United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-21019
PEDRO DELGADO-REYNUA,
Petitioner-Appellee,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, JOLLY, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Pedro Delgado-Reynua is a native and citizen of Mexico. In
1999, the government commenced deportation proceedings against him
based upon his guilty plea to a charge of indecency with a child.
See 8 U.S.C. § 1227(a)(2)(A)(iii). Subject now to a removal order,
Delgado-Reynua filed a petition for writ of habeas corpus in the
Southern District of Texas. Pursuant to the REAL ID Act, Pub. L.
No. 109-13, 119 Stat. 231 (2005) (“RIDA”), we vacate the district
court’s grant of habeas relief and convert Delgado-Reynua’s petition
for writ of habeas corpus into a petition for review. In part, we
dismiss Delgado-Reynua’s petition for lack of jurisdiction, and as
to that portion over which we have jurisdiction under RIDA, we deny
the petition for review on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
Delgado-Reynua became a lawful permanent resident of the United
States on December 12, 1990 through amnesty provisions. Three years
later, he pleaded guilty to a charge of indecency with a child. See
TEX. PEN. CODE § 21.11. Delgado-Reynua received a deferred
adjudication of guilt and six years’ probation.
In July 1999, the Immigration and Naturalization Service
(“INS”) charged Delgado-Reynua as subject to removal as an alien
convicted of an aggravated felony. See 8 U.S.C. §
1227(a)(2)(A)(iii); see also id. § 1101 (a)(43)(A). At a removal
hearing, the immigration judge (“IJ”) determined Delgado-Reynua was
deportable and ordered him removed. Delgado-Reynua requested a
waiver of removability under the now-repealed section 212(c) of the
Immigration and Nationality Act (“INA”), formerly codified at 8
U.S.C. § 1182(c). The IJ determined that section 212(c) waiver was
not available. Delgado-Reynua appealed to the Board of Immigration
Appeals (“BIA”). During the pendency of that appeal, the Supreme
Court issued INS v. St. Cyr, 533 U.S. 289 (2001) (holding that
aliens with convictions predating the elimination of section 212(c)
of the INA could apply for discretionary relief from removal). The
BIA remanded Delgado-Reynua’s case so that the IJ could determine
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if he was entitled to section 212(c) relief pursuant to St. Cyr.
On August 29, 2002, after a hearing, the same IJ who originally
ordered Delgado-Reynua removed, granted Delgado-Reynua a section
212(c) waiver of removability. The IJ’s order described the
circumstances surrounding the underlying conviction. Delgado-Reynua
repeatedly committed indecent acts with the eight-year-old
granddaughter of his employer over a lengthy but disputed period of
time, not less than one year and not greater than approximately
three years. Based upon testimony at the hearing, the IJ’s order
noted Delgado-Reynua’s remorse, his completion of therapy mandated
as a result of his conviction, the close relationship of Delgado-
Reynua’s family, and the length of time Delgado-Reynua had resided
in the United States. The IJ weighed these equities and hardships
of removal against the seriousness of the underlying criminal
offense and granted Delgado-Reynua discretionary relief from removal
under section 212(c), citing the remoteness in time of the crime,
a lack of criminal record since the crime, and Delgado-Reynua’s
remorse and rehabilitation.
The Department of Homeland Security (“DHS”), formerly the INS,
appealed to the BIA. On discretionary review of the IJ’s factual
findings, the BIA affirmed the IJ’s use of a balancing test to
determine waiver, but explained that although the balancing test was
necessary to a grant of section 212(c) relief, the demonstration of
positive factors (those weighing in favor of relief) did not compel
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the grant of such relief. Without deciding the issue, the BIA
assumed that Delgado-Reynua demonstrated unusually positive equities
supporting section 212(c) relief and held that such relief had to
be denied because Delgado-Reynua “did not meet his burden to
establish that the equities presented outweigh the negative
factors.” The BIA concluded that the IJ gave insufficient weight
to the serious adverse factor in the case, that is, the conviction
for indecency with a child, and the BIA noted additional, material
negative factors: the young age of the victim and the extended
period of the abuse. In light of the IJ’s failure to properly
account for the factors in the record weighing against waiver, the
BIA vacated the IJ’s order grating section 212(c) waiver of
removability and again ordered Delgado-Reynua removed to Mexico.
