Garcia v. Reno, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20486
Summary Calendar
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AMBERTO GARCIA,
Petitioner-Appellant,
VERSUS
JANET RENO,
ATTORNEY GENERAL OF THE UNITED STATES,
AND
RICHARD V. CRAVENER,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
November 22, 2000
Before SMITH, BENAVIDES, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Amberto Garcia appeals the dismissal, for
want of jurisdiction, of his petition for writ of
habeas corpus. The respondents, Attorney
General Janet Reno and Richard Cravener,
Director of the Immigration and Naturalization
Service (“INS”) (collectively, the “gov-
ernment”), raise substantive and procedural
objections to the appeal. We affirm.
I.
Garcia is a national of Mexico who married
a U.S. citizen in 1978 and consequently
attained lawful permanent residency in the
United States. After he received at least his
third conviction of driving while intoxicated

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(“DWI”) under Texas law,1 the INS instituted
deportation proceedings under 28 U.S.C.
§ 1227(a)(2)(A)(iii), which renders deportable
any resident alien convicted of an aggravated
felony. After a removal hearing, an
immigration judge found Garcia removable
and ordered his removal to Mexico.
Garcia reserved appeal to the Board of Im-
migration Appeals (the “BIA”) but ultimately
failed to perfect the appeal.2 He did not file an
appeal to this court for direct review of the re-
moval order but, instead, filed a habeas
petition in district court under 28 U.S.C. §
2241. The district court dismissed the
petition, concluding that 8 U.S.C. § 1252
rest ricts jurisdiction over such appeals to
direct review in the court of appeals.
Alternatively, the court held that it lacked
subject matter jurisdiction because Garcia had
failed to exhaust his statutory and
administrative remedies, is not in the custody
of the government for habeas corpus purposes,
and failed to file the petition timely.
II.
Garcia argues on appeal, as he did before
the district court, that the BIA improperly in-
terpreted the term “crime of violence” to in-
clude DWI, resulting in the removal order.3
The government argues that the proper forum
for such a challenge is not via habeas petition
under § 2241, but instead by petition for direct
review, as specified in 8 U.S.C. § 1252(b)(9).
We review de novo the dismissal of a § 2241
petition on the pleadings. See Kinder v. Pur-
dy, 222 F.3d 209, 212 (5th Cir. 2000).
This matter is controlled by Max-George v.
Reno, 205 F.3d 194 (5th Cir. 2000), in which
we held that 8 U.S.C. § 1152(b)(9) denies all
federal habeas jurisdiction under § 2241 for
certain criminal aliens, including those
removed under § 1227(a)(2)(A)(iii), as Garcia
was. See id. at 201. We further held that any
habeas jurisdiction remaining under the
Constitution was insufficient to encompass the
petitioner’s claim in that case, “‘because the
Supreme Court long ago made it clear that this
writ does not offer what [petitioner] desire[s]:
review of a discretionary decision[] by the
political branches of government.’” Id. at 202
(citing Yang v. INS, 109 F.3d 1185 1195 (7th
Cir. 1997)) (modifications in original).
At first glance, § 1252(b)(9) might raise
concerns under the Suspension Clause, given
that 8 U.S.C. § 1252(a)(2)(C) prohibits direct
review of any final removal order under
1 The record is murky with respect to Garcia’s
conviction record. While he admits, in his habeas
petition, to only three convictions, the
government’s motion to dismiss references nine
separate DWI convictions between 1984 and 1997.
2 In reference to the failure to appeal, Garcia's
habeas petition describes the “negligence and mal-
practice” of his former counsel. The petition raises
no issues regarding ineffective assistance of
counsel, however, and we will not raise the issue
sua sponte.
3 Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien
who commits an aggravated felony is rendered de-
portable. Title 8 U.S.C. § 1101(a)(43)(F) defines
“aggravated felony” to include a “crime of vio-
lence,” as defined in 18 U.S.C. § 16, which defines
“crime of violence” as “a felony . . . that, by its
nature, involves substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.”
Because we have no jurisdiction to review the
BIA’s interpretation in a habeas posture, see infra,
we express no view on whether DWI can
reasonably be termed a “crime of violence.”

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§ 1227(a)(2)(A)(iii). As we noted, however,
in Max-George, 205 F.3d at 199, even under
§ 1252(a)(2)(C), a court of appeals has
jurisdiction to determine its own jurisdiction.
When confronted with a petition for review
from a criminal alien, a court of appeals must
make three specific inquiries before dismissing
the petition as barred by § 1252(a)(2)(C): (1)
whether specific conditions act to bar jur-
isdiction over the petition for review;
(2) whether the conditions that bar jurisdic-
tionSSfor example, as in this case, deportation
for an aggravated felonySShave been
“constitutionally applied”; and (3) if the jur-
isdictional bar applies, whether the remaining
quantum of judicial review satisfies the
Constitution. See Max-George, 205 F.3d
at 199-201.
Garcia’s challengeSSwhether his crime is a
ground for removal under § 1227(a)(2)-
(A)(iii)SSwould properly be heard on direct
review. In that posture, this court, in de-
termining whether § 1252(a)(2)(C) applies to
deny us jurisdiction to review the removal or-
der, necessarily would inquire into whether
DWI is a crime of violence.
Unfortunately, Garcia failed to petition for
judicial review of his removal order; instead,
he merely filed a habeas petition under § 2241.
Unless his claim falls within the scope of the
constitutionally-protected writ, the district
court was without jurisdiction.
Garcia’s claim is different from Max-
George’s, because he challenges the BIA’s in-
terpretation of “crime of violence,” while Max-
George challengedSSon due process
groundsSSthe retroactive application of
§ 1227(a)(2)(A)(iii) to cover a crime
committed before the enactment of the Illegal
Immigration Reform and Immigrant
Responsibility Act. See id. at 195. The
difference in the challenges does not present a
valid basis on which to distinguish Max-
George, however. The provision that barred
habeas jurisdiction in Max-George applies to
“[j]udicial review of all 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 under this
subchapter . . . .” 8 U.S.C. § 1252(b)(9).
Thus, § 1252(b)(9) plainly applies to Gar-
cia’s habeas challenge, which deals with the
BIA’s interpretation of “crime of violence” as
defined by 18 U.S.C. § 16. For this reason,
the district court was without jurisdiction to
entertain Garcia’s appeal, so that court’s dis-
missal for want of jurisdiction is AFFIRMED.

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