Molina v. Ziglar, et al

United States Court of Appeals
Fifth Circuit
F I L E D
January 12, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-50596
_______________
ISAAC RAMIREZ-MOLINA,
Petitioner-Appellee,
VERSUS
JAMES ZIGLAR; Et Al,
Respondents,
GRACE WINFREY,
INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL,
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
DEPARTMENT OF HOMELAND SECURITY,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before GARWOOD, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Isaac Ramirez-Molina challenges the rein-
statement of a removal order. Treating this
action as a petition for review, we conclude

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that we are without jurisdiction, so we dismiss
the petition.
Ramirez-Molina was removed from the
United States in 1999 on the basis of a con-
viction of driving while intoxicated (“DWI”).
Shortly after removal, he reentered the United
States in violation of federal law. The Immi-
gration and Naturalization Service (“INS”)
took him into custody and initiated proceed-
ings to reinstate the removal order.
After the removal, but before the INS
sought reinstatement of the order, this court
determined that a DWI conviction is not
ground for removal under the relevant immi-
gration statute. Citing that decision, Ramirez-
Molina brought a habeas corpus action chal-
lenging the reinstatement of the removal order
on due process grounds. The district court
granted habeas relief.
Pursuant to the REAL ID Act, we reverse
the district court’s finding of habeas jurisdic-
tion and instead consider the challenge to the
reinstatement of the removal order as a peti-
tion for review. Finding no jurisdiction to en-
tertain the merits of the claim, we dismiss the
petition.
I.
Ramirez-Molina first entered the United
States in 1984 and became a lawful permanent
resident in 1991. In August 1999 he was con-
victed in state court of DWI, a third-degree
felony, and sentenced to ten years’ confine-
ment, suspended and probated to five years’
community supervision. At that time he had
been convicted of DWI on at least three
occasions.
On December 6, 1999, the INS1 issued a
notice to appear to Ramirez-Molina, asserting
that he was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) on the ground that he had
been convicted of an “aggravated felony,”
which is defined by 8 U.S.C. § 1101(a)(43)(F)
to include a “crime of violence” with a term of
imprisonment of at least one year. A with-
drawn opinion of this court had indicated that
DWI is a crime of violence. See Cama-
cho-Marroquin v. INS, 188 F.3d 649, 652 (5th
Cir. 1999), withdrawn, 222 F.3d 1040 (5th
Cir. 2000).
Ramirez-Molina did not contest removabil-
ity but, instead, on December 22, 1999, sub-
mitted a Stipulated Request for Final Order of
Removal and Waiver o f Hearing in which he
conceded that he was “removable as charged,”
waived the right to a hearing, accepted a writ-
ten order of removal, and waived appeal of
that written order. On December 28, 1999,
the immigration judge granted the request for
a final order and ordered him removed to El
Salvador; he was removed on February 4,
2000.
About two weeks after his removal, Ramir-
ez-Molina reentered the United States in vio-
lation of 8 U.S.C. § 1326(a) and was taken in-
to custody by the INS on December 18, 2001.
The next day, the INS issued a Notice of In-
tent/Decision to Reinstate Prior [Removal] Or-
der pursuant to 8 U.S.C. § 1231(a)(5), which
authorizes such reinstatement by the Attorney
1 The INS ceased to exist on March 1, 2003.
Its enforcement functions have been assumed by
the Bureau of Immigration and Customs Enforce-
ment (“BICE”), an agency within the Department
of Homeland Security. But, because the events in
this case took place before the reorganization of
immigration enforcement duties, we refer to the
agency as the INS.

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General when an alien illegally reenters after
being removed. After a reinstatement, §
1231(a)(5) allows the Attorney General to
remove the alien without additional proceed-
ings. Ramirez-Molina was also indicted for
illegal reentry under § 1326, but the district
court dismissed the indictment.
