Rodriguez v. Reno

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-4426 1/04/99
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 97-CV-3108-JAL
ERNESTO ALONSO MEJIA RODRIGUEZ,
Petitioner-Appellant,
versus
JANET RENO, as Attorney General of the United States,
and the IMMIGRATION AND NATURALIZATION SERVICE,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 1999)
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit
Judge.
HULL, Circuit Judge:
Appellant Ernesto Alonso Mejia Rodriguez (“Mejia”) appeals the district
court’s dismissal of his § 2241 petition for a writ of habeas corpus, filed in 1998,
challenging his final deportation order entered in 1994. After review, we affirm.
I. Facts and Procedural History
Mejia is a native of Honduras who lawfully entered the United States as a
nonimmigrant visitor on November 17, 1980.
A. Mejia’s Criminal Offense
On April 14, 1986, Mejia was charged in Florida state court with possession
of cocaine, trafficking in cocaine, and conspiracy. On July 24, 1986, Mejia pled no
contest to the cocaine-trafficking charge. As part of a plea agreement, the court
withheld a final adjudication of guilt and sentenced Mejia to a one-year term of
youth-offender incarceration and two years to be served in a “Community Control
Program.”
Mejia introduced evidence in the district court which established that he
entered his no-contest plea in reliance on certain representations.1 Specifically,
both the trial court and Mejia’s counsel advised him that his no-contest plea would
not yield any adverse immigration consequences. In addition, Mejia was advised
1
Mejia established the terms of his plea agreement and his plea colloquy through
affidavits from his attorney, the prosecutor, and the sentencing judge.
2
that his criminal record would be sealed upon completion of his probationary
sentence.
Prior to his first deportation hearing, Mejia filed a petition in Florida state
court to seal his criminal record. The Florida court denied Mejia’s petition. After
his first deportation hearing, Mejia filed a motion for reconsideration of the state
court’s denial of his petition to seal his criminal record. Mejia’s motion contended
that he entered his no-contest plea in reliance on the court’s representation that his
criminal record would be sealed and that his plea would not cause any
“immigration problems.” On December 4, 1990, the state court granted Mejia’s
petition to seal his criminal records.
B. Deportation Proceedings
On March 8, 1990, the INS commenced deportation proceedings against
Mejia. The INS issued an Order to Show Cause which asserted two grounds for
deportation. First, the INS charged Mejia with deportability under INA §
241(a)(2), 8 U.S.C. § 1251(a)(2) (1990), as an alien who had entered the United
States without inspection by an immigration officer, and under INA § 241(a)(11), 8
U.S.C. § 1251(a)(11) (1990), as an alien convicted of a crime involving controlled
substances.
3
On December 6, 1990, the INS amended its show-cause order withdrawing
these two grounds for deportation and charging Mejia with deportability under
INA § 241(a)(2), 8 U.S.C. § 1251(a)(2)(1990), for overstaying his nonimmigrant
visa. The INS alleged that Mejia originally had entered the United States as a
nonimmigrant visitor and later changed his status to nonimmigrant student.
According to the INS, Mejia’s nonimmigrant-student visa expired in August 1990.
After the state court had sealed Mejia’s criminal record, the immigration
judge found Mejia deportable. On January 24, 1991, the immigration judge
entered a deportation order concluding that Mejia had unlawfully remained in the
United States beyond the period allowed by his nonimmigrant visa. However, the
immigration judge allowed Mejia leave to file for a suspension of deportation. On
February 21, 1991, Mejia filed for suspension of deportation under INA § 244, 8
U.S.C. § 1254(a)(2) (1991).2
2
At the time of Mejia’s initial deportation proceedings, the Attorney General could order
the “suspension of deportation” if: (1) deportation was based on certain specified grounds, (2)
the alien had been “physically present in the United States for a continuous period of not less
than ten years” after becoming deportable, (3) in that time was a person of “good moral
character”, and (4) in the opinion of the Attorney General, deporting the alien would cause
“exceptional and extremely unusual hardship” to the alien or any of the alien’s “spouse, parent,
or child” who are United States citizens. INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1991). At the
time of Mejia’s deportation proceedings, INA § 101(f) listed a number of factors that precluded
an alien from being considered a “person of good moral character”, and this list included aliens
who are deportable for a conviction involving controlled substances. INA § 101(f), 8 U.S.C. §
1101(f) (1991). The Attorney General possessed the discretion to interpret narrowly the
“exceptional and extremely unusual hardship” element of the suspension-of-deportation analysis.
Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982). Accordingly, Mejia has not
4
The INS immediately moved to pretermit Mejia’s motion for suspension of
deportation. The INS argued that Mejia’s drug conviction precluded a finding that
Mejia had been a person of “good moral character,” thus rendering him ineligible
for a suspension of deportation.
On August 2, 1991, following a hearing, the immigration judge granted the
INS’ motion to pretermit Mejia’s motion for a suspension of deportation and
demonstrated that even without his drug conviction, he would have been found eligible for this
extraordinary relief.
IIRIRA replaced suspension of deportation with a new, but similar, procedure called
“cancellation of removal.” INA § 240A, 8 U.S.C. §1229b (Supp. 1998). A non-permanent
resident alien is eligible for a cancellation of removal and the adjustment of status “to an alien
lawfully admitted for permanent residence” if the alien:
(A) has been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application [for
cancellation of removal];
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title; and
(D) establishes that removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
INA § 240A, 8 U.S.C. § 1229b (Supp. 1998). Unlike the old suspension-of-deportation statute,
INA § 244, the cancellation-of-removal statute specifically refers to 8 U.S.C. § 1182(a)(2)
(Supp. 1998) and thereby precludes by its own terms cancellation of removal for anyone
convicted of, among other listed offenses, an offense involving controlled substances. INA §
240A, 8 U.S.C. § 1229b(C) (Supp. 1998). Nevertheless, as was the case prior to IIRIRA, INA §
101(f), 8 U.S.C. § 1101(f) (Supp. 1998), continues to exclude anyone convicted of a crime
involving controlled substances from the definition of a “person of good moral character.”
Therefore, under the INA as amended by IIRIRA, an alien convicted of a controlled-substance
offense is ineligible for cancellation of removal by the terms of INA § 240A, 8 U.S.C. § 1229b
(Supp. 1998), and because such an alien still can not meet the definition of “a person of good
moral character.” Moreover, as was the case with suspension of deportation, as to those
statutorily eligible, cancellation of removal remains a discretionary act.
5
ordered Mejia deported to Honduras. First, the immigration judge admitted into
evidence the records of Mejia’s cocaine conviction that had been sealed by the
Florida state court. The immigration judge specifically noted that he admitted the
records only for the purpose of considering Mejia’s application for suspension of
deportation and not to establish another ground for deportation. The immigration
judge found that these records established a conviction as defined under federal
immigration law. Based on his conviction for cocaine trafficking, the immigration
judge found that Mejia could not be deemed a person of “good moral character”
and therefore could not meet the requirements for suspension of deportation under
INA §§ 244(a)(2) & 101(f), 8 U.S.C. § 1254(a)(2) & 1101(f) (1991).
Mejia appealed the immigration judge’s August 1991 decision to the BIA,
and on January 12, 1994, the BIA affirmed the deportation order entered by the
immigration judge. First, the BIA concluded that the immigration judge properly
found Mejia deportable for remaining in the United States following the expiration
of his student visa. In doing so, the BIA also rejected Mejia’s claim that he
remained in the United States only to contest his deportation. In addition, the BIA
upheld the immigration judge’s determination that Mejia had been “convicted” for
the purposes of federal immigration law regardless of the fact that the state court
had ordered Mejia’s records sealed. As a result of this conclusion, the BIA found
6
that Mejia was within a class of aliens who could be deported based on a
controlled-substance conviction and therefore concluded that the immigration
judge properly found that Mejia was ineligible for a suspension of deportation.
In a letter dated April 12, 1995, the INS informed Mejia that he was
scheduled to be deported on May 12, 1995, and ordered him to report to the INS on
that date for deportation to Honduras. Mejia did not appear for deportation as
ordered. Although Mejia could have sought judicial review of the BIA’s January
1994 decision, he did not do so and instead absconded.
