Momoh v. Strapp ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11321
TIJANI AHMAD MOMOH,
Petitioner-Appellant,
versus
ARTHUR STRAPP, Immigration & Naturalization Service District
Director,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 3:98-CV-812-G
March 20, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges, and JACK*, District
Judge.
PER CURIAM:**
Tijani Ahmad Momoh sought habeas review of his deportation
order and custody determination, and the district court dismissed
his petition for want of jurisdiction. We AFFIRM.
I.
*
District Judge of the Southern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
Momoh is a citizen of Nigeria who first entered the United
States as a visitor on August 23, 1979. He was ordered to leave in
1979 because he stayed longer than authorized, but he remained in
the United States. He was convicted of theft in state court in
Dallas, Texas, on September 4, 1981 and September 10, 1981. He was
deported in December 1981, but he reentered the United States later
that year from Mexico.1
The INS commenced deportation proceedings against Momoh on
March 11, 1997. On June 6, 1997, the immigration judge ordered
Momoh deported for entering the United States without inspection
and for returning without permission after deportation. The
immigration judge set a bond hearing and set Momoh’s bond at
$35,000. Momoh’s requests for redetermination of his bond were
denied because of Momoh’s criminal history and his statement that
he wanted to remain in the United States.
Momoh appealed to the Board of Immigration Appeals ("BIA"),
which affirmed the immigration judge's order on March 19, 1998.2
1
On reentering the United States, Momoh continued his criminal
activity. He was convicted of theft on May 29, 1985. On October
1, 1992, he was convicted of presenting a fraudulent insurance
claim to Nationwide Insurance Company in Georgia.
2
While the appeal to the BIA was pending, Momoh moved the
Board to reopen the deportation proceedings for purposes of
adjudicating an application for adjustment of status. Because the
appeal was pending, the BIA treated the motion as a motion to
remand. On March 19, 1998, the BIA denied this motion because
Momoh did not properly submit a completed adjustment application or
visa petition filed on his behalf. The BIA also affirmed the
immigration judge’s deportation order and denied the motion to
reopen the case and remand for consideration of the adjustment of
2
Momoh filed a petition for writ of habeas corpus on March 31, 1998,
challenging his custody status and order of deportation. He
alleged a variety of grounds for habeas relief.3
The magistrate judge recommended dismissal for lack of
jurisdiction because the Immigration and Nationality Act ("INA"),
§ 242(g),4 barred habeas jurisdiction over Momoh’s petition
challenging his order of deportation. The magistrate judge also
determined that Momoh failed to demonstrate a constitutional
violation supporting habeas relief. Momoh filed objections to the
magistrate judge’s recommendation, arguing that the Suspension
Clause prevented the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA") from removing all access to
status.
After Momoh filed his habeas petition, the BIA reopened
Momoh’s motion seeking adjustment of his status on July 21, 1998,
to examine correspondence Momoh sent to the BIA that it did not
consider in its initial denial of his motion. The BIA remanded
Momoh’s request for redetermination of his bond to the immigration
judge because the immigration judge’s decision on bond was not in
the record. On remand, the immigration judge ordered that Momoh be
held without bond. This order is still pending before the BIA, and
it is not a subject of Momoh’s habeas petition or this appeal. The
BIA denied the motion because Momoh did not demonstrate that he had
an approved visa petition or visa available to him, and the BIA
dismissed the appeal. Momoh did not appeal that decision.
3
Momoh asserted that mandatory detention was unconstitutional
as applied to him as a lawful resident. He also claimed that the
immigration judge lacked jurisdiction over his deportation
proceeding as a different immigration judge was initially scheduled
to preside over the case, that he was denied access to a transcript
of the deportation hearing, that the immigration judge refused to
consider Momoh’s health condition, and that his bond was excessive.
4
See 8 U.S.C. § 1252(g).
3
habeas review and that the court had jurisdiction over his
petition. On November 5, 1998, the district court issued an order
adopting the magistrate judge’s recommendation.5 Momoh timely
filed a notice of appeal.
II.
We review de novo the district court's dismissal of a habeas
corpus petition.6
Momoh's petition is governed by the transitional rules of the
IIRIRA. The IIRIRA's transitional rules apply to persons whose
deportation proceedings began before April 1, 1997, and ended more
than 30 days after September 30, 1996.7 Since the INS commenced
5
Momoh filed "supporting objections" to the magistrate judge's
recommendations on November 9, 1998, and he filed a notice of
appeal to this court November 10, 1998. Objections to a magistrate
judge's recommendations filed within ten days of the entry of
judgment by the district court may be construed as a motion to
reconsider the judgment. See United States v. Gallardo, 915 F.2d
149, 150 n.2 (5th Cir. 1990). A motion to reconsider arises under
Fed. R. Civ. P. 59 if filed within ten days of the entry of
judgment, without regard to the label given the motion. See
Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). A
motion to alter or amend the judgment under Rule 59 tolls the time
for filing a notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(iv).