Delgado-Reynua filed a petition for writ of habeas corpus in
the Southern District of Texas, challenging the BIA’s order of
removal and arguing that the BIA acted ultra vires its authority to
vacate his section 212(c) relief on the basis of the BIA’s improper
reweighing of factors considered by the IJ without regard to the
traditional “clearly erroneous” standard. Without providing the
government an opportunity to respond, the district court entered an
order granting the habeas petition, reversing the BIA’s order, and
vacating the BIA’s order of removal.
The government filed a Rule 59(e) motion before the district
court, arguing that the BIA acted properly in reversing the IJ under
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discretionary powers granted to the BIA by 8 C.F.R. §
1003.1(d)(3)(ii). Delgado-Reynua responded in opposition, arguing
that the BIA’s decision was a reversal of the IJ on issues of law
and fact and that the reversal arose out of the BIA’s improper de
novo review. The district court denied the government’s Rule 59(e)
motion on the grounds that the BIA may only reverse an IJ’s decision
if the decision is clearly erroneous and that the BIA violated its
own standards in reviewing the IJ’s order de novo. The government
appealed the district court’s grant of habeas relief.
DISCUSSION
I.
After the government filed its appeal with this Court on April
5, 2005, Congress passed RIDA, Pub. L. No. 109-13, 119 Stat. 231
(2005).
The Act explicitly forecloses habeas review of removal
orders and provides that a petition for review is the
sole and exclusive means of judicial review for all
removal orders except those issued pursuant to 8 U.S.C.
§ 1225(b)(1). See Pub. L. No. 109-13, 119 Stat. 231,
310, § 106(a)(1)(B). The Act specifies that a habeas
petition pending before a district court as of the REAL
ID Act's effective date is to be transferred to the
appropriate court of appeals and converted into a
petition for review. See Pub. L. No. 109-13, 119 Stat.
231, 311, § 106(c).
Hernandez-Castillo v. Moore, 436 F.3d 516, 518 (5th Cir. 2006).
And although RIDA did not specify the treatment of habeas
petitions on appeal at the time of the Act’s efficacy, this Court
has held that “habeas petitions on appeal as of May 11, 2005, . .
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. are properly converted into petitions for review.” Id. (quoting
Rosales v. BICE, 426 F.3d 733, 736 (5th Cir. 2005) (per curiam),
cert. denied, 126 S. Ct. 1055, 163 L. Ed. 2d 882 (2006)). Here, the
government, rather than the petitioner, seeks appellate review of
the district court’s order. However, in such a case the effect of
RIDA and Rosales is the same. See Ramirez-Molina v. Ziglar, 436
F.3d 508, 512-13 (5th Cir. 2006). We vacate the district court’s
exercise of habeas jurisdiction over Delgado-Reynua’s original
habeas petition and convert Delgado-Reynua’s habeas petition into
a petition for review of the removal order.
II.
The government argues this Court lacks jurisdiction to
consider the petition for review in so far as it challenges the
BIA’s discretionary denial of section 212(c) relief. Delgado-Reynua
argues that jurisdiction is proper to review each of his challenges
to the BIA’s order.
RIDA amended the INA to limit appellate jurisdiction over
petitions for review in cases such as this, where petitioner is an
aggravated felon, to solely “constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(D); see also Hernandez-Castillo, 436
F.3d at 519. Delgado-Reynua characterizes his challenge to the
BIA’s order as presenting two questions of law. First, Delgado-
Reynua argues that the BIA improperly conducted de novo review,
rather than reviewing the IJ’s decision for clear error, when it
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reweighed the facts relevant to the grant of discretionary relief.
Second, citing Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.
2004), Delgado-Reynua argues that even if the BIA’s weighing of the
factors were appropriate, the BIA did not have the power to enter
a removal order, only the IJ on remand did.
As to the argument that the BIA’s decision involved an improper
review of the factual basis for the IJ’s order, Delgado-Reynua has
not raised a legal question over which this Court has jurisdiction.