C. Drug Conviction Vacated
While he remained a fugitive from deportation, on May 21, 1997, Mejia
petitioned in Florida state court for a writ coram nobis in which he sought to vacate
his drug-trafficking conviction. Mejia contended that he did not receive effective
assistance of counsel in his state criminal proceedings because he was not informed
of the immigration consequences of his no-contest plea.
On August 1, 1997, the state court vacated Mejia’s plea and sentence.
Subsequently, the Florida State’s Attorney announced a nolle prosequi of the
cocaine-trafficking charges against Mejia.
D. Mejia’s Motion to Reopen his Deportation Proceedings
7
On September 23, 1997, the INS took Mejia into custody to execute the final
deportation order entered in January 1994. On September 26, 1997, Mejia filed
two motions to reopen his deportation proceedings - one to the immigration judge
and one to the BIA. According to Mejia, the immigration judge refused to accept
this motion.
In an order dated November 27, 1998, the BIA denied Mejia’s motion to
reopen his deportation proceedings. The BIA noted that under 8 C.F.R. § 3.2(c)(2)
a motion to reopen deportation proceedings must be filed within 90 days of the
BIA’s decision or before September 30, 1996, whichever is later. As Mejia did not
file his motion to reopen until 1997, the BIA concluded that his motion was not
timely filed. On December 14, 1998, Mejia filed, in this Court, a petition for
review of the BIA’s November 1998 order. Mejia-Rodriguez v. INS, No. 98-5878.
E. Mejia’s Petition for a Writ of Habeas Corpus
On September 26, 1997, while his motion to reopen his deportation
proceedings was still pending before the BIA, Mejia filed a § 2241 petition for
habeas corpus in United States District Court for the Southern District of Florida.
28 U.S.C. § 2241. In this petition, Mejia alleged that the immigration judge’s
order pretermitting Mejia’s application for suspension of deportation was based
upon an unconstitutional conviction subsequently vacated by the Florida state
8
courts. Mejia’s petition further alleged that this ineffective assistance of counsel in
state court unconstitutionally tainted Mejia’s federal immigration proceedings
because it had the collateral effect of precluding Mejia’s application for suspension
of deportation, which was provided for under federal law. Finally, Mejia alleged
that denying him the right to seek a suspension of deportation based on his
unconstitutionally obtained state drug conviction constituted a deprivation of due
process. With his petition, Mejia also filed an emergency motion for a stay of
deportation.
On September 26, 1997, the district court dismissed Mejia’s petition and
denied his request for a stay of deportation. The district court found that Mejia’s
petition was not timely filed under INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1)
(1996).
Mejia filed a motion for reconsideration of the court’s order and for a stay of
his deportation. In his motion, Mejia argued that the district court had erroneously
relied on INA § 106(a)(1), a statute that had been repealed by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), and that his petition was based on 28
U.S.C. § 2241 - not INA § 106(a)(1). On October 7, 1997, the district court
granted Mejia’s motion to the extent it sought a stay of his deportation. The court
denied Mejia’s motion for reconsideration in an order dated November 14, 1997.
9
F. Mejia’s Renewed Habeas Petition
On November 21, 1997, Mejia filed a renewed petition for habeas corpus
under the same civil action number in the district court. In his new petition, Mejia
reiterated the claims that he asserted in his initial petition and again asserted § 2241
as the sole basis for the court’s jurisdiction.
On March 12 1998, the district court dismissed Mejia’s renewed petition and
denied his request for a stay of deportation. The district court found that under 8
C.F.R. § 3.23, a motion for reconsideration of an “administrative order of removal,
deportation, or exclusion” must be filed within thirty days of the order or before
July 31, 1996, whichever is later, and a motion to reopen deportation proceedings
must be filed within ninety days of the final order or before July 31, 1996,
whichever is later. The district court further noted that Mejia did not file his
motion to reopen until September 26, 1997, and that because the motion was not
timely filed, the immigration judge refused to consider his motion. The district
court reasoned that essentially Mejia’s habeas corpus petition “invited the court” to
force the immigration judge to consider an untimely motion to reopen that the
judge had refused to consider. The district court concluded that it “must decline
that invitation.”
