Opinion
No. 3:04-CV-2578-M.
March 4, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of Referral dated December 8, 2004, subject cause has previously been referred to the United States Magistrate Judge for hearing, if necessary, and recommended disposition of the instant petition for writ of habeas corpus. Furthermore, by Order Referring Motion dated February 17, 2005, the District Court referred petitioner's Motion for Leave to Amend Petitioner's Petition for Writ of Habeas Corpus to the United States Magistrate Judge for hearing, if necessary, and recommended disposition. The Magistrate Judge hereby issues the following findings, conclusions, and recommendation with respect to both referrals.
I. BACKGROUND
A. Historical
Petitioner is a citizen of India who was admitted entry into the United States as a nonimmigrant student in 1988. ( See Notice to Appear, attached as Ex. 4 to Resp.'s Resp.) His student status ended in 1993. ( Id.)
On March 28, 2001, police officers responded to a potential burglary at petitioner's home; during their search of the premises they found marijuana, scales, a small "baggie", and a loaded AK-47 rifle in petitioner's bedroom. ( See Offense/Incident Report, attached as Ex. 1 to Resp.'s Resp.) Based upon information from the Offense/Incident Report, a State Magistrate found probable cause to issue an arrest warrant for petitioner for possession of marijuana. ( See Aff. for Arrest Warrant or Capias, attached as Ex. 2 to Resp.'s Resp.; Warrant of Arrest and Detention, attached as Ex. 3 to Resp.'s Resp.)
An officer testified that the search resulted in finding approximately 120 grams of marijuana. ( See Tr. at 83, attached as Ex. 11 to A m. Pet.) One hundred and twenty grams converts to 4.23 ounces.
On May 14, 2001, immigration authorities sent a Notice to Appear to petitioner commencing proceedings to remove him from the United States. ( See Notice to Appear.) According to that notice, petitioner was subject to removal for his "fail[ure] to maintain or comply with the nonimmigrant status under which [he] was admitted." ( Id.)
On July 26, 2001, an Immigration Judge (IJ) commenced a removal hearing on the charge to remove petitioner for his failure to maintain non-immigrant status. ( See Tr. at 1, attached as Ex. 11 to Am. Pet.) Petitioner conceded "deportability" and applied for an adjustment of status based upon the naturalization of his parents as United States citizens. ( Id. at 1-2.) Due to the pending criminal case involving marijuana, the IJ continued the hearing several times. ( See id. at 2-3, 5-6, 14, 17, 34, 42.) On April 3, 2003, the parties informed the IJ that the criminal charge against petitioner had been dropped. ( Id. at 43.) The IJ thus scheduled a hearing for August 25, 2003, to consider petitioner's requested adjustment of status. ( See id. at 58.)
On August 25, 2003, the IJ heard testimony and received documentary evidence regarding petitioner's requested adjustment of status. ( See id. at 61-142.) At the conclusion of the hearing, the IJ issued an oral decision. ( See Oral Decision of the IJ at 1-10, attached as Ex. 10 to Am. Pet.) Although petitioner claimed that he knew nothing of the items found in his bedroom, the IJ concluded that petitioner was not eligible for admission to the United States pursuant to § 212(a)(2)(C)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(C) because there was reason to believe he was involved in drug-trafficking. ( Id. at 7-10.) Consequently, the IJ denied petitioner's application for adjustment of status and ordered petitioner removed to India. ( See Order of IJ, attached as Ex. 9 to Am. Pet.)
As amended in 1999, that section reads in pertinent part:
Any alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so . . . is inadmissible.8 U.S.C. § 1182(a)(2)(C) (Supp. 2004).
On September 16, 2003, petitioner appealed the decision to deny him an adjustment of status. ( See Ex. 8 attached to Am. Pet.) On August 25, 2004, the Board of Immigration Appeals (BIA) affirmed the decision without opinion. ( See Decision of BIA, attached as Ex. 7 to Am. Pet.) On September 9, 2004, petitioner filed a petition for review with the Fifth Circuit Court of Appeals. ( See Pet. for Review, attached as Ex. 6 to Am. Pet.) He argued that the finding of the IJ regarding "removability/denial of adjustment of status as relief from removability was contrary to the statute and regulations and a violation of his right to a hearing consistent with fundamental fairness and due process of law." ( See Petitioner's Mot. for Stay of Removal at 2, attached as Ex. 5 to Am. Pet.) On November 12, 2004, the Fifth Circuit dismissed the petition for lack of jurisdiction without opinion. See Demello v. Ashcroft, No. 04-60800, slip op. (5th Cir. Nov. 12, 2004) (copy attached as Ex. 2 to Am. Pet.)
