Erasmo Moreno v. Kerry Dixon

Case: 12-51288 Document: 00512553420 Page: 1 Date Filed: 03/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 12-51288
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 7, 2014
Lyle W. Cayce
Clerk
ERASMO ESPARZA MORENO,
Petitioner−Appellant,
versus
KERRY DIXON, Warden;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
UNITED STATES DEPARTMENT OF JUSTICE,
Respondents−Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CV-455
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 12-51288 Document: 00512553420 Page: 2 Date Filed: 03/07/2014
No. 12-51288
Erasmo Moreno, former federal prisoner # 62847-051, appeals the sua
sponte dismissal, for want of subject-matter jurisdiction, of his 28 U.S.C. § 2241petition, in which he challenged a final order of removal. On appeal, he con-
tends that the district court had jurisdiction and that the order should be
vacated.
This court reviews de novo the district court’s legal conclusions on juris-
diction. Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 396 (5th Cir.
2007). As the party seeking to invoke jurisdiction, Moreno has the burden of
demonstrating it. Rivera-Sanchez v. Reno, 198 F.3d 545, 546 (5th Cir. 1999).
The REAL-ID Act, which became effective May 11, 2005, altered the judi-
cial review of removal orders in habeas corpus proceedings. Rosales v. Bureau
of Immigration & Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005).
Under the pertinent provision of the Act, “a petition for review filed with an
appropriate court of appeals in accordance with this section shall be the sole
and exclusive means for judicial review of an order of removal entered or issued
under any provision of this chapter.” 8 U.S.C. § 1252(a)(5). The Act stripped
the district courts of jurisdiction over § 2241 petitions attacking removal
orders. Rosales, 426 F.3d at 735-36. Moreover, the district court could not
have transferred the petition to this court as a petition for review because the
petition was not pending on the effective date of the Act. See Castillo-Perales
v. Holder, 411 F. App’x 695, 696 (5th Cir. 2011).
Accordingly, the judgment of dismissal is AFFIRMED.
2