10
On March 12, 1998, Mejia filed a Notice of Appeal of the district court’s
decision and, on March 13, 1998, moved for an emergency stay of his deportation.
On the same day, Judge Tjoflat temporarily stayed Mejia’s deportation, and on
March 26, 1998, Judge Tjoflat ordered that “[t]he stay of [Mejia’s] deportation
shall continue pending resolution of Richardson v. Reno, No. 98-04230.”
II. Standard of Review
The availability of habeas relief under § 2241 presents questions of law
which we review de novo. Nolen v. Jackson, 102 F.3d 1187, 1190 (11th Cir. 1997)
III. Discussion
A. Mejia’s Contentions
Mejia’s petitions for habeas relief focus on the collateral effect of his
unconstitutional drug conviction on his immigration status. According to Mejia,
the Florida courts have deemed his conviction “unconstitutional” because it was
obtained in violation of his Sixth Amendment right to the effective assistance of
counsel. Mejia contends that, although the conviction has been vacated, the
conviction continues to cause adverse consequences to his immigration status. It is
important to note, however, that Mejia is currently facing deportation for
overstaying his student visa - not for his drug conviction. Therefore, Mejia’s
contentions necessarily focus on only his argument that, except for the cocaine
11
conviction, he would have been eligible for a suspension of deportation.
According to Mejia, his unconstitutional conviction continues to prevent him from
being considered for a suspension of deportation. Through his petition for habeas
relief, Mejia seeks judicial review to remedy this alleged collateral effect of a
constitutional violation, which he contends constitutes a deprivation of due
process.3
As noted above, the district court dismissed Mejia’s petition noting that
Mejia was attempting to reopen his final 1994 deportation order through habeas.
The district court observed that a motion to reopen deportation proceedings must
be filed within certain time periods and that the immigration judge had refused to
consider Mejia’s motion to reopen because it was not timely filed. Accordingly,
the district court refused to order the immigration judge to consider an untimely
motion.
Similarly, on November 27, 1998, the BIA also denied Mejia’s motion to
reopen concluding that Mejia had not sought to reopen, in a timely fashion, his
deportation proceedings, which became final in 1994. The common theme of these
decisions is, in effect, that immigration proceedings, like judicial proceedings,
3
Mejia’s claims exclusively focus on his application for suspension of deportation, and
he does not challenge the validity of the grounds for deportation that the BIA affirmed in its
1994 order.
12
must be timely in order to ensure some degree of finality to the process.
Nevertheless, we do not address the merits of the district court’s decision because
we find that the district court lacked jurisdiction over Mejia’s § 2241 petition.
B. Section 2241 Jurisdiction
Mejia filed his first habeas petition in September 1997, well after the April
1, 1997, effective date of the Illegal Immigration and Immigrant Responsibility Act
of 1996 (“IIRIRA”). Thus, IIRIRA controls this case. This Court recently
concluded that Section 242(g) of the Immigration and Nationality Act (“INA”), as
amended by the AEDPA and IIRIRA, repeals district court jurisdiction to issue
writs of habeas corpus under § 2241 to aliens challenging their removal from the
United States or their detention while awaiting removal. Richardson v. Reno, ___
F.3d ___, No. 98-4230 (11th Cir. December 22, 1998). Mejia relied on § 2241 as
the sole jurisdictional basis for both of his petitions for habeas relief. As the
AEDPA and IIRIRA repealed such jurisdiction, the district court lacked
jurisdiction over Mejia’s petition.