On May 13, 2002, Ramirez-Molina filed
motions with the Executive Office for Immi-
gration Review requesting a stay of removal
and asking that the 1999 removal proceedings
be reopened and terminated on the basis of
United States v. Chapa-Garza, 243 F.3d 921
(5th Cir. 2001), in which a panel of this court
reached a conclusion opposite to that reached
in the withdrawn opinion in Camacho-Mar-
roquin and stated that DWI is not a crime of
violence. Accordingly, in this circuit a DWI
conviction is no longer an aggravated felony
that triggers removability.
Ramirez-Molina contended that Chapa-
Garza applies retroactively to his 1999 remov-
al proceedings, rendering those proceedings,
and therefore reinstatement of the resulting re-
moval order, invalid. The immigration judge
granted a stay of removal on May 14, 2002,
without ruling on the motion to reopen and
terminate. On May 24, 2002, Ramirez-Molina
filed his habeas petition, contending that
(1) the 1999 removal order was invalid be-
cause, given our subsequent decision in Cha-
pa-Garza, it was based on an erroneous inter-
pretation of the law; (2) the invalidity of the
underlying removal order meant that his re-
entry was lawful and outside the scope of
8 U.S.C. § 1231(a)(5) (thus precluding rein-
statement of the prior order); and (3) the re-
instatement proceedings were in violation of
due process because they were initiated on the
basis of an invalid removal order.
Adopting the report of a magistrate judge,
the district court conditionally granted habeas
relief, holding that pursuant to INS v. St. Cyr,
533 U.S. 289, 311 (2001), it had jurisdiction
under 28 U.S.C. § 2241 to review the removal
order in a habeas proceeding. With regard to
the merits, the court held that Chapa-Garza
applies retroactively to the 1999 removal pro-
ceedings, rendering them “fundamentally un-
fair” because the INS misinterpreted the law.
On that basis, the court determined that the
1999 removal order was void ab initio and
therefore held that reinstatement of the order
was improper. The issuance of the writ was
conditioned on the government’s failure to va-
cate both the underlying order of removal and
the reinstatement order within ten days.
II.
After the government filed its appeal, Con-
gress on May 11, 2005, enacted the REAL ID
Act, Pub. L. No. 109-13, 119 Stat. 231, which
amends the Immigration and Nationality Act
(“INA”) by explicitly foreclosing habeas re-
view of removal orders and by providing that
a petition for review is the sole and exclusive
means of judicial review for all removal orders
except those issued pursuant to 8 U.S.C. §
1225(b)(1). See Pub. L. No. 109-13, 119 Stat.
231, 310, § 106(a)(1)(B). More specifically,
the REAL ID Act amends 8 U.S.C. § 1252(a)-
(2)(C) to provide that the wholesale preclusion
of judicial review where a removal order is
based on, inter alia, the alien’s commission of
an aggravated felony includes a preclusion of
habeas review. See Pub. L. No. 109-13, 119
Stat. 231, 310, § 106(a)(1)(A)(ii). The REAL
ID Act thus supplies, in this context, the “clear
statement of congressional intent to repeal ha-
beas jurisdiction” that the St. Cyr Court found
lacking.
Aside from addressing the clarity with
which congressional intent needs to be ex-
pressed, the Court in St. Cyr also asserted that

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if the jurisdictional provisions of the INA did
in fact preclude all judicial review in certain
circumstances, as they now do as a result of
the REAL ID Act, then Suspension Clause
concerns would be implicated with regard to
“pure questions of law.” St. Cyr, 533 U.S. at
300. The REAL ID Act addresses this consid-
eration in § 1252(a)(2)(D), which provides
that
[n]othing in subparagraph (B) or (C), or in
any other provision of this chapter (other
than this section) which limits or eliminates
judicial review, shall be construed as pre-
cluding review of constitutional claims or
questions of law raised upon a petition for
review filed with an appropriate court of
appeals in accordance with this section.
