Oyelude v. Chertoff, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 11, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10323
_______________
OYEKUNMI OYELUDE,
Petitioner-Appellant,
VERSUS
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
ANGELA K. BARROWS,
ACTING DIRECTOR OF THE BUREAU OF CITIZENSHIP AND IMMIGRANT SERVICES IN DALLAS,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 1:03-CV-095-C
______________________________

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2
Before DAVIS, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Oyekunmi Oyelude, a native and citizen of
Nigeria, challenges the dismissal and denial of
his 28 U.S.C. § 2241 petition for writ of habe-
as corpus. He argues that his prolonged de-
tention, in the absence of a reasonable bond,
violates due process. He specifically reasons
that the finding that he is a deportable criminal
alien under 8 U.S.C. § 1226(c) is clearly er-
roneous. Because the record does not estab-
lish that Oyelude is a criminal alien, we vacate
that finding, remand for proceedings not in-
consistent with this ruling, and express no fur-
ther opinion as to the merits of the habeas
petition.
I.
In September 2002, the Immigration and
Naturalization Service (“INS”)1 charged Oye-
lude with remaining in the United States with-
out authorization and detained him pending his
removal; he applied for release on bond during
the pendency of his proceedings.2 He moved
to cancel removal proceedings to allow the
INS to adjudicate an I-130 visa petition that
his purported spouse had filed. The IJ ruled
against him on the I-130 petition.3
In December 2002, the IJ ordered Oyelude
removed to Nigeria, denied voluntary depar-
ture, and denied his application for cancella-
tion of removal.4 In April 2003, Oyelude filed
a 28 U.S.C. § 2241 petition for writ of habeas
corpus setting forth the factual circumstances
surrounding his seven-month detention and al-
leging that he was about to be deported “with-
out cause.” He asserted that he had no felony
convictions,5 challenged the denial of his I-130
petition, and argued that the $10,000 bond
was unreasonable. He also asked the court to
order his release during the pendency of the
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 As of March 1, 2003, the Bureau of Immi-
gration and Customs Enforcement (“BICE”) of the
Department of Homeland Security (“DHS”) as-
sumed responsibility for functions the INS pre-
viously had performed.
2 In October 2002, at Oyelude’s request for a
change in custody status, the immigration judge
(“IJ”) conducted a bond hearing, granted Oyelude’s
bond application, and ordered him released upon
(continued...)
2(...continued)
posting of a $10,000 bond. The IJ noted that
Oyelude was in removal proceedings because of
“an overstay” and that he had never been convicted
of a criminal offense.
3 The IJ found that Oyelude had failed to dem-
onstrate that his children would suffer exceptional
and extremely unusual hardship if he were removed
from the United States. The IJ also refused to
interrupt the removal proceedings, because
Oyelude was not likely to be able to show, by clear
and convincing evidence, that the marriage would
be deemed valid. Apparently, the couple had not
lived together for three years.
4 Oyelude then filed a motion to stay the IJ’s
December 2002 order. BICE, on its own motion,
stayed Oyelude’s removal to ensure that he was
properly accorded his rights before the Board of
Immigration Appeals (the “BIA”).
5 Oyelude contends that although he has been
arrested for outstanding traffic tickets, the case was
dismissed as “time served,” and he has never been
tried for or convicted of a felony.

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3
removal proceedings.6 The DHS argued that
Oyelude’s detention is lawful under 8 U.S.C.
§ 1226(a), as an arrest and detention of an
alien pending removal proceedings, and, citing
§ 1226(e), that the district court lacked juris-
diction to consider the bond determination.
The district court cited § 1226(c)(1), noting
that the Attorney General is required to detain
deportable criminal aliens until the final order
of removal is issued. The court also relied on
Demore v. Kim, 538 U.S. 510 (2003), for the
proposition that mandatory detention of a per-
manent resident alien does not violate due pro-
cess. The court denied as moot Oyelude’s
motions to stay removal, held that his claims
were foreclosed by Kim, and dismissed his
§ 2241 petition.7
Oyelude contends that the district court
erred in denying his habeas petition on the
ground that he was a deportable criminal who
had been mandatorily detained pursuant to
§ 1226(c). He urges us, inter alia, to vacate
and remand for further proceedings.
II.
The DHS argues that we have no jurisdic-
tion to consider the Attorney General’s discre-
tionary determination that Oyelude should not
be released. Section 1226(e) states that the
“Attorney General’s discretionary judgment
regarding the application of this section shall
not be subject to judicial review. No court
may set aside any action or decision by the At-
torney General under this section regarding the
detention or release of any alien or the grant,
revocation, or denial of bond or parole.”
The DHS suggests that the district court
dismissed Oyelude’s petition for lack of sub-
ject matter jurisdiction. The order and judg-
ment, however, do not so indicate or suggest.8
Section 1226(e) may strip us of jurisdiction to
review judgments designated as discretionary
under the pertinent language of the statute, but
it does not deprive us of all authority to review
statutory and constitutional challenges. We
retain jurisdiction to review Oyelude’s deten-
tion insofar as that detention presents constitu-
tional issues, such as those raised in a habeas
petition. See Kim, 538 U.S. at 516-17.
III.
Oyelude argues that the district court erred
in finding that he was a criminal alien. We re-
view the district court’s determinations of law
de novo and its findings of fact for clear error.
See Royal v. Tombone, 141 F.3d 596, 599 (5th
Cir. 1998). A finding of fact is clearly errone-
ous “only if it leaves the Court with the defi-
nite and firm conviction that a mistake has
been made.” Galvan v. Cockrell, 293 F.3d
760, 764 (5th Cir. 2002).
The district court closes with a quote from
Kim: “Detention during removal proceedings
is a constitutionally permissible part of that
process.” See Kim, 538 U.S at 531. The
court omits the next, significant sentence: 6 The § 2241 proceeding was transferred to the
Abilene Division, Northern District of Texas, at
which point the government filed a status report
asserting that Oyelude’s appeal before the BIA was
then pending and that he had not posted the
$10,000 bond and remained in detention.
7 The court did grant Oyelude leave to supple-
ment his habeas petition with additional documen-
tation.
8 The district court’s opinion examines the mer-
its of the habeas petition as applied to a § 1226(c)
detention and uses the language “dismissed and de-
nied.” Those circumstances, plus the fact that at
no point does that order discuss subject matter
jurisdiction, militate strongly against the DHS’s in-
terpretation of the ruling.