In Richardson, this Court also determined that IIRIRA’s repeal of § 2241 is
not unconstitutional because IIRIRA does not eliminate all judicial review of
immigration matters. Instead, this Court in Richardson recognized that, under the
INA as amended by IIRIRA, Congress has mandated a consolidated form of
13
judicial review of proceedings to remove aliens from the United States – a petition
for review in the court of appeals, after a final removal order has been issued.4
For reasons similar to those articulated in Richardson, the repeal of § 2241
jurisdiction over Mejia’s petition is not unconstitutional. Specifically, Mejia has
not demonstrated that he has been denied access to judicial review of his 1994
deportation order. The hurdles Mejia currently faces arise because of Mejia’s
failure to seek judicial review, or to file a motion to reopen his deportation
proceedings, in a timely manner.5
As an initial matter, we note the focus of the judicial review currently sought
by Mejia. In his § 2241 petition, Mejia does not seek direct judicial review of the
1991 deportation order entered by the immigration judge or the 1994 BIA order
affirming the deportation order. Indeed, Mejia indisputably enjoyed the
opportunity for direct judicial review of these decisions, but opted to abscond from
the INS rather than avail himself of such opportunities. Instead, Mejia seeks a
4
The Court in Richardson also noted the minor exception to this unified judicial-review
process. INA § 242(e)(2) provides a truncated form of habeas review for non-resident aliens
summarily denied admission at ports of entry without any removal proceedings. 8 U.S.C. §
1252(e)(2) (Supp. 1998).
5
Prior to the AEDPA and IIRIRA, judicial review of deportation orders was available in
a petition for review to the court of appeals under INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1)
(1995). Likewise, under the INA as amended by IIRIRA, judicial review in the court of appeals
remains available of a removal order based on the overstay of a student visa. INA § 242(b)(2) &
(9), 8 U.S.C. § 1252(b)(2) & (9) (Supp. 1998).
14
judicial forum in which he can collaterally attack those orders by asserting that his
deportation proceedings were tainted by his unconstitutional, and later vacated,
state drug conviction. According to Mejia, this claim was unavailable to him until
1997 as a result of the ineffective assistance he received from his counsel during
his state criminal proceedings and deportation proceedings.
Thus, the actual focus of Mejia’s present attempt to secure judicial review is
the BIA’s November 1998 denial of Mejia’s motion to reopen his deportation
proceedings. In his motion to reopen, Mejia asserted generally the same arguments
that he asserts in his § 2241 petition – that his counsel was ineffective in his state
criminal proceeding and that this deficient representation tainted his deportation
proceedings. In his motion to reopen, Mejia also cited case law to support his
argument that a reopening of deportation is warranted when suspension of
deportation has been denied based on a criminal conviction which is subsequently
vacated.6 Apparently, the BIA was unpersuaded by these arguments and concluded
6
While Mejia may correctly argue that such changed circumstances warrant the
reopening of deportation proceedings, the potential impediment to reopening Mejia’s deportation
proceedings is not with the substantive merits of Mejia’s argument but with the timeliness of his
motion. This Court finds nothing inherently unconstitutional about time limits especially in light
of a prior opportunity for judicial review. The Supreme Court has recognized the profound
importance of ensuring a degree of finality in judicial proceedings. Calderon v. Thompson, 118
S. Ct. 1489, 1501 (1998) (“Finality . . . enhances the quality of judging.”). Although the Court
made this observation in the context of federal collateral review of state criminal proceedings,
finality serves similar policies in the context of immigration proceedings. Saiyid v. INS , 132
F.3d 1380, 1386 (11th Cir. 1998) (denying aliens’ petition to remand their case to the BIA in
order to allow them to present new evidence about changed circumstances relevant to their
15
that its regulations required it to dismiss Mejia’s motion as untimely. If any
judicial forum exists in which Mejia can assert the arguments rejected by the BIA
in its November 1998 order, the proper forum is only in Mejia’s petition for review
in the court of appeals and not through a § 2241 habeas petition.
As a general principle, judicial review of the BIA’s denial of a motion to
reopen can be secured through a petition for review. For example, in Stone v. INS,
514 U.S. 386, 405-6 (1995), the Supreme Court held that the ninety-day limitations
period7 for filing a petition of review of a final deportation order is not tolled by
the filing of a motion for reconsideration in the BIA. In Stone, the alien facing
deportation had filed a petition for review within ninety days of the BIA’s denial of
his motion “to [r]eopen and/or to [r]econsider” but not within ninety days of his
final deportation order. Id. at 389. Accordingly, the Supreme Court held that the
court of appeals properly exercised jurisdiction over the petition for review to the
extent it challenged the BIA’s denial of the motion to reopen or for reconsideration
and that the court of appeals properly concluded that it lacked jurisdiction over the
application for suspension of deportation because, inter alia, the petition to remand was an
attempt to circumvent time limits on motions to reopen deportation proceedings).
