Alex Bini v. Curtis Aljets , 36 F. App'x 868 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3234
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Alex Bini, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Curtis Aljets, District Director *
Immigration and Naturalization (INS), * [UNPUBLISHED]
*
Appellee. *
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Submitted: April 5, 2002
Filed: April 11, 2002
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Nigerian citizen Alex Bini appeals the district court’s1 denial of his pro se
28 U.S.C. § 2241 petition. We affirm.
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable E. S.
Swearingen, United States Magistrate Judge for the District of Minnesota.
In 1999, the Immigration Judge (IJ) found Mr. Bini removable (1) for
overstaying the brief period of permission to be in the United States he had received
in 1984, in violation of the Immigration and Naturalization Act (INA) § 237(a)(1)(B),
8 U.S.C. § 1227(a)(1)(B); and (2) for having committed “two crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct,” in violation of
INA § 237(a)(2)(A)(ii), 8 U.S.C. §1227 (a)(2)(A)(ii). The IJ denied Mr. Bini’s
withholding-of-removal application and denied voluntary departure. The Board of
Immigration Appeals (BIA) affirmed the IJ’s decision and dismissed the appeal in
February 2000.
Mr. Bini did not directly appeal to this court following the BIA’s adverse
ruling. Instead, two months later he filed in the district court a complicated habeas
petition and supporting brief, stating he clearly established a probability of torture
and persecution if returned to Nigeria and “has” requested reopening of his
proceedings to apply for Convention relief. The district court denied Mr. Bini’s
petition but granted his request for a stay pending appeal.
On appeal, in addition to attacking the BIA decision, Mr. Bini appears to argue
that the district court erred in upholding his continuing detention under 8 U.S.C.
§ 1231(a)(6), that the court erred in its determination that he was ineligible for relief
under INA § 212(c), 8 U.S.C. § 1182(c) (repealed in 1996), and that this court should
“grant the motion [to reopen].”
We conclude the district court correctly determined it lacked jurisdiction to
entertain Mr. Bini’s challenges to the BIA’s decision in a habeas proceeding: Such
challenges must be raised in a petition for review of the BIA’s decision. See 8 U.S.C.
§ 1252(b)(1), (2), (9) (petition for review, filed within 30 days of final removal order,
shall be filed with appeals court; judicial review of all questions of law and fact,
including interpretation and application of constitutional and statutory provisions,
arising from action taken or proceeding brought to remove alien “shall be available
-2-
only in judicial review of a final order under this section”); Foti v. INS, 375 U.S. 217,
224 (1963) (Congress’s “fundamental purpose” behind review provision vesting
exclusive review in appellate courts was to abbreviate judicial-review process in
order to frustrate practices whereby persons subject to deportation were forestalling
departure by dilatory tactics in courts).
The district court, which did have jurisdiction over Mr. Bini’s challenge to his
continuing detention, see 28 U.S.C. § 2241(c)(3) (granting courts authority to
determine whether detention is in violation of laws of United States), correctly upheld
the detention because when the habeas petition was filed, the Immigration and
Naturalization Service (INS) had not detained him beyond the initial ninety-day
removal period prescribed by 8 U.S.C. § 1231(a)(1)(A), and the INS has discretion
to extend Mr. Bini’s detention because he is removable for moral-turpitude crimes,
see 8 U.S.C. § 1231(a)(6) (alien who is removable under § 1227(a)(2) or who
Attorney General determines to be risk to community or unlikely to comply with
removal order may be detained beyond removal period). Further, the removal period
has been extended by Mr. Bini’s obtaining a stay. See 8 U.S.C. § 1231(a)(1)(C)
(removal period shall be extended beyond period of 90 days and alien may remain in
detention during such extended period if alien acts to prevent removal).
Additionally, the district court properly rejected Mr. Bini’s argument
concerning section 1182(c) relief, because that section had been repealed, pertained
to lawfully admitted permanent-resident aliens--not to overstays, and afforded no
basis for habeas relief. Finally, Mr. Bini’s request for us to “grant the motion [to
reopen]” is misplaced. See 8 C.F.R. § 3.2(g)(2)(i) (2001) (motion to reopen “shall be
filed directly with the Board”).
Accordingly, we affirm the district court’s decision.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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