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4
“The INS detention of respondent, a criminal
alien who has conceded that he is deportable,
for the limited period of his removal
proceedings, is governed by [the cases cited
for the proposition in the previous sentence].”
See id. Oyelude has not conceded that he is a
criminal alien, so Kim does not foreclose a
potential challenge to a § 1226 detention.9
The district court also cites two unpub-
lished district court cases, Stephens v. Estrada,
2003 WL 21499323 (N.D. Tex. June 19,
2003), and Omari v. Estrada, 2003 WL
21355891 (N.D. Tex. June 5, 2003), for the
proposition that Oyelude’s detention is consti-
tutional. These cases are consistent with Kim;
the district court’s decision here is not. In Ste-
phens the petitioner had been convicted of as-
sault on a family member, see Stephens, 2003
WL 21499323, at *1, and in Omari the peti-
tioner had been convicted of fifth degree as-
sault of his wife, see Omari, 2003 WL
21355891, at *1. The record in the instant
case gives no indication that Oyelude has crim-
inal convictions.10
Kim dealt with the constitutionality of man-
datorily detaining criminal aliens during the
pendency of deportation proceedings. Evi-
dently the district court believed that Oyelude
was being detained pursuant to § 1226(c), the
provision at the heart of the constitutional dis-
pute in Kim, although on appeal the DHS op-
portunistically implies that the district court
approved his detention pursuant to some other
provision.11
Insofar as the district court “found” that
Oyelude was being detained as a criminal alien
under the authority of § 1226(c), that finding
is clearly erroneous. The IJ’s bond decision
states that Oyelude was in removal pro-
ceedings “as an overstay” and that he “appar-
ently has never been convicted of any criminal
matter.” The Attorney General does not con-
test that finding on appeal.12
9 The DHS invokes language in Kim that one
might read in a vacuum as supporting its conten-
tion, but that language, when read in context, does
not directly address the constitutionality of
non-§ 1226(c) detentions.
10 We express no opinion as to whether Oyelude
is actually a criminal alien; we merely conclude
that there is no support for that finding in the
record now on appeal.
11 Perhaps the district court considered Oyelude
as being in custody under the more general de-
tention provisions of § 1226(a). The IJ set a
$10,000 bond, a ruling that is incompatible with
the very limited circumstances § 1226(c)(2) sets
forth for allowing criminal aliens involved in re-
moval proceedings to be released on bond. It is,
however, compatible with the more general deten-
tion provisions of § 1226(a).
The district court recognized both that Oyelude
was being detained and that the IJ had set bond at
$10,000. We refuse on these grounds, however, to
impute to that court the position that Oyelude was
being detained pursuant to § 1226(a). The opinion
does not mention that subsection. Moreover, its
reasoning seems to assume that Oyelude was a
criminal alien and therefore that the jurisprudence
surrounding § 1226(c) applied.
12 We also decline to order Oyelude’s release
during the pendency of his petition. The district
court has not had an opportunity to rule on that re-
quest, and Oyelude provides no authority explain-
ing why we should grant such unusual relief.
Moreover, we reject two additional requests from
Oyelude: that we (1) order BICE to adjudicate his
I-130 petition and (2) direct the Attorney General
to expedite the processing of that petition. Oyelude
provides no relevant legal authority for such relief,
(continued...)

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This matter is VACATED and
REMANDED so that the district court may
consider the foregoing explanation. We ex-
press no view as to the ultimate merits of this
proceeding.
12(...continued)
nor has the district court ruled on these requests.

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