Gelin v. Ashcroft

* 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that this opinion should not be published and is not precedent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. 02-30398
Summary Calendar
DEDLON GELIN,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-2243
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November 19, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Dedlon Gelin appeals the district court’s dismissal of his 28
U.S.C. § 2241 petition, which challenged his removal order based
upon his Massachusetts conviction for distribution of cocaine.
Gelin argues that he is entitled to a withholding of removal under
8 U.S.C. § 1231(b)(3) or a deferral of removal under the Convention
Against Torture under 8 C.F.R. § 208.17. He does not raise issue
with the district court’s determination that he was not entitled to

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No. 02-30398
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seek INA § 212(c). Gelin has thus waived the claim, and we not
address it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). The district court judgment as to this claim is AFFIRMED.
With respect to Gelin’s claims that he was entitled to either
a withholding or a deferral of removal based upon his contention
that he will be persecuted and/or tortured upon his return to
Haiti, Gelin did not clearly assert these claims in the district
court until his objections to the magistrate judge’s report, and
the district court never addressed the claims. The claims should
have been addressed. See United States v. Riascos, 76 F.3d 93, 94
(5th Cir. 1996).
Gelin did not include any of the records from his removal
proceedings. Whether he has raised these claims before the
immigration judge and the Board of Immigration Appeals and whether
he exhausted his administrative remedies are not clear. The
district court’s order dismissing Gelin’s 28 U.S.C. § 2241 petition
is VACATED and the case is REMANDED so that the district court may
address Gelin’s withholding and deferral of removal claims and
determine whether Gelin has exhausted his administrative remedies
with respect to those claims.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

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