Lopez-Veloz v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit November 2, 2004
Charles R. Fulbruge III
No. 04-60440 Clerk
SAMUEL IGNACIO LOPEZ-VELOZ
Petitioner,
v.
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL
Respondent
Petition For Review of an Order
of the Board of Immigration Appeals
(A90 916 144)
Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Samuel Ignacio Lopez-Veloz petitions for direct review of a
decision of the Board of Immigration Appeals (BIA), affirming the
immigration judge’s denial of a waiver of inadmissibility under
former section 212(c) of the Immigration and Nationality Act (INA),
8 U.S.C. § 1182(c) (repealed 1996). Lopez-Veloz also seeks a
continuation of the temporary stay of deportation granted by this
court on June 14, 2004. In response, the government has filed a
*
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this opinion should not be published and is not precedent except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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motion to dismiss, arguing that we lack jurisdiction to review
Lopez-Veloz’s petition, because 8 U.S.C. § 1252(a)(2)(C) explicitly
prohibits our direct review of orders for the removal of the class
of criminal aliens of which Lopez-Veloz is a member.
We agree with the government that our ability to consider
Lopez-Veloz’s petition for direct review of the BIA’s decision in
this case is forbidden by 8 U.S.C. § 1252(a)(2)(C). Indeed, §
1252(a)(2)(C) precludes us from exercising “jurisdiction to review
any final order of removal against an alien who is removable by
reason of having committed” certain enumerated criminal offenses,
including those offenses involving violations of state laws
relating to controlled substances. 8 U.S.C. § 1252(a)(2)(C); 8
U.S.C. § 1227(a)(2)(B)(i). Although the stripping of our
“jurisdiction to review” by § 1252(a)(2)(C) does not affect our
habeas corpus jurisdiction, it clearly deprives us of jurisdiction
to directly review a BIA decision. See INS v. St. Cyr, 533 U.S.
289, 312-315 (2001).
Specifically, in St. Cyr, the Court observed that “it is the
scope of inquiry on habeas corpus that differentiates habeas review
from judicial review.” 533 U.S. at 312 (quoting Heikkila v. Barber,
345 U.S. 229, 236(1953)). Because the pre-IIRIRA statutory regime
allowed for direct review of immigration decisions, which gave
courts the “broad authority to grant declaratory and injunctive
relief in immigration cases,” the Court interpreted IIRIRA’s
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jurisdiction stripping provisions, such as § 1252(a)(2)(C), as a
congressional withdrawal of the courts’ direct review jurisdiction.
Id. at 309. Accordingly, the Supreme Court concluded that the sole
form of review available to aliens protesting the legality of their
deportation post-IIRIRA is in habeas. Id.
Nevertheless, despite § 1252(a)(2)(C)’ s limitation on this
court’s jurisdiction to consider a petition for direct review, we
have previously concluded that we “retain the jurisdiction to
review jurisdictional facts.” Balogun v. Ashcroft, 270 F.3d 274,
278 (5th Cir. 2001). Thus, our direct review of the BIA decision
in this instance is only to ascertain whether Lopez-Veloz is: (1)
an alien; (2) who is deportable; (3) based on a conviction for a
violation of state law relating to controlled substances. See
Balogun at 278.
It is undisputed that Lopez-Veloz is deportable under §
1227(a)(2)(B) as an “alien who at any time after admission has been
convicted of a violation of (or a conspiracy or attempt to violate)
any law of any State. . .relating to a controlled substance.” 8
U.S.C. § 1227(a)(2)(B)(i). Therefore, § 1252(a)(2)(C) precludes
this court from directly reviewing the BIA’s decision.
Accordingly, as we do not have jurisdiction to directly review
Lopez-Veloz’s petition, the Government’s motion to dismiss his
petition for lack of jurisdiction is granted, the temporary stay of
deportation is withdrawn, and all other relief prayed for is
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denied.
PETITION DISMISSED; TEMPORARY STAY WITHDRAWN.
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