Opinion
EP-00-CA-284-DB.
October 5, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court sua sponte considered the above-captioned cause. Petitioner Luis Adrian Chaparro-Mendez filed an "Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 et seq." ("Application") on September 15, 2000, and an "Amended Application for Writ of Habeas Corpus" ("Amended Application") on September 27, 2000. Buried within Petitioner's Amended Application is an unfiled "Petition for Judicial Review."
After due consideration, the Court is of the opinion that Petitioner's pleadings should be dismissed for failure of subject matter jurisdiction.
BACKGROUND
According to Petitioner's pleadings, Petitioner is a thirty-four year old native and citizen of the Republic of Mexico and a lawful permanent resident of the United States since 1970. In 1984, Petitioner was convicted of voluntary manslaughter and was paroled after serving two and one half years of a fifteen year sentence.
The facts set forth therein are scant.
In August 2000, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Petitioner, alleging that he is removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). The INS issued a "Final Administrative Removal Order" on September 14, 2000, finding Petitioner removable as charged.
DISCUSSION
No matter the merits of his underlying immigration case, Petitioner cannot proceed in this Court without demonstrating the Court's jurisdiction, and he bears the burden of doing so. See B, Inc. v. Miller Brewing Co., 663 F.2d 594, 595 [ 663 F.2d 545] (5th Cir. 1981). Petitioner claims that the Court has habeas corpus jurisdiction under 28 U.S.C. § 2241.
"As a matter of jurisdiction, courts may not review the administrative decisions of the INS unless the appellant has first exhausted `all administrative remedies.' I.N.A. 242(d), 8 U.S.C. [§] 1252(d) (1999)." Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000). After reviewing Petitioner's Application, Amended Application and exhibits thereto, and Petition for Judicial Review, the Court finds that Petitioner has failed to exhaust administrative remedies. Specifically, Petitioner has not appealed the September 13, 2000, Final Administrative Removal Order to the Board of Immigration Appeals ("BIA"). Consequently, the Court does not have subject matter jurisdiction to consider Petitioner's claims.
The Court notes that any petition for review of an order of removal to the BIA "must be filed not later than 30 days after the date of the final order of removal." 8 U.S.C.A. § 1252(b)(1) (West 1999).
Moreover, even had Petitioner done so and received an adverse ruling from the BIA, perhaps the appropriate next step would be to petition the Fifth Circuit for review, not this Court. See Toscano-Gil v. Trominski, 210 F.3d 470, 473 n. 3 (5th Cir. 2000) ("Max-George v. Reno, 205 F.3d 194, 202-03 (5th Cir. 2000), holds that, for cases involving `aggravated felons', 8 U.S.C. § 1101(a)[(43)], the IIRIRA's [(Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996))] permanent rules `channel all judicial review of final orders of removal by the INS to petitions for review filed in the courts of appeals', eliminating § 2241 habeas review."); see also.
Because Petitioner's removal proceedings apparently commenced after April 1, 1997, the "permanent rules" apply to Petitioner. See Max-George v. Reno, 205 F.3d 194, 197 n. 3 (5th Cir. 2000) (defining "permanent rules" after IIRIRA).
Accordingly, after due consideration, the Court is of the opinion that the instant Application, Amended Application and unfiled Petition for Judicial Review should be dismissed for lack of subject matter jurisdiction due to Petitioner's failure to exhaust administrative remedies.
Accordingly, IT IS HEREBY ORDERED that Petitioner Luis Adrian Chaparro-Mendez's "Application for Writ of Habeas Corpus," "Amended Application for Writ of Habeas Corpus," and "Petition for Judicial Review" are DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION.