Francisco Lopez v. Gerard Heinauer

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 01-3618
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Francisco Tomas Lopez, *
*
Petitioner-Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Gerard Heinauer, District Director, *
Immigration and Naturalization * [PUBLISHED]
Service, *
*
Respondent-Appellee. *
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Submitted: October 9, 2002
Filed: June 11, 2003
________________
Before HANSEN,1 Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
________________
HANSEN, Circuit Judge.
1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
Francisco Tomas Lopez appeals the district court’s2 denial of his petition for
a writ of habeas corpus, 28 U.S.C. § 2241 (2000), in which he asserted that the
removal reinstatement provision of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1231(a)(5) (Supp. II 1996), had a
retroactive effect when applied to him and violated his due process rights. The
district court first concluded that it had jurisdiction to consider Lopez’s habeas
petition and then rejected Lopez’s claims on the merits. We transfer this action which
should have been brought directly in this court, construe it as a petition for review,
and deny the petition.
I.
Lopez, a citizen of Guatemala, illegally entered the United States on or about
January 3, 1993. The Immigration and Naturalization Service (hereinafter “the INS”)
instituted deportation proceedings, charging him with entering the United States
without inspection. See 8 U.S.C. § 1251(a)(1)(B) (1994) (transferred to §
1227(a)(1)(B) (Supp. II 1996)). The INS sent a notice of hearing, informing Lopez
of the scheduled date, March 28, 1997, for a hearing before the immigration court.
Although Lopez signed for and received this notice on March 5, 1997, he failed to
appear at the scheduled hearing. The immigration judge found Lopez deportable and
issued an order of deportation to Guatemala on March 28, 1997. Lopez never sought
judicial review of that deportation order. The INS sent Lopez a notice warning him
that, because he had been found to be deportable, he was prohibited from entering the
United States for a period of ten years from the date of his removal.
On April 1, 1997, the reinstatement provision of IIRIRA became effective. 8
U.S.C. § 1231(a)(5) (Supp. II 1996) (authorizing the Attorney General to reinstate
2
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
2
automatically a prior order of deportation against an alien who illegally reenters the
United States after being deported). On September 22, 2000, Lopez was deported,
but he illegally reentered the United States in June 2001. On August 2, 2001, the INS
automatically reinstated Lopez’s prior removal order3 pursuant to 8 U.S.C. §
1231(a)(5).
Lopez filed a § 2241 petition for a writ of habeas corpus on August 17, 2001,
challenging the reinstatement. The district court denied habeas relief, and Lopez was
deported to Guatemala once again on February 28, 2002. Lopez now appeals the
denial of his habeas petition.
II.
A. Jurisdiction
The INS asserts that we lack jurisdiction to address this appeal. The INS
argues that Lopez cannot satisfy the “in custody” requirement under habeas corpus
jurisprudence. Alternatively, the INS asserts that a final order of removal or its
reinstatement may be challenged only in the appropriate court of appeals through a
petition for review filed within thirty days of the date of the order.
We first note that the “in custody” requirement of the habeas statute is satisfied
as long as the petitioner was in custody at the time he filed his habeas petition.
Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968) (holding that once federal
jurisdiction has attached, it is not defeated by the petitioner’s release prior to
completion of the proceedings on his habeas application); Beets v. Iowa Dep’t of
3
We make no distinction between the terms “deportation” and “removal.” See
Omar v. INS, 298 F.3d 710, 712 n.2 (8th Cir. 2002) (noting that IIRIRA eliminated
any distinction between deportation and removal proceedings).
3
Corr. Servs., 164 F.3d 1131, 1133 n.2 (8th Cir.) (same), cert. denied, 528 U.S. 825
(1999). Lopez was in custody when he filed his habeas petition.
We agree with the INS, however, that pursuant to the statutory scheme set forth
by Congress, Lopez should have filed a petition for review in this court to challenge
the § 1231(a)(5) order of reinstatement. See 8 U.S.C. § 1252(a), (b)(1), (2)
(providing for judicial review of a final order of removal in the court of appeals if the
petition for review is filed within thirty days of the date of the order); see also
Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 868 (8th Cir. 2002) (reviewing a
reinstatement order through a § 1252(a)(1) petition for review), cert. denied, 123 S.
Ct. 864 (2003). Section 1252(a)(1) provides that judicial review of a final removal
order “is governed only by chapter 158 of title 28,” which sets forth rules pertaining
to review of federal agency orders. 8 U.S.C. § 1252(a)(1) (emphasis added). Further,
"[j]udicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States" shall be available
only through a petition for review brought in the court of appeals, and this
jurisdiction is exclusive as to actions brought to adjudicate or execute removal orders.
8 U.S.C. § 1252(b)(2), (9), (g).
Although habeas jurisdiction remains available to deportees who raise
questions of law and who have no other available judicial forum, see INS v. St. Cyr,
533 U.S. 289, 314 (2001), the statute here provides an adequate judicial forum,
permitting the noncriminal deportee to file a petition for review in the appropriate
court of appeals. Because judicial review was available to Lopez, the district court
was not authorized to hear this § 2241 habeas petition. See Castro-Cortez v. INS, 239
F.3d 1037, 1047 (9th Cir. 2001); Bini v. Aljets, No. 01-3234, 2002 WL 535083, at
*1 (8th Cir. 2002) (unpublished) (holding district court lacked jurisdiction to
entertain a challenge to a removal order because such challenges must be raised in a
petition for review). Lopez filed the wrong action in the wrong federal court.
4
We nevertheless decline to dismiss for lack of jurisdiction in this instance,
because the interests of justice warrant a transfer to this court. Federal courts are
authorized to transfer an action to the proper federal court in order to cure a want of
jurisdiction. 28 U.S.C. § 1631 (2000). Pursuant to § 1631, this court has the power
to transfer to the proper federal court a case in which we lack jurisdiction, provided
that the case would have been timely filed had it been filed in the proper court in the
first instance. Park, 245 F.3d at 666-67. The purpose of the transfer statute is to aid
parties who might be confused about which court has subject matter jurisdiction, and
to preserve their opportunity to present the merits of the claim, which if dismissed for
filing in the wrong court might subsequently be barred by a statute of limitations. Id.
at 667. The transfer statute is mandatory, indicating that a court "shall, if it is in the
interest of justice, transfer such action or appeal to any other such court in which the
action or appeal could have been brought at the time it was filed." 28 U.S.C. § 1631
(emphasis added).
The notice of appeal filed in this court would not have been a timely filed
petition for review, but the action filed in district court was timely for purposes of 8
U.S.C. § 1252(b)(1). Therefore, while we lack direct authority under § 1631 to
transfer this case to ourselves, the district court did and does have authority to transfer
it to us. See Park, 245 F.3d at 667 (directing the district court to transfer a case
seeking direct review of the INS's actions to the Ninth Circuit where the petitioner
should have filed a petition for review). Transfer is required in this case because
otherwise, the petitioner will have lost his opportunity to present the merits of the
claim due to a statute of limitations bar, thus, the transfer is in the interest of justice.
The odd posture of this case indicates that we should remand it to the district court
and direct that court to transfer the case back to us so that we can consider what is
already before us in this appeal. We conclude that it is unnecessary to jump through
all of these procedural hoops. For the sake of judicial economy, we will deem this
case properly transferred to us. We agree with the following statement:
5
It would be a curious procedure to remand this case to the district court
so that the district judge could decide whether or not to officially
transfer it back to us. Nor is such a convoluted procedure necessary to
a fair decision: it appears from the record that all the considerations
relevant to the interest of justice are within our plain view.
In re McCauley, 814 F.2d 1350, 1352 (9th Cir. 1987). In the interest of justice, we
therefore deem this case transferred to this court. See id.; Gallo-Alvarez v. Ashcroft,
266 F.3d 1123, 1128 (9th Cir. 2001). We now consider the merits of Lopez’s claim
as if he had filed a timely petition for review in this court.
