Osewe v. Fasano

96 F. App'x 491

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.

Footnotes

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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.