Osewe v. Fasano

96 F. App'x 491

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2004
• Docket: No. 03-56051
• Status: Published

Opinion

MEMORANDUM

**

Samwel Okoth Osewe, a native and citizen of Kenya, appeals pro se the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, we review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) and we affirm.

Osewe contends that he is eligible for a waiver of removal under the former Immigration and Naturalization Act § 212(c). However, because the AEDPA abolished the INA § 212(c) waiver before removal proceedings were initiated against Osewe, he is not eligible for relief under that section. See INS v. St. Cyr, 533 U.S. 289, 296-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

Osewe argues that the decision to exercise his right to a jury trial classifies him as an alien who remains eligible for § 212(c) relief despite the AEDPA. We are unpersuaded. See id. at 321-326 (holding that aliens who entered plea bargains in reliance on the availability of § 212(c) relief from removal remain eligible for that relief although § 212 had been abolished).

Finally, the district court did not err in dismissing Osewe’s attacks on his state court conviction. See Contreras v. Schiltgen, 122 F.3d 30, 31-32 (9th Cir.1997) (stating that a petitioner may not collaterally attack his state court conviction in a habeas proceeding against the INS).

Osewe’s motion to supplement exhibits on motion for reconsideration is denied as unnecessary.

AFFIRMED.

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.