Jose Villatoro-Avila v. ICE , 670 F. App'x 346 ( 2016 )

Case: 15-40512 Document: 00513761375 Page: 1 Date Filed: 11/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40512 FILED
Summary Calendar November 15, 2016
Lyle W. Cayce
Clerk
JOSE MARIA VILLATORO-AVILA,
Petitioner-Appellant
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CV-397
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
In 1999, following his conviction for an aggravated felony, Petitioner-
Appellant Jose Maria Villatoro-Avila was ordered removed to El Salvador
pursuant to the Immigration and Nationality Act. Villatoro-Avila did not
appeal the removal order to the Board of Immigration Appeals (BIA). Fourteen
years later, he filed a 28 U.S.C. § 2241 petition collaterally challenging his 1999
removal proceedings on grounds of ineffective assistance of counsel and denial
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40512 Document: 00513761375 Page: 2 Date Filed: 11/15/2016
No. 15-40512
of a fair trial. Citing the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, the district court dismissed the petition for want of jurisdiction, and
Villatoro-Avila appealed. Reviewing the district court’s ruling de novo, we
affirm. See Merlan v. Holder, 667 F.3d 538, 539 (5th Cir. 2011); FED. R. CIV. P.
12(b)(1).
The REAL ID Act immediately and retroactively “divested federal courts
of jurisdiction over § 2241 petitions attacking removal orders[.]” Rosales v.
Bureau of Immigration & Customs Enf’t, 426 F.3d 733, 736 (5th Cir. 2005); see
generally 8 U.S.C. § 1252(a)(2). Rather, the “sole and exclusive means” of
seeking judicial review of a removal order is through a petition for review
directed to the appropriate court of appeals. Ramirez-Molina v. Ziglar, 436
F.3d 508, 511 (5th Cir. 2006); § 1252(a)(5). 1 Accordingly, the district court
properly dismissed Villatoro-Avila’s § 2241 petition for lack of jurisdiction. See
Rosales, 426 F.3d at 736.
Villatoro-Avila also contends that the district court erred by dismissing
his § 2241 petition without considering his timely objections to the magistrate
judge’s report and recommendation. He fails, however, to show that the
district court’s omission prejudiced him. See McGill v. Goff, 17 F.3d 729, 731-
32 (5th Cir. 1994), overruled on unrelated grounds, Kansa Reins. Co., Ltd. v.
Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1373-74 (5th Cir. 1994);
Rodriguez v. Pitzer, 76 F. App’x 519, 520 (5th Cir. 2003). Accordingly, any error
by the district court in failing to consider Villatoro-Avila’s objections prior to
dismissing his § 2241 petition was harmless. See McGill, 17 F.3d at 732.
The judgment of the district court is AFFIRMED.
1The sole exception to the prohibition against review of removal orders under § 2241,
pertaining to aliens seeking asylum upon arrival at a United States port of entry, does not
apply in this case. See § 1252(a)(2)(A); 8 U.S.C. § 1225(b)(1).
2