Montes v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 2001
• Docket: 00-51081
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51081 Summary Calendar

JUAN MANUEL MONTES

Petitioner - Appellant

v.

JOHN ASHCROFT, U.S. Attorney General; LUIS GARCIA, District Director of the El Paso District of the Immigration Naturalization Service

Respondents - Appellees

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CV-293-DB - - - - - - - - - - May 18, 2001

Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

Juan Manuel Montes appeals the district court’s dismissal of

his 28 U.S.C. § 2241 petition for lack of jurisdiction. Montes

argues that the district court incorrectly based its dismissal on

its erroneous finding that he did not file a petition for review

from the decision of Board of Immigration Appeals (BIA).

The permanent provisions of the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA) apply because 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-51081 -2-

removal proceedings against Montes commenced after April 1, 1997.

See Max-George v. Reno, 205 F.3d 194, 197 n.3 (5th Cir.),

petition for cert. filed, (U.S. Aug. 23, 2000) (No. 00-6280).

Montes was found removable based on his conviction for armed

robbery. This court held in Max-George that the “IIRIRA’s

permanent provisions eliminate § 2241 habeas corpus jurisdiction

for those cases that fall within [8 U.S.C.] § 1252(a)(2)(C).”

Max-George, 205 F.3d at 199. Because Montes’ order of removal

falls within the provisions set forth in 8 U.S.C.

§ 1252(a)(2)(C), the district court lacked jurisdiction to

consider the instant 28 U.S.C. § 2241 petition. The error of

fact regarding whether Montes had filed a petition for review

from the BIA’s decision does not bring this case within the scope

of the habeas writ remaining under the Constitution. See

Garnica-Vasquez v. Reno, 210 F.3d 558, 560 (5th Cir. 2000).

Accordingly, the district court’s judgment of dismissal is

AFFIRMED.