Joseph v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 2004
• Docket: 03-30939
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS June 30, 2004 FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-30939 Summary Calendar

IVAN THEOPHILUS JOSEPH,

Petitioner-Appellant,

versus

JOHN ASHCROFT; JOHN W. ZIGLAR; CHRISTINE G. DAVIS; EDWARD J. MCELROY; BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF JUSTICE,

Respondents-Appellees.

Appeal from the United States District Court for the Western District of Louisiana (02-CV-1006)

Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges

PER CURIAM:*

Ivan Joseph appeals, pro se, the denial of his 28 U.S.C.

§ 2241 habeas petition challenging his deportation order. (His

motions for appointment of counsel and release pending appeal are

DENIED.)

Joseph claims he was denied his right to counsel during his

deportation proceeding and, as a result, was deprived of his rights

to apply for an adjustment of status under § 245(a) of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Immigration and Nationality Act (INA) and for a discretionary

waiver under INA § 212(c). Joseph filed a motion in the Board of

Immigration Appeals (BIA) to reopen/reconsider his deportation

proceeding in order to present these claims. The motion was denied

as untimely. Because Joseph does not contest that timeliness

ruling, the issue is waived. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).

Joseph also claims he was eligible to apply for, and was

entitled to, a discretionary waiver of removal under INA § 212(c).

Joseph is correct that § 304(b) of the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA) and § 404(d) of the

Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply

to his deportation proceeding because his proceeding commenced

before their effective dates. See INS v. St. Cyr, 533 U.S. 289,

318 (2001); 8 C.F.R. § 212.3(g). Contrary to Joseph’s contentions,

however, under the law in effect prior to the IIRIRA and AEDPA, he

was not entitled to § 212(c) relief. The term “aggravated felony”

was not defined in the INA until after Joseph’s September 1988

conviction, when Congress passed the Anti-Drug Abuse Act (ADAA) in

November 1988. Nevertheless, application of the ADAA to his

conviction has no impermissible retroactive effect. See

Scheidemann v. INS, 83 F.3d 1517, 1521 & n.5 (3d Cir. 1996)

(denying relief on this claim and listing cases from six other

circuits rejecting it).

2 Furthermore, Joseph’s deportation proceeding was not rendered

fundamentally unfair by the INS’ delay in proceeding with it.

“Unlike a criminal defendant, an alien in deportation proceedings

has no constitutional right to a speedy proceeding.” Alfarache v.

Cravener, 203 F.3d 381, 383 (5th Cir. 2000). Moreover, to the

extent Joseph contends that eligibility for § 212(c) relief is a

liberty or property interest, warranting due process protection,

his argument is foreclosed. See United States v. Lopez-Ortiz, 313

F.3d 225, 230 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003).

Because Joseph was released from criminal custody after 8

October, 1998, INA § 236(c) (directing the Attorney General to

assume custody over certain categories of criminal or terrorist

aliens) is applicable to him; and his argument that the district

court erred in determining the law governing his custody status is

without merit. See Matter of Rojas, 23 I & N Dec. 117 (BIA 2001).

For the first time on appeal, Joseph asserts: he is not

deportable under INA § 241(a)(2)(C); he has acquired citizenship

through his wife and son; and he is entitled to an INA § 212(h)

waiver of deportability. Because Joseph did not assert these

claims in his § 2241 petition, we decline to consider them. See

Flores-Garza v. INS, 328 F.3d 797, 804 n.7 (5th Cir. 2003).

AFFIRMED; MOTIONS DENIED