B. Filings in this Action
On December 3, 2004, petitioner filed his original petition for writ of habeas corpus naming Angela Barrows, Director Dallas District, and John Ashcroft, United States Attorney General, as respondents. ( See Pet. at 1.) He claims that the Court has habeas jurisdiction over this action under 28 U.S.C. § 2241, and federal question jurisdiction under 28 U.S.C. § 1331; the Administrative Procedure Act, 5 U.S.C. §§ 701-706; the Declaratory Judgment Act, 28 U.S.C. § 2201; and the All Writs Act, 28 U.S.C. § 1651. ( Id. at 2.) He challenges 8 U.S.C. § 1182(a)(2)(C) as applied to label him as a drug trafficker and make him inadmissible to the United States and ineligible for an adjustment of status. ( Id. at 3.) He argues "that he is not a drug trafficker and that the Immigration Judge did not have enough evidence to have [a] `reason to believe' that the Petitioner is involved in drug trafficking." ( Id.) He further argues that he has a Constitutional right to a fair and impartial proceeding under the Due Process Clause of the Fifth Amendment to the United States Constitution, and that the IJ violated such right by being "abusive and impartial." ( Id. at 7.) By this action, petitioner seeks to enjoin the government from "immediately removing" him from the United States. ( Id. at 10.) He also wants the Court to declare that he is not an "illicit trafficker in any controlled substances" and to order the case remanded to the BIA for further consideration. ( Id.)
On February 8, 2005, respondents filed their response in opposition to the petition. ( See Resp.'s Resp. at cover.) They argue that petitioner has not named a proper respondent. ( Id. at 5-6.) They also argue that the Fifth Circuit Court of Appeals has already considered and rejected petitioner's claims when it dismissed his petition for review, and thus this Court lacks habeas jurisdiction over his claims. ( Id. at 6-13.) Further, they contend, petitioner fails to state a viable claim for habeas relief, and that if jurisdiction exists for this action, it lies only under 28 U.S.C. § 2241. ( See id. at 13-19.) They move to dismiss this action for lack of jurisdiction, or alternatively, for failure to state a claim for habeas relief. ( Id. at 19.) They also advised the Court that petitioner will not be removed from the United States before March 7, 2005. ( See Resp.'s Advisory to the Court at 3.)
On February 11, 2005, petitioner filed a reply to respondent's response, ( see Petitioner's Reply, hereinafter Reply), and moved for leave to file an amended petition to change the named respondent in this action to Nuria Prendes, ( see Mot. for Leave at 1-2).
II. LEAVE TO AMEND
The Court first addresses whether to grant petitioner's requested amendment. He seeks to amend the petition merely to substitute Nuria Prendes, Field Office Director of Detention and Removal Operations for Immigration and Customs Enforcement as respondent for the currently named respondents, Angela Barrows and John Ashcroft. Other than changing the named respondent, the amended petition reiterates the claims, arguments, and prayer for relief asserted in the original petition. ( Compare Pet. at 5-11 with Am. Pet. at 5-11.) Because respondents indicate that they do not oppose the proposed amendment, the Court should grant petitioner leave to amend his petition. Upon acceptance of this recommendation regarding petitioner's motion to amend, the Court should direct the Clerk of Court to file the original amended petition in this action, terminate the current respondents from this action, and substitute Nuria Prendes as respondent.
Due to the possibility of removal on March 7, 2005, the Court has expedited consideration of this matter to the extent possible, and considered the amended petition without ordering further response to it. The Court will consider the response filed against the original petition as though it was filed against the amended petition. It will also consider the other briefing submitted with respect to the original petition.
III. GENERAL JURISDICTION
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). They have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). With these principles in mind, the Court addresses the asserted bases for jurisdiction over this action.
