Romero-Cortinas v. United States ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40870
Summary Calendar
FEDERICO ROMERO-CORTINAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(B-99-CV-200)
May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Federico Romero-Cortinas, an alien ordered to be removed from
the United States by the Immigration and Naturalization Service,
appeals the dismissal of his petition for a writ of error coram
nobis and 28 U.S.C. § 2241 writ of habeas corpus. The district
court concluded: coram nobis relief was no longer available; and
§ 2241 jurisdiction was eliminated under the permanent rules of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA).
Romero presents constitutional challenges to the proceedings
conducted by the immigration judge and the Board of Immigration
*
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this opinion should not be published and is not precedent except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.
Appeals, maintaining the proceedings lacked impartiality and
constituted an inadequate forum for consideration of his
constitutional claims. Romero also asserts that IIRIRA violates
the Constitution, primarily its prohibition against ex post facto
laws, by: (1) mandating removal of aliens who have been convicted
of aggravated felonies, even though those felonies were committed
prior to its enactment; and (2) denying him eligibility for a
waiver hearing at which time his right to family life could have
been considered. Romero buttresses these arguments by pointing to
purported violations of treaties, customary international law, and
jus cogens. Despite these contentions, he makes no assertion or
showing that his claims fall within the scope of the
constitutionally protected writ of habeas corpus, which is more
narrow than the writ made available in § 2241. See Max-George v.
Reno, 205 F.3d 194, 201-03 (5th Cir. 2000) (under 28 U.S.C. §
1252(a)(2)(C), all habeas petitions by aliens removable as
aggravated felons are to be dismissed for lack of jurisdiction
unless unlikely showing made that claims fall within protection of
constitutional writ), petition for cert. filed, (U.S. 23 Aug.
2000)(No. 00-6280). Neither of Romero’s concerns regarding
IIRIRA’s retroactive effect fall within the scope of the
constitutional writ. See Finlay v. INS, 210 F.3d 556, 557-58 (5th
Cir. 2000) (claim that ex post facto law denied petitioner
discretionary relief from removal fell outside scope of
constitutional writ because “Congress can attach new immigration
consequences to past criminal activity”). Additionally,
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international law does not control when, as here, there is a
“controlling executive or legislative act or judicial decision”.
See Gisbert v. U.S. Atty. Gen., 988 F.2d 1437, 1447, amended by,
997 F.2d 1122 (5th Cir. 1993). By failing to make a showing that
his claim falls under the protection of the constitutional writ,
Romero has not demonstrated that the district court erred in
dismissing his habeas petition for lack of jurisdiction. See Max-
George, 205 F.3d at 202-03.
Romero also contends that the district court erred in refusing
to consider his request for a writ of error coram nobis and in
stating that Federal Rule of Civil Procedure 60(b) had abolished
such relief. Because such a writ is unavailable in federal court
to attack a state criminal judgment, he has not shown that the
district court erred in refusing to consider the requested relief.
See Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982);
Cavett v. Ellis, 578 F.2d 567, 569 n.4 (5th Cir. 1978).
Romero also maintains that the district court erred in not
transferring his case to this court pursuant to 28 U.S.C. § 1631.
Under 28 U.S.C. § 1631, a case may be transferred to another court
only if it could have been brought in that court when filed.
Because Romero filed his petition in the district court more than
30 days after his removal order became final, the district court
could not have transferred the petition to this court as a petition
for review. See Finlay, 210 F.3d at 557; 8 U.S.C. § 1252(b)(1).
AFFIRMED
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