Fonge v. Comfort , 62 F. App'x 266 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES ELUG FONGE,
Petitioner - Appellant,
v. No. 02-1400
(D. Ct. No. 99-RB-1348)
MICHAEL COMFORT, Acting (D. Colo.)
District Director, United States
Immigration and Naturalization
Service, Denver, Colorado, and all/any
other person have me in custody,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, McKAY, and HOLLOWAY, Circuit
Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Pro se petitioner-appellant Charles E. Fonge 1 appeals the district court’s
August 29, 2002, denial of his petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2241, seeking relief from a final order of removal issued by the Board of
Immigration Appeals (“BIA”). We exercise jurisdiction pursuant to 8 U.S.C.
§ 1105a 2 and 28 U.S.C. § 2241 and DISMISS the petition.
I. Background
Fonge filed this habeas petition in the United States District Court for the
District of Colorado under 28 U.S.C. § 224. The district court denied Fonge’s
petition on August 29, 2002, concluding that it lacked subject matter jurisdiction
because Fonge had failed to exhaust his administrative remedies. Additionally,
the district court held that Fonge had failed to state a claim upon which relief
could be granted for two reasons: (1) the rescission of Fonge’s legal permanent
1
Initially, we note that we grant petitioner’s motion to proceed in forma pauperis.
2
Before 1996, we had jurisdiction to review final deportation orders under 8
U.S.C. § 1105a. In 1996, however, this provision was repealed by the Illegal
Immigration Reform & Immigrant Responsibility Act (“IIRIRA”), Pub. L. No.
104-208, 110 Stat. 3009. Although IIRIRA repealed Section 1105a, it remains
substantially in effect in those cases subject to IIRIRA’s transitional rules.
Because Fonge’s first deportation proceeding commenced prior to April 1, 1997,
the effective date of IIRIRA , and his final order of deportation was entered after
October 30, 1996, any challenge to this deportation is governed by pre-IIRIRA
rules. Similarly, because the INS commenced the second deportation proceeding
against petitioner before April 1, 1997, and because the agency’s final deportation
order was entered after October 31, 1996, both the second deportation order and
the rescission of his LPR status are governed by the pre-IIRIRA rules as amended
by the transitional rules. Woldemeskel v. I.N.S. , 257 F.3d 1185, 1187 n.1 (10th
Cir. 2001).
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resident (“LPR”) status in 1993 was irrelevant to the issue of his present
exclusion; and (2) Fonge’s attempt to remain in the United States was futile due
to his prior criminal conviction for “falsely claiming citizenship.” 3
Fonge then appealed to this court, challenging the following actions: (1)
the first deportation order, entered in 1990; (2) the rescission, allegedly without
notice, of Fonge’s LPR status in 1993; and (3) the second deportation order,
entered in 1996, which became a final order on December 18, 1997. 4 While
Fonge’s habeas petition was still pending before this court, the INS deported
Fonge to Cameroon, West Africa. All other relevant facts are set forth in the
district court’s order.
3
On July 3, 1990, Fonge pleaded guilty and was convicted of falsely claiming
United States citizenship in violation of 18 U.S.C. § 911. The district court relied
upon 8 U.S.C. § 1182(a)(6)(C)(ii) in reaching its conclusion that Fonge’s attempt
to remain in the United States was futile. Section 1182(a)(6)(C)(ii)(I) provides:
“Any alien who falsely represents, or has falsely represented, himself or herself to
be a citizen of the United States for any purpose or benefit under this chapter
(including section 1324a of this title) or any other Federal or State law is
inadmissible.”
4
Fonge’s application for habeas relief consists of over 400 handwritten pages,
excluding exhibits. To the extent the petitioner attempts to allege other claims,
such claims are not cognizable under the facts alleged in the application. See
Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (“The broad reading of the
plaintiff’s complaint does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be based.”). Moreover, it
is not the Court’s duty to search through hundreds of pages of redundant and
often irrelevant material to ascertain potential claims the petitioner might have
brought. See Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995).
