Plata-Cedillo v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-61065
Summary Calendar
FERNANDO PLATA-CEDILLO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A36 756 990
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Fernando Plata-Cedillo (Plata) initially filed a 28 U.S.C.
§ 2241 petition in the district court challenging a 1999 removal
order issued by the Board of Immigration Appeals (BIA). In
accordance with the REAL ID Act, his § 2241 petition was
converted into a petition for review and transferred to this
court. See Rosales v. Bureau of Immigration and Customs
Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied,
126 S. Ct. 1055 (2006); 8 U.S.C. § 1252(a)(5).
*
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this opinion should not be published and is not precedent except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.
No. 05-61065
-2-
Plata contends that his removal order is invalid in light of
this court’s subsequent decision in United States v. Chapa-Garza,
243 F.3d 921 (5th Cir. 2001). Once removed from this country,
Plata’s case was effectively finished. See Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003). Because Plata’s
removal order had been legally executed at the time Chapa-Garza
was decided, Chapa-Garza does not retroactively apply to Plata’s
removal order. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169, 1172 (9th Cir. 2001).
Plata also argues that the BIA erred by relying on a
decision from this court that was not “controlling authority” at
the time of his removal. The BIA relied, in part, on our
decision in Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir.
1999), which later was withdrawn, 222 F.3d 1040 (5th Cir. 2000).
However, Plata fails to address the BIA’s additional reliance on
its own decision, In re Puente-Salazar, 22 I. & N. Dec. 1006,
1014 (BIA 1999), which itself was later overruled by In re Ramos,
23 I. & N. Dec. 336 (BIA 2002). There is no indication that
Puente-Salazar was not “controlling authority” for the BIA at the
time of Plata’s removal.
Finally, Plata argues that he may collaterally challenge
his prior order of removal as a miscarriage of justice following
our decision in Chapa-Garza. However, Plata cannot show a
miscarriage of justice because he failed to file a petition for
No. 05-61065
-3-
review in this court following the BIA’s decision. See Ramirez-
Molina v. Ziglar, 436 F.3d 508, 515 (5th Cir. 2006). As in that
case, there is no miscarriage of justice because, if Plata had
petitioned this court for review, “he could have attained the
result that was ultimately achieved by the petitioner in
Chapa-Garza.” Id.Accordingly, Plata’s petition for review is DENIED.