Reyes-Gomez v. Gonzales , 163 F. App'x 293 ( 2006 )


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  •                                                       United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    FIFTH CIRCUIT                    January 13, 2006
    Charles R. Fulbruge III
    Clerk
    No. 03-30981
    Summary Calendar
    GREGORION RAFAEL REYES-GOMEZ,
    Petitioner-Appellant,
    versus
    ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL; JAMES W. ZIGLAR;
    EDWARD J. McELROY; DONALD A. YOUNG; CHRISTINE G. DAVIS; UNITED
    STATES DEPARTMENT OF JUSTICE; BUREAU OF IMMIGRATION AND CUSTOMS
    ENFORCEMENT
    Respondents-Appellees.
    Appeal from the United States District Court
    for the Western District of Louisiana
    (2:02-CV-843)
    Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Gregorian Rafael Reyes-Gomez appeals the denial of his habeas
    petition, pursuant to 28 U.S.C. § 2241.     As discussed infra, his
    appeal is treated as a petition for review of the underlying order
    of removal.
    Reyes-Gomez, a native and citizen of the Dominican Republic,
    entered the United States as a lawful permanent resident on 13 June
    *
    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    this opinion should not be published and is not precedent except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.
    1970.   On or about 6 June 1995, he was convicted in New York of
    criminal possession of a weapon in the third degree and was
    sentenced to one year’s imprisonment.         On 19 January 1996, the
    Immigration and Naturalization Service issued an order to show
    cause, charging him with deportability based on his conviction.
    On 14 July 1997, after pleading guilty to a federal charge,
    Reyes-Gomez was sentenced, inter alia, to 120-months imprisonment
    (later reduced to 60 months) for conspiracy to possess with intent
    to distribute in excess of 50 grams of cocaine base and cocaine.
    Post-arrest, he began cooperating with federal law enforcement
    officials, providing testimony that led to the conviction of other
    drug dealers.
    On or about 26 April 2001, venue of Reyes-Gomez’s deportation
    proceedings was transferred from New York to Oakdale, Louisiana,
    where Reyes-Gomez was detained on his federal conviction.             On 10
    May 2001, an additional charge of deportability was filed against
    him for having been convicted of an aggravated felony.
    Reyes-Gomez applied for asylum and withholding of removal and
    for relief   under    the   Convention   Against   Torture   (CAT).     The
    Immigration Judge (IJ) denied this application and ordered his
    removal.   Reyes-Gomez’s appeal, through counsel, to the Board of
    Immigration Appeals (BIA) was dismissed. Proceeding pro se, Reyes-
    Gomez filed a timely petition for review of the BIA’s decision in
    the Second Circuit.    The petition was transferred to this court on
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    28 January 2005 and was dismissed for lack of jurisdiction on 28
    April 2005.
    In April 2002, while his petition was pending in the Second
    Circuit, Reyes-Gomez filed a habeas petition, pursuant to 28 U.S.C.
    § 2241, and a motion for a stay of deportation, again proceeding
    pro se, in the United States District Court for the Eastern
    District of New York.    This habeas petition was transferred to the
    Western District of Louisiana, where, after Reyes-Gomez obtained
    counsel, it was dismissed with prejudice.       Reyes-Gonzales filed a
    timely notice of appeal.      On 6 June 2005, this court granted his
    motion for stay of deportation pending appeal.
    Despite § 106 of the REAL ID Act, 8 U.S.C. § 1252, which
    divests federal courts of jurisdiction over § 2241 petitions
    attacking removal orders, we have jurisdiction to review Reyes-
    Gomez’s challenge.      Rosales v. Bureau of Immigration & Customs
    Enforcement, 
    426 F.3d 733
    , 735-36 (5th Cir. 2005), petition for
    cert. filed, (U.S. 24 Oct. 2005) (No. 05-7335) (“[H]abeas petitions
    ... that were already on appeal as of the REAL ID Act’s effective
    date [of 11 May    2005] ... are properly converted into petitions
    for   review”.).   Further,    although   “8   U.S.C.   §   1252(b)(2)(C)
    generally prohibits judicial review of removal orders issued on the
    basis of an alien’s commission of an aggravated felony”, the REAL
    ID Act provides that none of its jurisdiction-stripping provisions
    “‘shall be construed as precluding review of constitutional claims
    3
    or questions of law raised upon a petition for review filed with an
    appropriate      court    of     appeals’”.       
    Id. (quoting 8
        U.S.C.   §
    1252(b)(2)(D) (2005)).
    Because Reyes-Gomez raises multiple constitutional issues, we
    have jurisdiction, pursuant to § 1252(b)(2)(D), to review them.
    