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II. Discussion 5
A. Standard of Review
As a preliminary matter, we note that we must liberally construe the
pleadings of a pro se plaintiff. Haines v. Kerner, 404 U.S. 519, 520 (1972). We
review a district court’s dismissal for lack of subject matter jurisdiction de novo.
Johnson v. Rodrigues , 226 F.3d 1103, 1107 (10th Cir. 2000). Further , the
sufficiency of a complaint under Rule 12(b)(6) is a question of law, which we
review de novo. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999). A court considering a Rule 12(b)(6) motion must not weigh
potential evidence; instead, we accept all well-pleaded allegations as true and
view them in the light most favorable to the nonmoving party. Id. A court may
not grant a Rule 12(b)(6) motion “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to
relief.” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (internal
quotation marks omitted).
B. Analysis
We must initially examine two jurisdictional issues to determine whether
5
IIRIRA repealed and reorganized many of the provisions of the United States
Code relevant to this case. Because prior law remains in effect for cases
governed by IIRIRA’s transitional rules, where it is appropriate we cite to the
sections in effect prior to the amendments.
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we can entertain Fonge’s appeal. First, we must decide whether the district court
properly exercised subject matter jurisdiction under section 2241. Second, we
must determine whether Fonge’s recent deportation rendered his habeas petition
moot.
Concerning the former, prior to the enactment of IIRIRA, federal courts
clearly had jurisdiction over § 2241 habeas petitions like those brought by
petitioner. See Galaviz-Medina v. Wooten, 27 F.3d 487, 491-92 (10th Cir. 1994).
IIRIRA’s transitional rules do not alter our jurisdiction over § 2241 petitions.
See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146 (10th Cir. 1999); see also
Ho v. Greene, 204 F.3d 1045, 1050-51 (10th Cir. 2000), overruled in part by
Zadvydas v. Davis, 533 U.S. 678 (2001).
Regarding the latter, we have previously held that deportation does not
render an alien’s § 2241 petition moot if the alien alleges sufficient collateral
consequences. Tapia Garcia v. I.N.S., 237 F.3d 1216, 1217-18 (10th Cir. 2001).
In this case, however, Fonge failed to advance any argument regarding collateral
consequences, and even though he appears pro se, we cannot make his argument
for him.
Further, we agree with the district court’s conclusion that Fonge’s appeal is
futile. Under 8 U.S.C. § 1182(a)(6)(C)(ii), 6
“[a]ny alien who falsely represents,
6
Here, we cite to current law regarding the “inadmissibility” of aliens.
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or has falsely represented, himself or herself to be a citizen of the United States
for any purpose or benefit under this chapter (including section 1324a of this
title) or any other Federal or State law is inadmissible.” Based on Fonge’s earlier
conviction under 18 U.S.C. § 911, which makes it unlawful to “falsely and
willfully represent[] [oneself] to be a citizen of the United States,” he is clearly
inadmissible under section 1182(a)(6)(C)(ii). Thus, Fonge is not admissible for
reasons wholly separate from the bases underlying the earlier deportation orders,
which precludes this court from granting him reentry .7
7
We also note that, to the extent we were to consider the correctness of the
deportation orders in this case, it is clear from the record that Fonge was properly
adjudged “excludable.” Under the law applicable at the time, a previously
removed alien was “excludable,” if she (1) “ha[d] been arrested and deported”
and (2) “[sought] admission within 5 years of the date of such deportation or
removal” without the consent of the Attorney General. 8 U.S.C. § 1182(a)(6)(B).
The record clearly supports the conclusion that Fonge violated section
1182(a)(6)(B). Further, as the immigration judge noted during the December 8,
1997, hearing, Fonge was also excludable under 8 U.S.C. § 1182(a)(6)(C)(i),
based on the representations he made to the INS in his November 11, 1994, I-90
Form.
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III. Conclusion
Based on the foregoing, we DISMISS the petition. All other outstanding
motions are denied.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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