Diabate v. INS ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2243
AHMET DIABATE,
Petitioner, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ahmet Diabate on brief pro se.
Robert D. McCallum, Jr., Assistant Attorney General, Terri J.
Scadron, Senior Litigation Counsel, and Lyle D. Jentzer, Attorney,
Office of Immigration Litigation, on brief for appellee.
April 3, 2002
Per Curiam. Ahmet Diabate, a native and citizen of
Guinea, appeals the district court's dismissal of the petition
he filed for a writ of habeas corpus under 28 U.S.C. § 2241.
An Immigration Judge found Diabate removable on account of his
conviction of an aggravated felony, pursuant to 8 U.S.C. §
1227(a)(2)(A)(iii), but granted his application for withholding
of removal under 8 U.S.C. § 1231(b)(3). Diabate's § 2241
petition alleged that his due process rights were violated
during the INS's appeal to the Board of Immigration Appeals
("BIA") because he was never provided a copy of the transcripts
of the proceedings before the Immigration Judge. Diabate also
challenges the BIA's denial of withholding of removal, claiming
that he established his eligibility for that relief as a matter
of law.
Although the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) eliminated judicial review
of final removal orders based on an alien's status as an
aggravated felon, federal courts "retain subject matter
jurisdiction over [§ 2241] habeas petitions brought by aliens
facing removal to the extent those petitions are based on
colorable claims of legal error, that is, colorable claims that
an alien's statutory or constitutional rights have been
violated." Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002);
see INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001); Mahadeo v.
Reno, 226 F.3d 3, 8 (1st Cir. 2000), cert. denied, 121 S.Ct.
2590 (2001).
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Accordingly, Diabate's due process claim was within
the scope of § 2241 review. However, since Diabate's brief to
the BIA did no more than vaguely allude to the fact that he had
not received the transcripts, we doubt that the due process
claim was sufficiently exhausted. See Bernal-Vallejo v. INS,
195 F.3d 56, 64 (1st Cir. 1999); Ravindran v. INS, 976 F.2d
754, 761 (1st Cir. 1992). Moreover, even if we assume that the
claim was exhausted, we find no prejudicial error.1
Whether the district court had jurisdiction to
consider the withholding of removal claim is less clear since
deciding whether petitioner established his eligibility for
that relief involves a review of both factual and legal
findings. In any event, even assuming that the scope of habeas
review extends to this kind of claim and that the district
court should have considered it, we think petitioner has failed
to establish that he was eligible for withholding of removal as
a matter of law. The evidence petitioner presented was
insufficient to compel a finding that his membership on, or
defection from, Guinea's national soccer team constituted a
political opinion or "membership in a particular social group"
as the BIA has interpreted that phrase. See 8 U.S.C. §
1To the extent Diabate contends that, under Accardi v.
Shaughnessy, 347 U.S. 260 (1954), no showing of prejudice was
required because the failure to provide the transcripts violated an
agency regulation or rule, we note that the argument is not
properly before us since petitioner did not raise it below. See
Amcel Corp. v. Int'l Exec. Sales, Inc., 170 F.3d 32, 35 (1st Cir.
1999); United States v. Slade, 980 F.2d 27, 30-31 (1st Cir. 1992).
In any event, the argument is meritless.
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1231(b)(3); Matter of Acosta, 19 I & N. Dec. 211, 233-34 (BIA
1985); accord Alvarez-Flores v. INS, 909 F.2d 1, 7 (1st Cir.
1990).
Affirmed.
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