Montes v. Ashcroft ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51081
Summary Calendar
JUAN MANUEL MONTES
Petitioner - Appellant
v.
JOHN ASHCROFT, U.S. Attorney General;
LUIS GARCIA, District Director of the
El Paso District of the Immigration
Naturalization Service
Respondents - Appellees
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CV-293-DB
- - - - - - - - - -
May 18, 2001
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
PER CURIAM:*
Juan Manuel Montes appeals the district court’s dismissal of
his 28 U.S.C. § 2241 petition for lack of jurisdiction. Montes
argues that the district court incorrectly based its dismissal on
its erroneous finding that he did not file a petition for review
from the decision of Board of Immigration Appeals (BIA).
The permanent provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) apply because the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-51081
-2-
removal proceedings against Montes commenced after April 1, 1997.
See Max-George v. Reno, 205 F.3d 194, 197 n.3 (5th Cir.),
petition for cert. filed, (U.S. Aug. 23, 2000) (No. 00-6280).
Montes was found removable based on his conviction for armed
robbery. This court held in Max-George that the “IIRIRA’s
permanent provisions eliminate § 2241 habeas corpus jurisdiction
for those cases that fall within [8 U.S.C.] § 1252(a)(2)(C).”
Max-George, 205 F.3d at 199. Because Montes’ order of removal
falls within the provisions set forth in 8 U.S.C.
§ 1252(a)(2)(C), the district court lacked jurisdiction to
consider the instant 28 U.S.C. § 2241 petition. The error of
fact regarding whether Montes had filed a petition for review
from the BIA’s decision does not bring this case within the scope
of the habeas writ remaining under the Constitution. See
Garnica-Vasquez v. Reno, 210 F.3d 558, 560 (5th Cir. 2000).
Accordingly, the district court’s judgment of dismissal is
AFFIRMED.