Petitioner invokes federal question jurisdiction under 28 U.S.C. § 1331. However, § 1331 is a general jurisdictional statute and provides no independent basis for this immigration action. Section 1331 confers federal jurisdiction in actions "arising under the Constitution, laws, or treaties of the United States." This Court has repeatedly rejected reliance on § 1331 as an independent basis for jurisdiction in immigration cases. See Noorani v. Ashcroft, 3:03-CV-2746-N, 2004 WL 2049308, at *2 (N.D. Tex. Sept. 14, 2004), accepted by, 2004 WL 2203252 (N.D. Tex. Sept.29, 2004); Alvarez-Zavala v. INS, No. 3:02-CV-2724-N, 2004 WL 420030, *1-2 (N.D. Tex. Feb. 19, 2004), accepted by, 2004 WL 925365 (N.D. Tex. Mar. 12, 2004). Section 1331 provides no basis for jurisdiction over petitioner's claims.
Petitioner also asserts that the Court has jurisdiction over this action under the All Writs Act, 28 U.S.C. § 1651. However, the Fifth Circuit has held that "the All Writs Act does not confer an independent basis for subject matter jurisdiction." Renteria-Gonzalez v. INS, 322 F.3d 804, 811 (5th Cir. 2002); accord Morris v. T E Marine Corp., 344 F.3d 439, 443 (5th Cir. 2003) (citing Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002)). Consequently, § 1651 provides no jurisdictional basis for this action.
Petitioner also specifically invokes the Declaratory Judgment Act, 28 U.S.C. § 2201, as a basis for jurisdiction. However, "the Declaratory Judgment Act, as a procedural statute, [is also] not an independent basis of federal jurisdiction." Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 447 n. 11 (5th Cir. 2002) (footnote omitted); accord In re B-727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001); Gaar v. Quirk, 86 F.3d 451, 453 (5th Cir. 1996).
Petitioner also indicates that this action arises under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. Section 701(a)(1) specifically makes the APA inapplicable when another statute precludes judicial review. Section 1252(a)(1) of Title 8 of the United States Code precludes judicial review of final orders of removal except as provided in § 1252(b) and chapter 158 of Title 28. The combination of § 1252 and § 701(a)(1) make the APA inapplicable in this case.
IV. HABEAS JURISDICTION
To the extent this Court has jurisdiction over the instant action, such jurisdiction arises under 28 U.S.C. § 2241. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, codified at 8 U.S.C. § 1101 et seq., governs federal habeas jurisdiction in cases involving aliens. See Perez v. Reno, 227 F.3d 294, 294 (5th Cir. 2000). IIRIRA's transitional rules govern deportation proceedings that commenced before April 1, 1997, IIRIRA's effective date, and conclude more than thirty days after IIRIRA's passage on September 30, 1996. Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03 (5th Cir. 1999); IIRIRA § 309(c)(11), (4), 110 Stat. 3009-625, -626. IIRIRA's permanent rules govern deportation proceedings that commenced after April 1, 1997. See Perez, 227 F.3d at 294. Because the deportation proceedings against petitioner commenced after April 1, 1997, the permanent rules apply here.
The Supreme Court has made clear that the federal district courts retain "habeas jurisdiction under § 2241" in the aftermath of the 1996 enactments of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and IIRIRA. See INS v. St. Cyr, 533 U.S. 289, 293, 313-14 (2001). Although habeas jurisdiction exists, the petitioner must still properly invoke § 2241 to present his claims in this Court and raise claims that fall within the scope of habeas jurisdiction. There is no question that petitioner is in custody within the meaning of § 2241, so that he may properly seek relief under that statute. The Court, however, must determine whether he has raised claims that are encompassed by the scope of habeas jurisdiction. A. Scope of Habeas Jurisdiction Generally
In this instance, petitioner argues that the scope of habeas corpus jurisdiction encompasses the review of statutory immigration claims and the "legal validity" of final orders of removal. ( See Am. Pet. at 5.) He contends that this case involves the statutory interpretation of 8 U.S.C. § 1182(a)(2)(C). ( Id.) He further argues that the scope of habeas jurisdiction encompasses the review of Constitutional challenges and claims. ( Id. at 7.) Although he concedes that review of factual findings and discretionary determinations lie outside the scope of habeas review, he submits that he is asking for no ruling on any discretionary decision. ( See id. at 9.)
The government contends that the Fifth Circuit Court of Appeals has already considered and rejected petitioner's claims, when it determined that it lacked jurisdiction over petitioner's petition for review. (Resp.'s Resp. at 6-7.) It argues that the "Fifth Circuit's determination of the jurisdictional facts of this case is binding on this Court and precludes collateral review by way of habeas corpus." ( Id. at 7 (citing Santos v. Reno, 228 F.3d 591 (5th Cir. 2000) among other cases).) Alternatively, the government argues that petitioner fails to state a viable claim for habeas relief. ( Id. at 13-17.)