Thus, although habeas jurisdiction to re-
view removal orders issued on the basis of an
alien’s conviction of an aggravated felony has
been foreclosed by the REAL ID Act, federal
courts of appeals now have jurisdiction, sub-
ject to other provisions of § 1252 and jurisdic-
tional conditions outside the scope of the INA,
to consider, on a petition for review, constitu-
tional claims and questions of law with regard
to such orders on a petition for review. Con-
gress specified that the provisions of the
REAL ID Act were to take effect immediately
and retroactively upon enactment. See Pub. L.
No. 109-13, 119 Stat. 231, 311, § 106(b).
As a consequence of this new jurisdictional
framework, “[w]e can no longer consider . . .
challenge[s] [to removal orders] in the context
of habeas review. . . . Rather, we must now
determine whether [petitioner’s] challenge is
properly converted into a petition for review
under the REAL ID Act and, if so, whether we
have jurisdiction to entertain that petition.”
Rosales v. BICE, 426 F.3d 733, 736 (5th Cir.
2005) (per curiam), cert. denied, 2006 U.S.
LEXIS 619 (U.S. Jan. 9, 2006).2 Although
Congress provided that a habeas petition pend-
ing before a district court as of the REAL ID
Act’s effective date was to be transferred to
the appropriate court of appeals and converted
into a petition for review, see Pub. L. No.
109-13, 119 Stat. 231, 311, § 106(c), it did
not specify what was to happen to habeas
petitions that were already on appeal as of that
effective date.
Following the Third and Ninth Circuits,3
we have decided that “despite Congress’s sil-
ence on this issue, habeas petitions on appeal
as of May 11, 2005, . . . are properly con-
verted into petitions for review.” Rosales, 426
F.3d at 736. Exercising our undeniable appel-
late jurisdiction over the government’s appeal
of the grant of habeas relief, we therefore
reverse the district court’s finding of habeas
jurisdiction and convert the instant habeas
appeal into a petition for review.4 We turn
2 On the basis of the REAL ID Act, the govern-
ment filed a motion to convert the habeas appeal
into a petition for review. Ramirez-Molina does
not oppose conversion. Nevertheless, because
conversion implicates jurisdictional issues, we must
determine for ourselves whether it is appropriate.
3 See Alvarez-Barajas v. Gonzales, 418 F.3d
1050, 1052-53 (9th Cir. 2005); Bonhometre v.
Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
4 At oral argument, there was some confusion
with regard to whether we should convert the ha-
beas petition into a petition for review of the ori-
ginal 1999 removal order or of the reinstatement of
that order. We conclude that Ramirez-Molina’s
challenge is now properly converted into a petition
for review of the reinstatement. The initial habeas
petition demonstrates that he is challenging rein-
statement on the ground that the underlying re-
moval order is invalid. Although the validity of the
(continued...)

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now to whether we have jurisdiction to enter-
tain the petition for review.
III.
We review questions of law as to jurisdic-
tion de novo. See Bissonnet Invs., LLC v.
Quinlan, 320 F.3d 520, 522 (5th Cir. 2003);
In re Liljeberg Enters., Inc., 304 F.3d 410,
423 (5th Cir. 2002). We utilize that standard
of review here.
A.
Nothing in the REAL ID Act precludes our
jurisdiction over this petition. As we noted in
the previous section, the REAL ID Act allows
the courts of appeals to review constitutional
and legal claims regarding removal orders even
where the Act renders an order otherwise
unreviewable. Because Ramirez-Molina chal-
lenges reinstatement of the 1999 removal or-
der on constitutional and legal grounds, we are
not barred from reviewing his claims merely
because the INA, as amended by the REAL ID
Act, generally forecloses all judicial review of
removal orders issued on the basis of an alien’s
conviction of an aggravated felony. See 8
U.S.C. § 1252(a)(2)(C), (D).
The REAL ID Act has in fact removed one
barrier to our jurisdiction that might otherwise
have existed. Title 8 U.S.C. § 1231(a)(5) spe-
cifies that when the Attorney General rein-
states an order of removal after an alien re-
enters the United States in violation of that or-
der, the order “is not subject to being re-
opened or reviewed.” In the aftermath of St.
