Roach v. US Attorney General , 344 F. App'x 945 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2009
No. 08-51248 Charles R. Fulbruge III
Summary Calendar Clerk
COLIN A. ROACH
Petitioner-Appellant
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL, ET AL.
Respondents-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-459
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Colin A. Roach appeals from the denial of his petition for a writ of habeas
corpus. See 28 U.S.C. § 2241. We AFFIRM.
In an appeal such as this, we review the district court’s findings of fact for
clear error and its conclusions of law de novo. Day v. Quarterman, 566 F.3d 527,
535 (5th Cir. 2009). We apply the same standard of review to the findings and
conclusions of the magistrate judge where the magistrate judge has decided the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-51248
case under 28 U.S.C. § 636. Lockette v. Greyhound Lines, Inc., 817 F.2d 1182,
1185 (5th Cir. 1987).
On August 16, 2007, an immigration judge found Roach removable under
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act as an alien
convicted of a violation of any law relating to a controlled substance, other than
a single offense involving possession for one’s own use of 30 grams or less of
marijuana. Roach’s appeal to the Board of Immigration Appeals (BIA) was
dismissed on December 20, 2007. Since that time, Roach has been detained. See
8 U.S.C. § 1231. He has filed a series of motions to reconsider or reopen his case
with the BIA, all of which have been dismissed or denied.
On April 20, 2008, Roach filed a Section 2241 petition for a writ of habeas
corpus in district court, challenging his arrest and subsequent detention as
unconstitutional. With the consent of the parties, the case was assigned to a
United States magistrate judge for all proceedings and the entry of final
judgment. The magistrate judge found Roach’s initial arrest authorized under
8 U.S.C. § 1226(c)(1). Further, his continued detention was found to be
authorized under 8 U.S.C. § 1231 and constitutional under Zadvydas v. Davis,
533 U.S. 678, 701 (2001). Specifically, the magistrate judge found that by his
repeated filings with the BIA, Roach prevented U.S. Immigration and Customs
Enforcement from obtaining Roach’s travel documents for removal. This
interference extended his removal period and detention under 8 U.S.C. §
1231(a)(1)(C), which provides that the removal period and detention shall be
extended beyond ninety days if the alien “conspires or acts to prevent the alien’s
removal subject to an order of removal.”
With liberal construction, Roach’s pro se appeal challenges the
constitutionality of his continued detention. We conclude that Roach failed to
meet his initial burden of proof in showing there is no significant likelihood of
removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701; see
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No. 08-51248
also Andrade v. Gonzales, 459 F.3d 538, 543-44 (5th Cir. 2006). Further, the
magistrate judge did not err in finding that Roach’s repeated filings with the
BIA constituted acts to prevent his removal, thus extending his removal period
under 8 U.S.C. § 1231(a)(1)(C).
Accordingly, we AFFIRM.
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