The record does not show that the district court took any action
with respect to the "supporting objections." A Rule 59(e) motion
may suspend the notice of appeal until the entry of an order
disposing of the motion. See Burt v. Ware, 14 F.3d 256, 260 (5th
Cir. 1994). We do not construe Momoh's "supporting objections" as
a motion under Rule 59(e) because the objections do not seek to
alter or amend the judgment.
6
Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th
Cir. 1993).
7
Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997).
4
deportation proceedings against Momoh March 11, 1997, and the BIA
disposed of his appeal March 19, 1998, his case arises under the
transitional rules. One of IIRIRA's permanent rules, INA §
242(g),8 applies to cases brought under the transitional rules of
the IIRIRA.9
The district court dismissed Momoh's petition because it
determined that it lacked jurisdiction under § 1252(g). Since
then, the Supreme Court has decided Reno v. American-Arab Anti-
Discrimination Commission,10 in which the Court interpreted §
1252(g) to bar jurisdiction over the “three discrete actions”
specified in the statute: the commencement of proceedings, the
adjudication of cases, and the execution of removal orders.11 The
government argues that the district court lacked jurisdiction over
Momoh’s habeas petition because jurisdiction would interfere with
the execution of a deportation order. However, Momoh’s habeas
petition seeks to attack his deportation proceeding rather than the
8
INA § 242(g) provides that “no court shall have jurisdiction
to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter.” 8 U.S.C. § 1252(g).
9
See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 303 (5th
Cir. 1999).
10
See 119 S. Ct. 936 (1999).
11
See American-Arab, 119 S. Ct. at 943.
5
execution of the order, so § 1252(g) does not deprive this court of
jurisdiction.
Although the district court erred, we find that the court
lacked habeas jurisdiction because direct review was available to
Momoh under the IIRIRA's transitional rules.12
The IIRIRA's transitional rule § 309(c)(4)(G) precludes direct
appeals of deportation orders for aliens convicted of specified
offenses.13 Momoh was ordered deported for violation of INA §
241(a)(1)(A) and (B),14 for reentering the United States after
deportation without consent and for entry without inspection.15
These are not among the offenses for which the IIRIRA's
transitional rule § 309(c)(4)(G) precludes a direct appeal.16 Momoh
12
For the first time on appeal, the government argues that the
district court lacked habeas jurisdiction because Momoh is not a
criminal alien. We may consider this challenge to the district
court's jurisdiction for the first time on appeal. See Giles v.
NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999).
13
See Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir.
1998).
14
See 8 U.S.C. § 1227(a)(1)(A) and (B).
15
The INS also sought to deport Momoh for having committed two
crimes involving moral turpitude, which is a basis for deportation
under INA § 241(a)(2)(A)(ii). Section 309(c)(4)(G) of the IIRIRA's
transitional rules specifies that ground for deportation as one for
which there may be no appeal. However, the immigration judge found
that the record supported a finding that Momoh had been convicted
of only one crime involving moral turpitude.
16
Under IIRIRA § 309(c)(4)(G),
there shall be no appeal permitted in the case of an alien who
is inadmissible or deportable by reason of having committed a
criminal offense covered in section 212(a)(2) [8 U.S.C. §
1182(a)(2)] or section 241(a)(2)(A)(iii), (B), (C), or (D) [8
6
could have appealed his deportation order, although he failed to do
so.
Since Momoh could have sought direct review, he may not obtain
habeas review. In Requena-Rodriguez v. Pasquarell,17 we held that
Congress did not strip the courts of habeas jurisdiction under the
transitional rules of the IIRIRA in cases to which § 1252(g) does
not apply.18 Section 1252(g) does not apply to Momoh's case.
However, there is no habeas jurisdiction under the transitional
rules when direct review is available.19 The district court did not
have habeas jurisdiction under 28 U.S.C. § 2241 because direct
review was available to Momoh.
Momoh's Suspension Clause challenge also fails because he
could have sought direct review. Although the transitional rules
deprive the courts of habeas jurisdiction over Momoh's case, those
U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or (D)] of the
Immigration and Nationality Act (as in effect as of the date
of the enactment of this Act), or any offense covered by
section 241(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] of
such Act (as in effect on such date) for which both predicate
offenses are, without regard to their date of commission,
otherwise covered by section 241(a)(2)(A)(i) [8 U.S.C. §
1227(a)(2)(A)(i)] of such Act (as so in effect).
17
See 190 F.3d 299 (5th Cir. 1999).
18
See 190 F.3d at 306.
19
See Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir.
1999)(per curiam).
7
rules offer him judicial review that fulfills the guarantee of the
Suspension Clause.20
III.
The district court lacked jurisdiction over Momoh’s habeas
petition because he is not a criminal alien and direct appeal was
available to him. Under the transitional rules of the IIRIRA, he
could not seek habeas review of his deportation. We AFFIRM the
dismissal of his habeas petition. All outstanding motions are
DENIED.
AFFIRMED.
20
See Richardson v. Reno, 180 F.3d 1311, 1315-16 (11th Cir.
1999)(interpreting IIRIRA's permanent rules).
8