Wasihun v. Rodgers

Full title: Alganesh WASIHUN, Petitioner-Appellant, v. Richard K. RODGERS, Director…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 25, 2000

230 F.3d 1369 (9th Cir. 2000)

Opinion

230 F.3d 1369 (9th Cir. 2000) Alganesh WASIHUN, Petitioner-Appellant, v. Richard K. RODGERS, Director, Immigration & Naturalization Service, Respondent-Appellee. No. 98-56267. United States Court of Appeals, Ninth Circuit August 25, 2000

Submitted March 16, 2000. ²

2 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

D.C. No. CV-97-08787-WDK

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Central District of California, William D. Keller, District Judge, Presiding.

Before KOZINSKI, KLEINFELD, and MCKEOWN, Circuit Judges.

MEMORANDUM ¹

1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Wasihun appeals the district court's order dismissing her habeas petition for want of jurisdiction. After the immigration judge denied Wasihun's asylum petition, she failed to timely appeal to the BIA. She filed motions to reopen and they were denied. She petitioned this court to review the denial of her motion to reopen. However, this petition was also late. At the same time she sought a writ of habeas corpus in the district court alleging ineffective assistance of counsel. She claims that her counsel was ineffective because she failed to file a timely notice of appeal. The district court dismissed stating it lacked jurisdiction to hear the habeas petition. The only issue on this appeal is whether the district court had jurisdiction pursuant to 28 U.S.C.§ 2241, the federal habeas corpus statute.

The government argues that 8 U.S.C. § 1252 divested the district court of its jurisdiction to hear Wasihun's petition for a writ of habeas corpus. After this case was decided by the district court, this court ruled that 8 U.S.C.§ 1252 did not divest district courts of habeas jurisdiction pursuant to 28 U.S.C. § 2241. ³ We thus reverse the district court's dismissal because habeas jurisdiction was not repealed by 8 U.S.C. § 1252.

3 Magana-Pizano v. INS, 200 F.3d 603, 609 (9th Cir.1999).

REVERSED.