Relying on Santos, this Court has held that the scope of habeas jurisdiction does not encompass claims by a non-criminal alien that could have been presented to the appellate court in a petition for review. See Noorani v. Ashcroft, 3:03-CV-2746-N, 2004 WL 2049308, at *6-8 (N.D. Tex. Sept. 14, 2004) (findings, conclusions and recommendation), accepted by 2004 WL 2203252 (N.D. Tex. Sept. 29, 2004). In Noorani, the petitioner had not filed a petition for review, although 28 U.S.C. § 1252(a)(2)(C) did not preclude the appropriate court of appeals from considering such a petition because the petitioner was a non-criminal alien. Here, on the other hand, petitioner did file a petition for review that the court of appeals dismissed for lack of jurisdiction. Accordingly, the Court must determine whether the scope of habeas jurisdiction encompasses claims that were presented to the appellate court in a petition for review that was ultimately dismissed for lack of jurisdiction.
Santos holds that when the court of appeals necessarily considers a claim made in a petition for review to determine that it lacks jurisdiction over the petition for review, the district courts lack jurisdiction over such claim in a subsequent habeas petition. See Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000). If Santos remains viable precedent for such proposition after St. Cyr and the enactment of IIRIRA and AEDPA, and if the court of appeals necessarily considered the claims petitioner raises in this habeas action to determine that it lacked jurisdiction over the petition for review, this Court likewise lacks jurisdiction over the claims raised herein.
This Court has already held that aspects of Santos survive the enactment of IIRIRA and AEDPA, and the issuance of the St. Cyr decision. See Noorani, 2004 WL 2049308, at *6-8. Although Noorani considered the viability of Santos in a different context, its rationale supports a finding that Santos remains viable for the proposition that when the court of appeals necessarily considers a claim made in a petition for review to determine that it lacks jurisdiction over the petition for review, the habeas jurisdiction of the district courts does not encompass such a claim. Although this aspect of Santos derives from § 309(c)(4)(G) of the transitional rules of IIRIRA, § 241(a)(2)(A)(iii) of INA, and 8 U.S.C. § 1105a(c), these provisions have all found their way into the existing statutory scheme. Santos recognized that § 241(a)(2)(A)(iii) of INA is now codified at 8 U.S.C. § 1227(a)(2)(A)(iii). See 228 F.3d at 597. Furthermore, § 309(c)(4)(G) is "nearly identical" to the permanent rules of IIRIRA governing judicial review of final orders of removal codified at 8 U.S.C. § 1252. See Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir. 2003). Additionally, "[a]lthough Congress repealed § 1105a(c) with the enactment of IIRIRA, that provision was essentially incorporated into the permanent rules of IIRIRA through 8 U.S.C. § 1252(d)(2)." Noorani, 2004 WL 2049308, at *5 (citing Pequeno-Martinez v. Trominski, 281 F. Supp. 2d 902, 911 (S.D. Tex. 2003), aff'd sub nom. Calderon-Terrazas v. Ashcroft, No. 03-41318, 2004 WL 2476500 (5th Cir. Nov. 4, 2004)). Because St. Cyr did not affect the scope of habeas jurisdiction, it has had no impact on the continued viability of Santos.
Section 309(c)(4)(G) precluded any appeal "in the case of an alien who is deportable by reason of having committed any of a series of designated criminal offenses, including those covered in INA § 241(a)(2)(A)(iii)." Santos, 228 F.3d at 597. In general, § 1105a(c) precluded courts from entertaining a petition for review or a petition for writ of habeas corpus "if the validity of the order has been previously determined." Id. at 596 n. 8.
Section 1227(a)(2)(A)(iii) provides that an "alien who is convicted of an aggravated felony at any time after admission is deportable."
As was the case in Noorani, "[i]n view of the similarities between § 1252(d)(2) and the former governing provision, § 1105a(c), the Court finds that the limitations on the scope of habeas review under the transitional rules, as represented by the holdings in Requena-Rodriguez [ v. Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999)] and Santos, remain viable under the permanent rules of IIRIRA." Noorani, 2004 WL 2049308, at *6. Because Santos remains viable precedent under the permanent rules governing the instant case, the Court finds that the scope of available habeas jurisdiction provided for by St. Cyr does not encompass the claims that petitioner raises in his habeas petition which were raised in his petition for review and necessarily considered by the court of appeals to determine that it lacked jurisdiction over the petition for review.
B. Claims Necessarily Considered to Determine Lack of Jurisdiction
Because Santos remains viable precedent for the proposition that claims which a court of appeals necessarily considers in determining whether it has jurisdiction over a petition for review do not fall within the scope of habeas jurisdiction, the Court must determine whether the Fifth Circuit necessarily considered petitioner's claims when it dismissed his petition for review for lack of jurisdiction. In his reply brief, petitioner strongly argues that the Fifth Circuit did not consider his claims as shown by the summary dismissal of his petition for review without explanation. The government, on the other hand, contends that the appellate court most certainly did consider petitioner's current claims when it dismissed his petition for review for lack of jurisdiction. To determine the basis for the appellate decision, the Court looks to the jurisdictional arguments raised with respect to the petition for review.
The petition for review filed with the Fifth Circuit Court of Appeals merely indicates that petitioner "hereby petitions the court for review of the Order of the Board of Immigration Appeals." ( See Pet. for Review.) However, contemporaneously with his petition for review, petitioner also filed a motion for stay and a memorandum in support of that motion. ( See Petitioner's Mot. for Stay of Removal and Mem. Supp., both attached as Ex. 5 to Am. Pet.) Within that supporting memorandum, petitioner argued that the Fifth Circuit had jurisdiction over his petition for review because 8 U.S.C. § 1252(a)(2)(C) specifies that jurisdiction is barred when the petitioner "is removable by reason of having committed a criminal offense covered in section 1182(a)(2)" and, in his case, the IJ merely found that there was reason to believe that he is a drug trafficker. ( Id. at 6-7.) He further argued that "even if the court's ability to review a final order is limited by [§ 1252(a)(2)(C)], the court has jurisdiction to consider its own jurisdiction" which "means that the court will first determine whether the immigration official had `reason to believe' that the alien was involved in illicit drug trafficking." ( Id. at 7.) Petitioner also argued that § 1252(a)(2)(B)(ii) does not preclude jurisdiction, because the IJ specifically indicated that he did not reach the issue of discretion when he denied petitioner's request for adjustment of status. ( Id. at 8.)
The government moved to dismiss the petition for review for lack of jurisdiction. ( See Mot. Dismiss, attached as Ex. 4 to Am. Pet.) It argued that, "[i]f the Court determines that the jurisdictional facts for review preclusion are present, and that no substantial constitutional issues are raised, it must dismiss the petition for review for lack of jurisdiction." ( Id. at 6.) It specifically relied on § 1252(a)(2)(C) for its argument for review preclusion, and asserted that the court of appeals would necessarily review whether petitioner is an alien who is removable by reason of having committed an offense covered by § 1182(a)(2). ( Id. at 5-6.) While noting that the appellate court has jurisdiction to review substantial constitutional questions, the government argued that petitioner's due process claim does not raise a substantial constitutional question because there is no evidence to support such a claim. ( Id. at 8-9.)
On November 12, 2004, the Fifth Circuit granted the government's motion to dismiss without elaboration, and dismissed the petition for review. See Demello v. Ashcroft, No. 04-60800, slip op. (5th Cir. Nov. 12, 2004) (stating "IT IS FURTHER ORDERED that respondent's motion to dismiss the petition for review for lack of jurisdiction is granted"). Although the opinion does not specifically state the reasons for dismissal, the fact that the court granted the motion to dismiss indicates that the dismissal was based upon the arguments within that motion. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 328 n. 6 (5th Cir. 2004) (relying upon arguments in briefing on motion to dismiss to determine potential bases for dismissal where jurisdictional dismissal was also without elaboration). Furthermore, the parties do not dispute the potential applicability of various jurisdictional bars of 8 U.S.C. § 1252 to this action, and in fact briefed their positions on the applicability of provisions of § 1252 to the jurisdictional determination by the court of appeals.
In this instance, the court of appeals had two possible statutory bars to its jurisdiction over the petition for review — 8 U.S.C. § 1252(a)(2)(B)(ii) and (C). However, as petitioner informed the court of appeals, § 1252(a)(2)(B)(ii) does not preclude jurisdiction in the court of appeals because the IJ did not exercise any discretion when he denied petitioner's request for adjustment of status and ordered him removed from the United States.
