Delgado-Reynua v. Gonzales

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waiver of removability under the now-repealed section 212(c) of the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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