B. Retroactive Effect
Lopez argues that the § 1231(a)(5) reinstatement of his removal order has an
impermissible retroactive effect because the initial removal order was entered prior
to the enactment of the statute which now authorizes the reinstatement of it. He relies
on Castro-Cortez, 239 F.3d at 1050-52, and Bejjani v. INS, 271 F.3d 670, 684-87 (6th
Cir. 2001). We have since expressly rejected the retroactivity reasoning used by the
Sixth and Ninth Circuits in those cases, Alvarez-Portillo, 280 F.3d at 864, and more
importantly, this case is factually distinguishable from them. Contrary to the rejected
reasoning in Castro-Cortez and Bejjani, we determined in Alvarez-Portillo that the
new procedures set forth in § 1231(a)(5) did not result in an impermissible retroactive
effect to an alien who had illegally reentered the United States before the statute’s
enactment. 280 F.3d at 861, 864. In this case, Lopez illegally reentered the country
after the statute’s enactment. No preenactment conduct is at issue. There can be no
retroactive effect from applying IIRIRA’s reinstatement procedures to Lopez where
the statute was in effect at the time of his illegal reentry.
Lopez argues that the statute is retroactive because his initial deportation order
was entered prior to the enactment of IIRIRA. We disagree. “No illegally reentering
alien has a reasonable expectation that his prior deportation order will not be
6
reinstated for purposes of effecting a second removal.” Alvarez-Portillo, 280 F.3d
at 865. We have determined that by enacting “IIRIRA, Congress intended to reduce
the delays incident to removing aliens who have illegally reentered. Illegal reentrants
have no entitlement to such delays and no reasonable expectation that prior
inefficiencies in the administration of our immigration laws would continue
indefinitely.” Id. at 866. Thus, the fact that Lopez’s initial deportation order was
entered prior to IIRIRA’s enactment does not render impermissibly retroactive the
INS’s application of IIRIRA reinstatement procedures in this case.
We determined in Alvarez-Portillo that there could be an impermissible
retroactive effect arising from IIRIRA’s provision that an alien subject to
reinstatement “‘may not apply for any relief under this chapter.’” Id. (quoting §
1231(a)(5)). We acknowledged that a new statute may not be applied retroactively
to deprive a criminal defendant of a defense that was available at the time his alleged
crime was committed. Id. at 867. Again, however, retroactivity is not in play here
because IIRIRA was in effect at the time of Lopez’s actual deportation and his illegal
reentry. Thus, Lopez has not been deprived of any substantive defenses that were
available at the time of his illegal reentry conduct. Because IIRIRA was in effect at
the time of his reentry conduct, its provisions appropriately define his rights.
C. Due Process
Lopez argues that he was deprived of due process when he was not provided
a new hearing before an immigration judge prior to his present deportation. The
Supreme Court has long recognized that deportable aliens are entitled to
constitutional protections of due process. See Yamataya v. Fisher, 189 U.S. 86, 100-
01 (1903). We nonetheless reject Lopez’s constitutional challenge on the basis that
he cannot show any prejudice from the alleged error.
7
To demonstrate a violation of due process, an alien must demonstrate both a
fundamental procedural error and that the error resulted in prejudice. United States
v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995). “Actual prejudice results where
defects in the deportation proceedings may well have resulted in a deportation that
would not otherwise have occurred.” Id. (internal quotations omitted). We first note
that Lopez was granted notice and an opportunity to be heard prior to his initial
deportation, and he does not attempt to challenge the validity of the initial deportation
order in this case. Furthermore, we have already determined that there could be no
reasonable expectation that the prior deportation order would not be reinstated after
an illegal reentry. Alvarez-Portillo, 280 F.3d at 865.
The regulations provide that an alien is subject to automatic reinstatement of
a prior removal order upon a determination that the alien has been subject to a prior
deportation order, the alien is correctly identified as an alien who was removed under
a prior order, and the alien unlawfully reentered the United States after his removal.
8 C.F.R. § 241.8(a) (2001). Lopez admits to all of these predicate findings–his
identity, his prior order of removal, and his illegal reentry. Thus, there is no doubt
his deportation order would have been reinstated, and he would be statutorily
ineligible for any relief even if he had been granted a new hearing before an
immigration judge. Absent a showing of prejudice, Lopez cannot establish a due
process violation. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir. 2002).
III.
We construe Lopez’s habeas petition as a petition for review. Having
considered and rejected his arguments, we deny relief.
8
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
9