Tecat v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-60480
Summary Calendar
OMAR ANTONIO TECAT,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of Orders of the
Board of Immigration Appeals
BIA No. A43 146 660
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Omar Antonio Tecat filed a 28 U.S.C. § 2241 petition
challenging a final order of deportation in the United States
District Court for the District of New Jersey. As Tecat’s
petition was pending on May 11, 2005, the effective date of the
REAL ID Act of 2005, and it challenged a final removal order
where the immigration judge completed proceedings at Oakdale,
Louisiana, the district court properly transferred the petition
to this Court. See REAL ID Act, Pub. L. No. 109-13, 119 Stat.
231, 311 (2005); 8 U.S.C. § 1252(b)(2); Rosales v. Bureau of
*
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this opinion should not be published and is not precedent except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.
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Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir.
2005), cert. denied 126 S. Ct. 1055 (2006). Pursuant to the REAL
ID Act, Tecat’s § 2241 petition is converted into a timely
petition for review. See Rosales, 426 F.3d at 736.
Also in May 2005, Tecat filed with the Third Circuit Court
of Appeals a petition for review in which he challenged the BIA’s
May 10, 2005, denial of a motion to reopen his removal
proceedings. Tecat’s petition was filed within the thirty-day
filing period set forth in 8 U.S.C. § 1252(b)(1). The Third
Circuit transferred the petition to this court because Tecat’s
case before the Immigration Court and his Motion to Reopen were
both heard by an Immigration Judge in Oakdale, Louisiana. See
8 U.S.C. § 1252(b)(2).
Liberal construction of Tecat’s pro se pleadings indicates
that Tecat is arguing that the repeal of Immigration and
Nationality Act (INA) § 212(c), 8 U.S.C. § 1182(c), was
impermissibly retroactively applied to him, that the denial of
INA § 212(c) relief violates due process, and that 8 C.F.R.
§ 1003.44, which provides for special motions to seek INA
§ 212(c) relief for certain aliens, violates equal protection
because aliens such as Tecat who have been deported pursuant to a
final deportation order and who have illegally returned to the
U.S. are unable to file a motion to reopen.
Tecat’s arguments are without merit. In Hernandez-Castillo
v. Moore, 436 F.3d 516, 519 (5th Cir. 2006), petition for cert.
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filed, 74 USLW 3572 (March 28, 2006) (no. 05-1251), this court
concluded that the application of IIRIRA’s repeal of INA § 212(c)
to aliens who, like Tecat, went to trial and were convicted of an
aggravated felony prior to the repeal of § 212(c), did not create
an impermissible retroactive effect. Id. at 517, 520.
Additionally, in United States v. Lopez-Ortiz, 313 F.3d 225, 230
(5th Cir. 2002), this court disagreed with the contention that
eligibility for discretionary relief under Immigration and
Naturalization Act § 212(c) is an interest warranting
constitutional due process protection. Because § 212(c) relief
is available within the broad discretion of the Attorney General,
it is not a right that is protected by due process. Id.
Finally, with regard to Tecat’s equal protection challenge,
“[i]n light of Congress’s plenary power to pass legislation
concerning the admission or exclusion of aliens, it is clear that
no more searching review than that of rational basis is
appropriate.” Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 332
(5th Cir. 2004). “Under rational basis review, differential
treatment ‘must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.’” Id. (quoting
FCC v. Beach Communications, 508 U.S. 307, 313 (1993)). Those
attacking the rationality of the legislative classification have
the burden of negating every conceivable basis that might support
it. Beach Communications, 508 U.S. at 313.
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As observed by the Ninth Circuit in Alvarenga-Villalobos v.
Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001), the Government has
a legitimate interest in discouraging aliens who have already
been deported from illegally reentering. The Ninth Circuit
therefore concluded that 8 C.F.R. § 1003.44, which permits aliens
who were in deportation proceedings before a certain date to file
motion to reopen to seek discretionary relief, but which
expressly excludes aliens with final order of deportation who had
illegally returned to United States, did not violate equal
protection. Id. at 1174. Tecat fails to discuss the regulations
that he challenges and he fails to challenge the bases for the
distinctions in the regulations. He thus does not negate every
conceivable basis that might support the distinctions set forth
in the regulation. Beach Communications, 508 U.S. at 313.
Tecat’s equal protection challenge therefore fails.
Tecat does not provide argument specifically addressing the
May 10, 2005, motion to reopen. Although pro se filings are
accorded liberal construction, pro se appellants are required to
brief the issues and reasonably comply with the requirements of
FED. R. APP. P. 28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
1995). Even pro se parties are required to identify and argue
some error in the district court’s decision. Id. Tecat’s
failure to challenge the BIA’s denial of his motion to reopen
amounts to an abandonment of his challenge to the denial of his
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motion to reopen. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
For the foregoing reasons, Tecat’s petitions for review are
DENIED.