Ortiz v. Reno, et al

No. 99-20822
-1-
* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20822
Conference Calendar
JAVIER ORTIZ,
Petitioner-Appellant,
versus
JANET RENO, U.S. Attorney General;
RICHARD V. CRAVENER, District Director
of the Houston District of the Immigration
& Naturalization Service, Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-1229
--------------------
April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Javier Ortiz, a permanent resident alien, appeals the
dismissal of his habeas corpus petition for lack of jurisdiction.
Ortiz sought habeas relief from a removal order issued pursuant
to a proceeding instituted by the Immigration and Naturalization
Service (“INS”). The INS instituted removal proceedings because
Ortiz had been convicted of the aggravated felony of driving
while intoxicated.
Without filing an administrative appeal with the Board of

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No. 99-20822
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Immigration Appeals (“BIA”), Ortiz filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241. Parties are required to
exhaust administrative remedies before challenging administrative
actions in the courts. Haitian Refugee Ctr. v. Smith, 676 F.2d
1023, 1034 (5th Cir. 1982). Citing 8 U.S.C. § 1252(d), Ortiz
argues that exhaustion is not required when the administrative
remedy would be inadequate or ineffective. He contends that
appealing to the BIA would have been futile because a prior
decision by the BIA had foreclosed his only argument on appeal.
However, Ortiz’s reliance on this provision is misplaced. The
statute expressly requires the exhaustion of administrative
remedies before a district court would have jurisdiction to
review Ortiz’s habeas petition. Accordingly, this argument is
without merit.
Ortiz also argues that he is not required to exhaust his
administrative remedies because he is raising a constitutional
objection. This is legally and factually frivolous because his
brief raises no constitutional issue at all.
This appeal raises issues that are without arguable merit
and is thus frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). Because the appeal is frivolous, it is DISMISSED.
5th Cir. R. 42.2.

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