Cyr, questions arose about the circumstances
under which § 1231(a)(5) can operate to
preclude judicial review of an underlying
removal order in the context of a habeas pro-
ceeding regarding reinstatement.5 The prob-
lem was that if there were no judicial review
available to an alien in the initial removal
proceedings, then § 1231(a)(5)’s foreclosure
of judicial review of constitutional and legal
claims regarding that order after reinstatement
arguably would implicate the Suspension
Clause concerns articulated in St. Cyr.6
The REAL ID Act renders that discussion
moot by codifying § 1252(a)(2)(D). In addi-
tion to carving out exceptions to the jurisdic-
tion-stripping provisions of § 1252 for consti-
tutional and legal claims, § 1252(a)(2)(D)
states that “[no] other provision of this chap-
ter . . . which limits or eliminates judicial re-
view, shall be construed as precluding consti-
tutional claims or claims of law.” Section
1231 is in the same chapter as § 1252. Be-
cause § 1231(a)(5) limits judicial review,
§ 1252(a)(2)(D) prevents its operation in cas-
es, such as this one, in which the validity of an
underlying order is questioned on constitution-
al or legal grounds.
B.
The REAL ID Act does not, however, fore-
close the applicability of two other jurisdic-
tional barriers: the requirement that adminis-
trative remedies be exhausted before an alien
seeks judicial review of a removal order7 and
4(...continued)
1999 removal order is thus central to the claims, it
is the INS’s decision to reinstate that order that is
the subject of direct attack. Converting a habeas
petition into a petition for review changes the form,
but not the substance, of a challenge to executive
action.
5 See Smith v. Ashcroft, 295 F.3d 425 (4th Cir.
2002); Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169, 1173 (9th Cir. 2001).
6 See Smith, 295 F.3d at 428-29.
7 A court may review a final order of removal
(continued...)

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the fact that the initial removal proceedings
must constitute a gross miscarriage of justice,
Lara v. Trominski, 216 F.3d 487, 491 (5th Cir.
2000), for this court to entertain a collateral
attack on a removal order. Given our conclu-
sion, which we will explain, that there is no
gross miscarriage here, we pretermit discus-
sion of the exhaustion question.
In Lara, id., we held that “[w]e can review
[a] collateral challenge to [a] prior deportation
order if and only if that deportation involved a
gross miscarriage of justice.”8 Ramirez-
Molina is challenging reinstatement of the
1999 removal order on the ground that the al-
ready-executed order is invalid. Thus, even
presented in the form of a petition for review
instead of a habeas petition, the crux of his
claim constitutes a collateral attack on the
1999 removal order. Accordingly, in the con-
text of a petition for review of a reinstatement
decision, we can review the validity of the un-
derlying removal order only if Ramirez-Molina
establishes that there was a gross miscarriage
of justice in the initial proceedings.9
This court has yet to develop a precise stan-
dard for what constitutes a gross miscarriage
of justice sufficient to allow us to consider the
merits of a petitioner’s collateral attack on a
removal order. For purposes of this case, it is
enough to note one crucial consideration that
leads us to conclude that there was no gross
miscarriage of justice in the 1999 removal pro-
ceedings: Ramirez-Molina failed to contest his
removability in those proceedings.
There, Ramirez-Molina conceded remova-
bility and waived appeal of the removal order.
“[S]uch waivers are a critical factor in denying
claims that deportation proceedings constitut-
ed a gross miscarriage of justice.” Id. at 494.
Our holding in Steffner provides the basis for
this comment in Lara. Although the statutory
framework in effect at the time of Steffner was
somewhat different from the one governing
this case, the relevant facts underlying Steffner
are remarkably similar to those at issue here.
Steffner was deported in 1936 for past
membership in the Communist Party. The Su-
preme Court then determined that only present
7(...continued)
only if “the alien has exhausted all administrative
remedies available to the alien as of right.”
8 U.S.C. § 1252(d).
8 See also Ponce-Gonzalez v. INS, 775 F.2d
1342, 1345 (5th Cir. 1985); United States ex rel.