    Id. We review
    constitutional challenges de novo.                      Soadjede v.
    Ashcroft, 
    324 F.3d 830
    , 831 (5th Cir. 2003).
    First, Reyes-Gomez claims that, if removed to the Dominican
    Republic, he is likely to be injured or killed; and that this would
    violate his right to substantive due process under the Fifth
    Amendment.       In support, he relies on the state-created danger
    doctrine, which has never explicitly been adopted by this court.
    Scanlan v. Tex. A&M Univ., 
    343 F.3d 533
    , 537 (5th Cir. 2003).
    Under this doctrine, due process is violated when state actors: (1)
    “use[] their authority to create a dangerous environment for the
    plaintiff”; and (2) “act[] with deliberate indifference to the
    plight of the plaintiff”.                
    Id. at 537-38
    (setting forth the
    elements    of   the     cause    of   action     in    analyzing   a    pleading’s
    constitutional claim for relief, pursuant to 42 U.S.C. § 1983).
    Because    Reyes-Gomez      did    not    raise   this    state-created      danger
    challenge in district court, we will not review it here.                   Martinez
    v. Tex. Dep’t of Criminal Justice, 
    300 F.3d 567
    , 574 (5th Cir.
    2002) (refusing to disturb this court’s “long established course of
    4
    refusing, absent extraordinary circumstances, to entertain legal
    issues raised for the first time on appeal”).
    Second, Reyes-Gomez claims that his removal to the Dominican
    Republic would constitute cruel and unusual punishment in violation
    of the Eighth Amendment.    This claim is without merit.       Cortez v.
    INS, 
    395 F.2d 965
    , 967 (5th Cir. 1968) (holding that Eighth
    Amendment protections against cruel and unusual punishment do not
    apply to deportation proceedings).
    Reyes-Gomez contends that Cortez cannot stand in the light of
    INS v. St. Cyr, 
    533 U.S. 289
    (2001).         That decision, however, did
    not overrule Cortez.     
    Id. at 324
    (holding that “the presumption
    against retroactivity applies far beyond the confines of the
    criminal law[, and the] ... mere statement that deportation is not
    punishment for past crimes” did not preclude its considering “an
    alien's   reasonable   reliance   on   the   continued   availability   of
    discretionary relief”).     Further, post-St. Cyr, numerous courts
    have continued to hold that the Eighth Amendment does not apply to
    deportation proceedings. See e.g., Elia v. Gonzales, 
    418 F.3d 667
    ,
    675 (6th Cir. 2005) (“[T]he Eighth Amendment is inapplicable to
    deportation proceedings because, as the Supreme Court has held,
    deportation does not constitute punishment”.); Cadet v. Bulger, 
    377 F.3d 1173
    , 1196 (11th Cir. 2004) (“Because immigration proceedings
    are not criminal and do not constitute punishment, [Petitioner’s]
    5
    argument that his removal ... will violate the Eighth Amendment
    lacks merit.”).
    Third, Reyes-Gomez claims he received ineffective assistance
    of counsel in violation of the Fifth Amendment.                    (His Sixth
    Amendment    right   to   effective        assistance    of   counsel   is   not
    implicated because the challenged removal proceeding was civil, not
    criminal.)     To prevail under this claim, he must show:                    (1)
    deficient performance; and (2) substantial prejudice, resulting
    from the ineffective representation. Miranda-Lores v. INS, 
    17 F.3d 84
    , 85 (5th Cir. 1994).
    Although Reyes-Gomez has met the first prong by showing
    deficient performance, he has not shown the second — resulting
    prejudice.     To show prejudice, he must establish “there is a
    reasonable    probability   that,     but    for   counsel’s    unprofessional
    error[], the result of the proceeding would have been different”.
    United States v. Williamson, 
    183 F.3d 458
    , 463 (5th Cir. 1999)
    (internal citation and quotation marks omitted) (alteration in
    original).    Reyes-Gomez would have been subject to deportation,
    however, even with effective representation. Therefore, this claim
    also fails.
    In addition to these constitutional challenges, Reyes-Gomez
    claims the IJ applied the wrong standard when determining whether
    he was entitled to relief under the CAT.                “We have authority to
    review only an order of the BIA, not the IJ, unless the IJ’s
    6
    decision has some impact on the BIA’s decision.”    Mikhael v. INS,
    
    115 F.3d 299
    , 302 (5th Cir. 1997). The BIA dismissed Reyes-Gomez’s
    appeal because it agreed with the IJ’s decision, “find[ing] no
    reason to disturb [its] findings”.    Therefore, we review the IJ’s
    decision.   See 
    id. The IJ
    held Reyes-Gomez ineligible for withholding of removal
    under the CAT because of his five-year sentence for a conviction of
    an aggravated felony, and that he failed to meet his burden of
    proof with regard to deferral of removal.    Reyes-Gomez challenges
    the latter finding, claiming the IJ applied the wrong standard by
    requiring a specific nexus between the harm Reyes-Gomez feared and
    a government official in the Dominican Republic.        Reyes-Gomez
    concedes, however, that to obtain deferral of removal under the
    CAT, he must prove his torture would be “inflicted by or at the
    instigation of or with the consent or acquiescence of a public
    official or other person acting in an official capacity”.    Efe v.
    Aschcroft, 
    293 F.3d 899
    , 907 n.8 (5th Cir. 2002) (quoting 8 C.F.R.
    § 208.18(a)(1)).   Therefore, his true claim is that the IJ erred in
    finding that he failed to meet his burden of proof in this respect.
    Such claim is based on the IJ’s factual finding; therefore, we lack
    jurisdiction.   See 
    Rosales, 426 F.3d at 736
    ; see also Hamid v.
    Gonzales, 
    417 F.3d 642
    , 647 (7th Cir. 2005) (holding it lacked
    jurisdiction to review an aggravated felon’s CAT claim where it did
    not concern a constitutional issue or question of law).
    7
    Finally, Reyes-Gomez’s request to stay this proceeding pending
    the decision of similar issues in his separate petition for review
    to the Second Circuit is moot.     As 
    discussed supra
    , that petition
    was   transferred   to   this   court   and   dismissed   for   lack   of
    jurisdiction.
    DENIED
    8