The IJ was determining whether to adjust petitioner's status pursuant to 8 U.S.C. § 1255(a). That statute grants immigration authorities discretion to adjust the status of a non immigrant, if three eligibility qualifications are met. The courts of appeal may review the determination of these eligibility qualifications despite § 1252(a)(2)(B)(ii), because such determination is non-discretionary. See Hernandez v. Ashcroft, 345 F.3d 824, 845 (9th Cir. 2003), accord Boykov v. Ashcroft, 383 F.3d 526, 531 (7th Cir. 2004) (recognizing that § 1255 has "both discretionary and statutory eligibility grounds" for obtaining an adjustment of status). In this instance, the IJ made his decision on the eligibility requirements. He found petitioner ineligible for an adjustment of status because petitioner was inadmissible to the United States due to 8 U.S.C. § 1182(a)(2)(C). The IJ specifically stated that he was not reaching the discretionary component of petitioner's request for adjustment of status. (See Oral Decision of IJ at 9.) Consequently, § 1252(A)(2)(B)(ii) presented no bar to consideration of petitioner's petition for review.
Because § 1252(a)(2)(B)(ii) presented no bar to jurisdiction by the court of appeals, it appears that the lack of jurisdiction was necessarily based upon § 1252(a)(2)(C). The petition for review presented a claim that arguably invoked the § 1252(a)(2)(C) bar on judicial review. Petitioner recognized this fact in his memorandum in support of his motion for stay. When confronted with such a claim, the court of appeals "necessarily consider[s] the three prerequisites for review preclusion": (1) whether the petitioner is an alien; (2) whether he was deportable; and (3) whether he had committed a crime covered in § 1182(a)(2). See Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000). In determining its jurisdiction over petitioner's petition for review, the Fifth Circuit considered these three prerequisites. See id. Because the first two components were undisputed, the court of appeals necessarily found that petitioner had committed a crime covered in § 1182(a)(2), within the meaning of § 1252(a)(2)(C). Consequently, the scope of habeas jurisdiction in this Court does not encompass petitioner's claim related to the legal validity of the final order of removal or his claim that the IJ erroneously applied immigration law or the facts of his case to immigration law. See id. In other words, the jurisdictional dismissal due to § 1252(a)(2)(C) places all of petitioner's claims, other than his due process claim, outside the scope of habeas jurisdiction.
The Court may "pretermit" the jurisdictional question when the vagueness of the jurisdictional dismissal leaves a question as to whether the court of appeals necessarily resolved a claim against the petitioner to find it lacked jurisdiction over a petition for review. See Madriz-Alvarado v. A shcroft, 383 F.3d 321, 328 n. 6 (5th Cir. 2004). In this instance, it appears clear that the Fifth Circuit found petitioner inadmissible under 8 U.S.C. § 1182(a)(2)(C) and thus "removable by reason of having committed a criminal offense covered in section 1182(a)(2)" within the meaning of 8 U.S.C. § 1252(a)(2)(C). Consequently, the Court does not pretermit the jurisdictional question to address the merits of petitioner's claims. The Court notes, furthermore, that petitioner carries the burden to show that jurisdiction is proper over his case. See Santos v. Reno, 228 F.3d 591, 594 (5th Cir. 2000). The District Court in Madriz-Alvarado properly considered the merits of the petitioner's claims because, based upon the non-specific appellate dismissal, the Court could not find that the Fifth Circuit Court of Appeals necessarily resolved his claims when it determined that it lacked jurisdiction over his petition for review. Without that requisite necessity, the appellate dismissal did not affect the scope of habeas jurisdiction at the district court level. In this case, however, petitioner has pointed to no plausible basis for the Fifth Circuit's jurisdictional dismissal of his petition for review other than § 1252(a)(2)(C).