Steffner v. Carmichael, 183 F.2d 19, 20 (5th Cir.
1950).
9 In the context of a criminal indictment for il-
legal reentry under § 1326, courts have explicit
statutory authority to entertain and grant a motion
to suppress the underlying removal order that al-
legedly renders reentry illegal if a consideration of
certain factors makes the order invalid. The fac-
tors courts must consider arise from United States
v. Mendoza-Lopez, 481 U.S. 828 (1987), but the
(continued...)
9(...continued)
statutorily-granted authority to entertain a collat-
eral attack on a removal order underlying a crimi-
nal indictment does not extend to a collateral attack
on a removal order underlying a reinstatement
order, which is civil in nature. See id. at 839 (“We
note parenthetically that permitting collateral
challenge to the validity of deportation orders in
proceedings under § 1326 does not create an op-
portunity for aliens to delay deportation, since the
collateral challenge we recognize today is available
only in criminal proceedings instituted after reen-
try.”). Our precedents that establish the factors to
be considered under Mendoza-Lopez to allow a
collateral attack on an underlying removal order in
criminal proceedings are therefore irrelevant to this
case.

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membership in a subversive organization can
render an alien deportable. See Kessler v.
Strecker, 307 U.S. 607 (1939). Without the
permission of the Attorney General to reapply
for admission, Steffner reentered the United
States in 1941. Immigration authorities took
him into custody and initiated deportation
proceedings on the basis of the 1936 order.
Steffner argued that he could not be deported
because Strecker had rendered the 1936 order
void ab initio. This court refused to find a
gross miscarriage of justice sufficient to war-
rant collateral review of the 1936 order, in
large part because Steffner
did not elect to test the validity of his 1936
deportation order. He had his day before
the immigration authorities, who decided
that he should be deported. There is no
showing that his failure to test the validity
of his order was due to any cause other
than his desire not to do so.
Steffner, 183 F.2d at 20-21.
The government contends that Steffner ap-
plies to this case and yields the same result.
Ramirez-Molina counters that we cannot give
weight to his failure to contest the 1999 order
in the initial proceedings because, unlike the
alien in Steffner, he had no chance to challenge
those proceedings in federal court. Ramirez-
Molina’s attempt to distinguish Steffner fails,
because this court had the power to rule in Ra-
mirez-Molina’s favor had he appealed here
after pursuing any required administrative
procedures. Had he sought review in this
court before he was removed, we would have
had jurisdiction to consider his claim.
Notwithstanding the fact that § 1252(a)-
(2)(C) precludes judicial review of removal
orders issued on the basis of the alien’s com-
mission of an aggravated felony, we retain jur-
isdiction to determine our own jurisdiction.
Salazar-Regino v. Trominski, 415 F.3d 436,
443 (5th Cir. 2005). Whether an offense is an
aggravated felony is a jurisdiction-triggering
fact: If we determined that DWI was not an
aggravated felony (as we eventually did in
Chapa-Garza), § 1252(a)(2)(C) would not ap-
ply, and we could review and vacate any re-
moval order based on a DWI conviction. Ca-
macho-Marroquin was not an absolute bar to
our ruling in Ramirez-Molina’s favor, because
we could have overruled that decision en banc.
In short, had Ramirez-Molina appealed to
this court, he could have attained the result
that was ultimately achieved by the petitioner
in Chapa-Garza. The fact that Ramirez-Mo-
lina erroneously believed no avenue of federal
judicial review was available is of no conse-
quence. Because he failed to contest his re-
movability in the 1999 proceedings, he cannot
establish that there was a gross miscarriage of
justice in those proceedings. Therefore, we
have no jurisdiction to entertain his collateral
challenge to the validity of the 1999 order, so
we find it unnecessary to discuss the merits of
that claim.
In summary, we REVERSE the district
court’s finding of habeas jurisdiction, convert
the habeas petition into a petition for review,
and DISMISS the petition for review for want
of jurisdiction.

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