Although Delgado-Reynua phrases his argument in legal terms, he
uses those terms to cloak a request for review of the BIA’s
discretionary decision, which is not a question of law. The BIA’s
order did not involve fact-finding, but instead was the
discretionary exercise of its power to review and reverse the IJ’s
grant of, rather than eligibility for, section 212(c) relief. See
St. Cyr, 533 U.S. at 307; Bravo v. Ashcroft, 341 F.3d 590, 592-93
(5th Cir. 2003) (distinguishing the question of law presented by the
issue of eligibility for discretionary relief from the discretionary
issue of the grant or denial of that discretionary relief); see also
Guerra-Moya v. Winfrey, No. 04-40746 (5th Cir. Mar. 15, 2006)
(exercising jurisdiction under RIDA over a question of eligibility
for section 212(c) relief). We dismiss for lack of jurisdiction
Delgado-Reynua’s petition in so far as it challenges the BIA’s
denial of section 212(c) discretionary relief from removal. Cf.
Hadwani v. Gonzales, No. 05-60066 (5th Cir. Apr. 4, 2006).
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Delgado-Reynua next argues that he presents a question of law,
over which RIDA grants this Court jurisdiction, by challenging the
BIA’s order on the grounds that the BIA exceeded its authority when
it issued a removal order in the first instance instead of remanding
to the IJ after reversing the IJ’s grant of section 212(c) relief.
The government concedes in supplemental briefing that on this issue
alone, whether the BIA exceeded its authority, Delgado-Reynua
presents a legal question over which this Court has jurisdiction
under RIDA. Because Delgado-Reynua challenges the BIA’s authority
to order his removal, we agree that a question of law vesting this
Court with jurisdiction is presented. However, reviewing that claim
of error, Delgado-Reynua’s petition is without merit and is denied.
III.
The INA defines an “order of deportation” as “the order of the
special inquiry officer, or other such administrative officer to
whom the Attorney General has delegated the responsibility for
determining whether an alien is deportable, concluding that the
alien is deportable or ordering deportation.” 8 U.S.C. §
1101(a)(47) (emphasis added). Here, the IJ determined that Delgado-
Reynua was deportable on September 28, 1999 and entered an order
effecting that determination. Indeed, the subsequent consideration
of availability of waiver from that order rested upon the predicate
determination that Delgado-Reynua was deportable. The IJ later
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reiterated that an order of deportation was entered in 1999 in the
Oral Decision of the Immigration Judge, the decision that was
entered on August 29, 2002 and that granted section 212(c) relief.
Thus, Delgado-Reynua was ordered removed from the United States in
the first instance by the IJ in 1999. The BIA simply reinstated
that determination after it denied the waiver for which Delgado-
Reynua was deemed eligible but to which he was not, in the BIA’s
exercise of its discretion, entitled.
Delgado-Reynua, in spite of such a record and the plain
statutory text of § 1101(a)(47), argues that the BIA lacked legal
authority to order him removed and should have remanded to the IJ.
See Molina-Camacho, 393 F.3d at 941 (addressing discretionary relief
in the form of cancellation, rather than waiver under section
212(c), granted by the IJ and reversed on appeal to the BIA). Both
the Eighth and Ninth Circuits have addressed the legal question of
the BIA’s power to enter an order of removal upon review of an IJ’s
order. Id.; Solana-Chicas v. Gonzales, 440 F.3d 1050 (8th Cir.
2006) (addressing, as in Molina-Camacho, cancellation of removal
granted by the IJ and reversed on appeal to the BIA). We join the
Eighth Circuit in concluding that where the BIA reverses an IJ’s
grant of discretionary relief and gives effect to the IJ’s original
order of removability, the BIA has merely eliminated “impediments
to removal” and effected the original removal order. See Solana-
Chicas, 440 F.3d at 1054. Such disposition does not offend the
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scope of the powers granted to the BIA by either Congress or the
Attorney General. Id. Accordingly, Delgado-Reynua’s legal
challenge to the BIA’s authority to order removal is denied.
CONCLUSION
For the foregoing reasons, we VACATE the district court’s order
granting habeas relief, CONVERT Delgado-Reynua’s challenge to the
BIA’s order to a petition for review, DISMISS IN PART the petition
for lack of jurisdiction, and DENY IN PART the petition on the
merits.
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