7
Under the INA prior to the AEDPA and IIRIRA, an alien facing deportation had to file
a petition for review of a deportation order within ninety days of the final order unless
deportation was based on a conviction for an aggravated felony, in which case the petition had to
be filed within thirty days. INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1) (1995). Under the INA as
amended by IIRIRA, all petitions for review must be filed within thirty days. 8 U.S.C. §
1252(b)(1) (Supp. 1998).
16
petition for review of the deportation order itself. Id. at 390-91; see also Gomez-
Gomez v. INS, 681 F.2d 1347, 1348 (11th Cir. 1982) (affirming on a petition for
review, the BIA’s denial of a motion to reopen which had been filed on June 5,
1981 where the original deportation order had become final in May 1980);
Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir. 1990)(exercising jurisdiction
over a petition for review of a BIA order denying a motion to reopen which had
been filed seven years after the deportation order became final and the alien had
been deported). Thus, several circuits have reversed the BIA’s denial of a motion
to reopen deportation proceedings. However, under the INA as amended by
IIRIRA, such decisions must be made now only in a petition for review and not
through a § 2241 habeas petition.
Therefore, subject to the limitations period in INA § 242(b)(2), Mejia
apparently can pursue, and indeed has filed, a petition for review of the BIA’s
November 1998 denial of his motion to reopen. This Court expresses no opinion
on any procedural or substantive hurdles that Mejia’s current petition for review
17
may face.8 Such questions will be resolved by this Court in ruling on Mejia’s
petition for review.9
Specifically, this Court does not decide the parameters of the issues to be
decided in ruling on Mejia’s petition for review. On the one hand, the petition for
review challenging the BIA’s denial of Mejia’s motion to reopen may focus
narrowly on the correctness of the BIA’s application of the time limits in 8 C.F.R.
§ 3.2, which the BIA cited in concluding that Mejia had not filed a timely motion
to reopen. On the other hand, Mejia’s petition might properly encompass all issues
implicated by Mejia’s ineffective-assistance-of-counsel arguments. All issues
relating to the proper scope of the judicial inquiry triggered by the petition for
review that Mejia has filed can only be decided by the panel of this Court that
reviews Mejia’s petition.
8
For example, this Court has not decided whether 8 C.F.R. 3.2 (1998), which now
prohibits multiple motions to reopen, precludes a second motion to reopen when the first motion
was filed before the effective date of 8 C.F.R. 3.2 (1998). Saiyid, 132 F.3d at 1385 n.6.
9
We note, without deciding, that Mejia apparently does not face one major potential
impediment to pursuing a petition for review that the alien in Richardson appeared to face. INA
§ 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp. 1998) provides that “no court shall have
jurisdiction to review any final order of removal against” aliens who are removable based on
certain criminal offenses. However, in this case, Mejia is facing deportation for overstaying his
visa - not for his drug conviction. His conviction merely served as the basis for the immigration
judge’s order, affirmed by the BIA, to pretermit Mejia’s application for suspension of
deportation. Therefore, unlike in Richardson, INA § 242(a)(2)(C) does not appear to limit
Mejia’s opportunity to pursue a petition for review in the court of appeals.
18
In summary, this Court holds that the district court lacked jurisdiction over
Mejia’s § 2241 petition because IIRIRA repealed § 2241 jurisdiction over such
matters, as recognized in Richardson, and that such repeal is not unconstitutional as
applied to Mejia.10
For the foregoing reasons, we AFFIRM the district court’s order dismissing
Mejia’s § 2241 petition but direct that the district court dismiss the petition for a
lack of subject-matter jurisdiction. The stay of Mejia’s deportation entered by this
Court on March 13, 1998 and continued on March 26, 1998 is VACATED.
10
As outlined in the history of this case, Mejia filed his first § 2241 petition on
September 26, 1997, while his motion to reopen was still pending before the BIA. As this Court
recognized in Richardson, the INA, as amended by IIRIRA, expressly requires the exhaustion of
administrative remedies prior to the judicial review of a removal order. Therefore, this Court
notes that Mejia’s petition is also subject to dismissal because at the time it was filed, Mejia had
not exhausted the available administrative remedies.
19