Salazar v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GUILLERMO SALAZAR,
Petitioner-Appellant,
v. No. 03-2273
(D.C. No. CIV-03-175-LH/ACT)
JOHN ASHCROFT, (D. N.M.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, MURPHY , Circuit Judge, and CAUTHRON , **
Chief District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the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. The 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.
**
The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
Petitioner Guillermo Alfonso Salazar Velasquez, appearing pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition challenging
the final order of removal entered by the Board of Immigration Appeals (BIA).
The district court dismissed some of petitioner’s claims and transferred two others
to the Ninth Circuit. 1
We review the district court’s dismissal of a § 2241 habeas
petition de novo. See Patterson v. Knowles , 162 F.3d 574, 575 (10th Cir. 1998).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Petitioner is a native of Colombia who entered the United States as a lawful
permanent resident in 1975. In 1983, petitioner was convicted in federal court of
importing cocaine, an aggravated felony, see 8 U.S.C. § 1101(a)(43)(B), and
1
Petitioner asserted a claim in his § 2241 petition that he is a naturalized
citizen because he served in the United States Army from February 1977 to April
1978. The exclusive means of asserting such a nationality claim is to file a
petition for review with the court of appeals for the judicial district in which the
immigration judge completed the proceedings, which, in this case, is the Ninth
Circuit Court of Appeals. See 8 U.S.C. § 1252(b)(5). Thus, the magistrate judge
concluded the district court lacked jurisdiction over this claim, as well as
petitioner’s related claim that he is entitled to withholding of removal as a
naturalized citizen. The magistrate judge recommended these claims be
transferred under 28 U.S.C. § 1631 to the Ninth Circuit, for resolution as a
petition for review in accordance with § 1252(b)(5). The district court adopted
the magistrate judge’s recommendation, and, in the same order dismissing
petitioner’s § 2241 claims, it transferred the petitioner’s nationality claim and the
related withholding of removal claim to the Ninth Circuit. Although the district
judge did not expressly sever these claims under Fed. R. Civ. P. 21, the transfer
order clearly indicates that the district court intended to sever these claims and
create two separate actions. Thus, we conclude this court has jurisdiction to hear
this appeal without a Rule 54(b) certification. See FDIC v. McGlamery , 74 F.3d
218, 222 (10th Cir. 1996).
-2-
failure to appear at trial, and was sentenced to thirty-nine months’ imprisonment.
In 1989, petitioner was convicted in federal court of conspiring to possess cocaine
with the intent to distribute and with possessing six kilograms of cocaine with
intent to distribute, both aggravated felonies, which subjected him to removal.
See 8 U.S.C. § 1227(a)(2)(A)(iii); § 1101(a)(43)(B). He was sentenced to twenty
years’ imprisonment.
The Immigration and Naturalization Service (INS) 2
commenced removal
proceedings in California in 1999. 3
Following numerous hearings, the
immigration judge (IJ) denied petitioner’s application for asylum, withholding of
removal, and protection under the Convention Against Torture, and ordered him
removed to Colombia or Spain. In a reasoned decision, the BIA dismissed
petitioner’s appeal. The Ninth Circuit dismissed his petition for review because it
lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(C) (barring courts from reviewing
2
On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002). Because the majority of the events
at issue here predate that reorganization, we continue to refer to the INS in this
order and judgment.
3
Because removal proceedings were commenced after April 1, 1997, the
permanent provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 apply. Tapia Garcia v. INS , 237 F.3d 1216, 1218 n.2
(10th Cir. 2001).
-3-
final removal orders of aliens who have been convicted of certain aggravated
felonies).
Petitioner, who is incarcerated in New Mexico, then filed his § 2241 habeas
petition in New Mexico district court. He asserted numerous arguments in
support of his claim that his Fifth Amendment rights were violated during the
removal proceedings. Many of petitioner’s claims challenged factual findings by
the IJ and the BIA. The district court correctly ruled it lacked jurisdiction over
these claims because “[o]nly questions of pure law will be considered on § 2241
habeas review.” Latu v. Ashcroft , 375 F.3d 1012, 1019 (10th Cir. 2004) (quoting
Bowrin v. INS , 194 F.3d 483, 490 (4th Cir. 1999)). Petitioner also asserted very
generally that the proceedings violated his due process rights, but he articulated
no alleged procedural defect other than his complaint that the proceedings were
conducted before different immigration judges and agency counsel. This claim is
without merit. The BIA issued a detailed and reasoned determination and,
therefore, our review is limited to the BIA’s decision, not that of the immigration
judge. See Rivera-Jimenez v. INS , 214 F.3d 1213, 1216 (10th Cir. 2000).
Finally, the district court considered petitioner’s claim that the loss of his
military retirement benefits which will result from his removal violates his due
process and double jeopardy rights. We conclude, for substantially the same
reasons stated in the magistrate judge’s September 24, 2003 recommendation,
-4-
adopted by the district court on October 9, 2003, that petitioner’s constitutional
rights have not been denied because any loss of benefits is neither a taking
without just compensation, nor a form of criminal punishment.
The judgment of the district court is AFFIRMED. Petitioner’s motions for
appointment of counsel, for oral argument, and to supplement the record are
DENIED. The mandate shall issue forthwith.
Entered for the Court
Deanell Reece Tacha
Chief Judge
-5-