Petitioner attempts to distinguish Santos from the case at hand, on grounds that, in Santos, the court of appeals dismissed the petition for review in an "unpublished opinion" and specifically stated that it considered petitioner's claims when it dismissed the petition for review for lack of jurisdiction. ( See Reply at 2-3.) Although Santos does indicate that it dismissed the petition for review in an unpublished opinion, the opinion never specifically sets out any text from the unpublished opinion. See 228 F.3d at 594-97. In fact, the Santos court states, without citation to the unpublished opinion, that it "necessarily considered the three prerequisites for review preclusion" and thus "determined" the very issue raised in the habeas petition. Id. at 597. Had the court of appeals specifically considered such prerequisites in its unpublished opinion, it would not have needed to state that it "necessarily considered" them — it could have specifically cited to the unpublished opinion for the fact that it considered them. Regardless of what the appellate dismissal of a petition for review states, the key is whether the court of appeals necessarily considered the issues or claims raised to determine that the court lacked jurisdiction over the petition for review. Petitioner's attempts to distinguish Santos fail.
As petitioner argues, it does not necessarily follow from the language in 8 U.S.C. § 1252(a)(2)(C) that one in petitioner's circumstances "is removable by reason of having committed a criminal offense" covered by § 1182(a)(2)(C) merely because the IJ "has reason to believe" that petitioner "is or has been an illicit trafficker" in a controlled substance. Petitioner has not been convicted or charged with any crime involving drug trafficking. He was merely arrested for drug possession after a State Magistrate found probable cause to arrest him for such possession. That arrest, furthermore, resulted in no conviction and the charge was ultimately dropped. Nevertheless, the court of appeals had the jurisdiction to determine its jurisdiction over petitioner's petition for review, and apparently did not agree with petitioner's argument. It is not for this Court to revisit the issue. Because petitioner has presented no potential basis for the dismissal of his petition for review for lack of jurisdiction other than § 1252(a)(2)(C) and because the Court knows of no other potential basis for the Fifth Circuit's jurisdictional dismissal, the Court finds that the dismissal was based upon § 1252(a)(2)(C).
With respect to petitioner's due process claim, before the Fifth Circuit will "conclude that the IIRIRA's permanent rules completely foreclose [its] jurisdiction" it "must first determine" whether the petitioner presented a "substantial constitutional claim." See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). By denying jurisdiction altogether, the court of appeals necessarily determined that petitioner's due process claim presented no substantial constitutional claim. See id. The scope of this Court's habeas jurisdiction thus does not encompass that claim either.
For all of these reasons, the Court finds that the scope of habeas jurisdiction does not encompass claims that were necessarily decided against petitioner when the court of appeals determined that it lacked jurisdiction over his petition for review. Accordingly, this Court lacks habeas jurisdiction over the instant action.
The Court makes clear that the Noorani decision was based upon the fact that, as a non-criminal alien, the petitioner could have brought his claims in a petition for review, but did not do so. This case, on the other hand, is based upon the fact that the petitioner presented his claims to the court of appeals in such a petition and that court necessarily decided the claims against him when it determined that it lacked jurisdiction over the petition. Neither case, either singularly or in conjunction, stands for the proposition that merely because the court of appeals has jurisdiction to determine its own jurisdiction that petitioner here was required to present his claims to the court of appeals in a petition for review. That issue is not before the Court.
V. PROPRIETY OF TRANSFER TO FIFTH CIRCUIT
In his reply brief, petitioner makes an alternative request that the Court transfer this action to the Fifth Circuit should the Court find it lacks jurisdiction over the claims raised herein. ( See Reply at 5.) When a court determines it lacks jurisdiction over an action, it must either dismiss the action or, in the interests of justice, transfer it to a court of proper jurisdiction. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (mentioning both options); 28 U.S.C. § 1631 (West 1994) (permitting transfers to cure want of jurisdiction); Fed.R.Civ.P. 12(h)(3) (directing the Court to dismiss actions over which it appears that it lacks jurisdiction). Section 1631 permits a transfer to the court of appeals, if that court "would have been able to exercise jurisdiction on the date that the case was filed in the district court, the district court lacked jurisdiction over the case, and the transfer is in the interest of justice." See Hajjaoui v. Ashcroft, No. 03-60165, 2004 WL 1013371, at *1 (5th Cir. May 6, 2004).The Court should decline to transfer this action to the Fifth Circuit Court of Appeals. The Fifth Circuit has already stated that it lacks jurisdiction over petitioner's petition for review. That court is thus unable to exercise jurisdiction were this Court to transfer this action there as a petition for review. Furthermore, the interests of justice do not favor transferring this case to the Fifth Circuit.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the District Court dismiss the instant petition filed pursuant to 28 U.S.C. § 2241 for lack of jurisdiction.