Rivera-Sanchez v. Reno

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________

m 99-20051
Summary Calendar
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FELIX RIVERA-SANCHEZ,
Petitioner-Appellant,
VERSUS

JANET RENO,
United States Attorney General;
RICHARD B. CRAVENER, District Director,
United States Immigration and Naturalization Service,
Respondents-Appellees.
_________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________

December 30, 1999

Before SMITH, BARKSDALE, and Because Rivera’s deportation proceedings
PARKER, Circuit Judges. began before April 1, 1997, and ended more
than thirty days after September 30, 1996, this
PER CURIAM: case is governed by the uncodified judicial
review transitional provisions found in
Felix Rivera-Sanchez (“Rivera”) appeals the § 309(c)(4) of the Illegal Immigration Reform
dismissal of his petition for writ of habeas and Immigrant Responsibility Act (“IIRIRA”).
corpus filed pursuant to 28 U.S.C. § 2241. See Requena-Rodriguez, 190 F.3d at 302-03.
The district court dismissed because it Under this transitional regime, “habeas
concluded that Rivera had failed to exhaust his jurisdiction continues to exist under IIRIRA’s
administrative remedies. transitional rules in cases involving final orders
of deportation against criminal aliens, and []
We review de novo the district court’s legal habeas jurisdiction is capacious enough to
determinations, including those concerning include constitutional and statutory challenges
jurisdiction. See Requena-Rodriguez v. if those challenges cannot be considered on
Pasquarell, 190 F.3d 299, 302 (5th Cir. direct review by the court of appeals.” Id.
1999). Because Rivera is the party seeking to at 305.
invoke federal jurisdiction, he bears the burden
of demonstrating that the exercise of that The government argues that the district
jurisdiction was proper. See Stockman v. court lacked jurisdiction over Rivera’s habeas
Federal Election Comm’n, 138 F.3d 144, 151 petition because IIRIRA did not operate to bar
(5th Cir. 1998). him from bringing a petition for review in this
court. According to the government, Rivera’s
criminal offenseSSaiding and abetting an aggravated felony after admission is
alien’s entry at an improper time and place in deportable.
violation of 8 U.S.C. § 1325(a)SSis not one of
the offenses referenced in IIRIRA The government contends that the IJ was
§ 309(c)(4)(G), the provision that forecloses mistaken in concluding that Rivera’s
our jurisdiction to review petitions filed by conviction under 8 U.S.C. § 1325(a) qualifies
aliens who are deportable because they have as a conviction of an aggravated felony. It
committed certain offenses. See Nguyen v. notes that since Rivera filed his habeas
INS, 117 F.3d 206, 207 (5th Cir. 1997). petition, the BIA has held that the offense
Rivera asserts merely that he has committed a described in § 1325(a) is not an aggravated
covered offense; he does not respond to the felony. See In re Alvarado-Alvino, Interim
government’s jurisdictional argument. Decision (BIA) 3391, 1999 WL 322973 (BIA
1999). In Alvarado-Alvino, the BIA held that
Under IIRIRA § 309(c)(4)(G), by its plain language, § 1101(a)(43)(N)
includes only convictions under § 1324(a), not
there shall be no appeal permitted in the those under § 1325(a). The BIA noted that §
case of an alien who is inadmissible or 1101(a)(43)(O) does include § 1325(a)
deportable by reason of having convictions as aggravated felonies, but only
committed a criminal offense covered in when “committed by an alien who was
section 212(a)(2)[ 1 ] or section previously deported on the basis of a
241(a)(2)(A)(iii), (B), (C), or (D)[2] of conviction.”
the Immigration and Nationality Act (as
in effect as of the date of the enactment
of this Act), or any offense covered by
section 241(a)(2)(A)(ii)[3] of such Act
(as in effect on such date) for which
both predicate offenses are, without
regard to their date of commission,
o t herwise covered by section
241(a)(2)(A)(i)[4] of such Act (as so in
effect).

See Lerma de Garcia v. INS, 141 F.3d 215,
216 (5th Cir. 1998). The IJ concluded that
Rivera’s offense constituted an aggravated
felony pursuant to the terms of 8 U.S.C.
§ 1101(a)(43)(N), which states that an
aggravated felony is “an offense described in
paragraph (1)(A) or (2) of section 1324(a) of
this title (relating to alien smuggling).”
Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii),
noted the IJ, an alien who commits any

1
8 U.S.C. § 1182(a)(2) (West 1999).
2
8 U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or
(D).
3
8 U.S.C. § 1227(a)(2)(A)(ii).
4
8 U.S.C. § 1227(a)(2)(A)(i).

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 We agree with the BIA’s analysis. Rivera’s
conviction of violating § 1325(a) is outside the
ambit of § 1101(a)(43)(N), which is explicitly
confined to convictions under § 1324(a).
Likewise, because Rivera did not violate
§ 1325(a) after being previously deported, he
did not commit an aggravated felony as
defined in § 1101(a)(43)(O).

As we have stated, under IIRIRA’s
transitional rules, habeas jurisdiction exists
only where “challenges cannot be considered
on direct review by the court of appeals.”
Requena-Rodriguez, 190 F.3d at 305. Section
309(c)(4)(G) of IIRIRA denies us jurisdiction
to consider petitions for review only when an
alien has committed a referenced criminal
offense. Because Rivera’s conviction for
violating § 1325(a) does not qualify as an
aggravated felony that would trigger IIRIRA
§ 309(c)(4)(G), and because none of the other
classes of offenses listed in § 309(c)(4)(G) is
applicable to him, we have jurisdiction to
review directly a deportation order entered
against Rivera. Accordingly, the district court
lacked jurisdiction to entertain Rivera’s habeas
petition. See Requena-Rodriguez, 190 F.3d
at 305.

Accordingly, the judgment is VACATED,
and a judgment of dismissal for want of
jurisdiction is RENDERED.

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