Medellin-Reyes v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3031
PEDRO MEDELLIN-REYES,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
No. 05-4438
RICARDO TORRES-ACOSTA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals
____________
SUBMITTED JANUARY 5, 2006—DECIDED JANUARY 24, 2006
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
PER CURIAM. These two proceedings began when aliens
who were awaiting removal filed petitions for writs of
2 Nos. 05-3031 & 05-4438
habeas corpus. See INS v. St. Cyr, 533 U.S. 289, 298-314
(2001). Before either district court had reached a final
decision, the Real ID Act of 2005 went into force, eliminat-
ing the jurisdiction on which these petitions rested. Section
106(a) of the new law, 119 Stat. 231, 310-11 (May 11, 2005),
amends several provisions of the United States Code to
foreclose the use of 28 U.S.C. §2241 to obtain review of
removal orders and their implementation. Section 106(c) is
a transition rule:
If an alien’s case, brought under section 2241 of
title 28, United States Code, and challenging a final
administrative order of removal, deportation, or
exclusion, is pending in a district court on the date
of the enactment of this division, then the district
court shall transfer the case (or the part of the case
that challenges the order of removal, deportation,
or exclusion) to the court of appeals for the circuit
in which a petition for review could have been
properly filed under section 242(b)(2) of the Im-
migration and Nationality Act (8 U.S.C. 1252), as
amended by this section, or under section
309(c)(4)(D) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C.
1101 note). The court of appeals shall treat the
transferred case as if it had been filed pursuant to
a petition for review under such section 242, except
that subsection (b)(1) of such section shall not
apply.
Each district court transferred the matter to us under this
subsection.
In 1995 an immigration judge ordered Ricardo Torres-
Acosta deported to Mexico. He waived his right to review by
the Board of Immigration Appeals and was deported as
ordered. Since then he has repeatedly reentered the United
States by stealth and, when caught, has been summarily
Nos. 05-3031 & 05-4438 3
returned on the authority of the 1995 order. His most recent
re-entry led to criminal prosecution and conviction. While
serving his sentence of 70 months’ imprisonment, Torres-
Acosta filed the petition under §2241 that has been trans-
ferred to us. We “treat the transferred case as if it had been
filed pursuant to a petition for review under . . . section
242”. The problem is that §242 permits a petition for review
only after the Board of Immigration Appeals has rendered
a decision, see §242(d)(1), 8 U.S.C. §1252(d)(1), and Torres-
Acosta never sought review by the Board—not in 1995, not
by a belated request any time since.
Nothing in the Real ID Act or §242 authorizes courts
of appeals to review immigration judges’ decisions. The
Attorney General therefore has asked us to dismiss the
petition. Exhaustion of administrative remedies was a
requirement long before the Real ID Act. Instead of us-
ing those remedies, Torres-Acosta waived them. He
blames his lawyer (actually a law student under a teacher’s
supervision) for not doing a better job in 1995 but has not
taken any of the steps that the Board requires to obtain
reconsideration based on ineffective assistance of counsel.
See Matter of Lozada, 19 I&N Dec. 637 (1988); Matter of
Assaad, 23 I&N Dec. 553 (2003). And his assertion that he
might be able to obtain citizenship derivatively through his
mother not only is unsupported by evidence but also is
beside the point. Whatever Torres-Acosta might be able to
do, he has not actually done. He is not a citizen of the
United States and is not entitled to be here. The motion to
dismiss is granted.
Pedro Medellin-Reyes entered the United States lawfully
in 1991 but within 18 months had been convicted of pos-
sessing cocaine with intent to distribute that drug. Immi-
gration officials began deportation proceedings based on
that conviction. He sought discretionary relief under
§212(c), 8 U.S.C. §1182(c), but the immigration judge denied
that application after learning that in 1995 Medellin-Reyes
4 Nos. 05-3031 & 05-4438
was convicted of another cocaine offense. By the time the IJ
rendered his decision, the Antiterrorism and Effective
Death Penalty Act of 1996 had amended the immigration
laws to preclude §212(c) relief for aliens convicted of
multiple drug crimes. The Board of Immigration Appeals
dismissed his appeal in 1997, stating that Medellin-Reyes
is ineligible for discretionary relief. He did not seek judicial
review of that decision—but he did remain in the United
States, apparently because he is still in prison, and in 2004
filed the petition that has been transferred to us.
Medellin-Reyes contends that he is entitled to a remand
so that the agency may decide whether to permit him to
stay notwithstanding his convictions. The basis of this
request is another portion of St. Cyr, 533 U.S. at 314-26,
holding that the 1996 legislation does not apply to
aliens whose convictions rest on pre-enactment guilty pleas.
That portion of St. Cyr, unlike the portion concerning the
use of §2241 to obtain review by district courts, has not
been affected by intervening legislation. The Attorney
General agrees with Medellin-Reyes’s position and has
asked us to send the matter back to the Board.
We asked the parties for supplemental memoranda
because Medellin-Reyes’s long delay in seeking any judi-
cial review raised a jurisdictional question. Stone v. INS,
514 U.S. 386 (1995), holds that the time limit for a peti-
tion to review the Board’s order is jurisdictional. Medellin-
Reyes let that time pass in 1997 without action. If his
2004 collateral attack is treated as a belated petition, it is
untimely. The parties agree, however, that the last clause
of §106(c) makes Stone inapplicable. Here is the full last
sentence: “The court of appeals shall treat the transferred
case as if it had been filed pursuant to a petition for review
under such section 242, except that subsection (b)(1) of such
section shall not apply.” Subsection (b)(1) contains the time
limit, which therefore “shall not apply.” This means that all
collateral proceedings pending on May 11, 2005, when the
Nos. 05-3031 & 05-4438 5
Real ID Act took effect, and transferred to courts of appeals
under §106(c), must be treated as timely petitions for
review, no matter how long it has been since the Board
rendered its decision. Collateral proceedings filed on or
after May 11, however, will be dismissed outright; the
window for belated judicial review has closed.
We therefore grant the petition filed by Medellin-Reyes,
No. 05-3031, and remand with instructions that the
agency consider on the merits his application for §212(c)
relief. See INS v. Ventura, 537 U.S. 12 (2002). The peti-
tion filed by Torres-Acosta, No. 05-4438, is dismissed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-06