
PEDRO GUZMAN
Petitioner - Appellant
v.
ALBERTO GONZALES, U S ATTORNEY GENERAL
Respondent - Appellee
__________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
No. H-04-1551
__________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant appeals the district court’s order
dismissing his habeas petition for lack of subject matter
jurisdiction. We AFFIRM.
I
Petitioner-Appellant, a Mexican national, was granted lawful
permanent resident status in 1990. On July 13, 1992, he pled
*
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that this opinion should not be published and is not precedent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.
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guilty to sexually assaulting a child, his niece, in the second
degree and was placed on probation for ten years. Based on this
conviction, the Department of Homeland Security charged him with
removability for having been convicted of an aggravated felony
under section 237(a)(2)(A)(iii) of the Immigration and
Naturalization Act (“Act”), 8 U.S.C. § 1227(a)(2)(A)(iii). See
section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A)
(defining sexual abuse of a minor as an aggravated felony).
Given the serious nature of his crime, Petitioner-Appellant
bore the burden of establishing unusual or outstanding equities
in order to qualify for a discretionary waiver of inadmissibility
under former section 212(c)of the Act, codified at 8 U.S.C. §
1182(c).1 Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). The
immigration judge (“IJ”) granted Petitioner-Appellant’s
application for waiver from deportation under section 212(c),
finding that he met his burden of demonstrating he deserved the
relief as a matter of discretion. The Department of Homeland
Security appealed the grant of relief from removal. The Board of
Immigration Appeals (“BIA”) reversed the IJ’s decision and denied
the relief because it did not find that Petitioner-Appellant’s
family ties and his employment history outweighed the gravity of
Petitioner-Appellant’s offense. The BIA also did not agree with
1
Although repealed in 1996, section 212(c)relief remains
available for convictions occurring prior to the repeal of that
section. INS v. St. Cyr, 533 U.S. 289, 326 (2001).
2
the IJ that Petitioner-Appellant had established rehabilitation
as a positive equity, noting that the Petitioner-Appellant
testified that he would have continued having sexual relations
with his niece, a minor at the time, if she had not reported the
acts at school. In addition, the BIA noted that Petitioner-
Appellant did not think it was “such a great crime” to have had
sexual relations with his niece since he had become sexually
involved with his wife when they both were minors. Thus, the BIA
concluded that Petitioner-Appellant’s statements “indicate[d]
that [Guzman] does not appreciate either the wrongfulness of
adults having sex with children or of incestuous sexual
relationships.” Hence, the BIA vacated the IJ’s decision
granting Petitioner-Appellant the waiver and ordered Petitioner-
Appellant’s removal to Mexico.
Petitioner-Appellant filed a district court habeas corpus
suit challenging the decision of the BIA denying his application
for discretionary relief from removal. He argued that he was
entitled to habeas relief based on the BIA’s improper balancing
of the equities in reversing the IJ’s decision. The district
court granted the government’s motion to dismiss for lack of
subject matter jurisdiction under 28 U.S.C. § 2241(c)(3) because
“Guzman failed to state any cognizable constitutional or
statutory claim in his petition.”
II
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We review de novo the district court’s legal determinations
regarding jurisdiction. Requena-Rodriguez v. Pasquarell, 190
F.3d 299, 302 (5th Cir. 1999).
Section 2241(c)(3) may be used broadly to challenge orders
of deportation as being in violation of the Constitution or laws
or treaties of the United States. Thus, federal courts retain
habeas jurisdiction to review statutory and constitutional
claims. However, section 2241(c)(3) does not confer jurisdiction
to review denials of discretionary relief by an IJ or the BIA.
Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003).
We find that Petitioner-Appellant fails to state any
cognizable constitutional or statutory claim in his petition. In
addition, as former § 212(c) of the Act is a discretionary form
of relief, we agree that the district court did not have habeas
jurisdiction to review the BIA’s decision to deny Petitioner-
Appellant relief made available under that section.
Thus, we AFFIRM the district court’s dismissal of
Petitioner-Appellant’s habeas petition for lack of subject matter
jurisdiction.
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