Romero-Cortinas v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 2001
• Docket: 00-40870
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40870 Summary Calendar

FEDERICO ROMERO-CORTINAS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas (B-99-CV-200)

May 18, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Federico Romero-Cortinas, an alien ordered to be removed from

the United States by the Immigration and Naturalization Service,

appeals the dismissal of his petition for a writ of error coram

nobis and 28 U.S.C. § 2241 writ of habeas corpus. The district

court concluded: coram nobis relief was no longer available; and

§ 2241 jurisdiction was eliminated under the permanent rules of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA).

Romero presents constitutional challenges to the proceedings

conducted by the immigration judge and the Board of Immigration

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Appeals, maintaining the proceedings lacked impartiality and

constituted an inadequate forum for consideration of his

constitutional claims. Romero also asserts that IIRIRA violates

the Constitution, primarily its prohibition against ex post facto

laws, by: (1) mandating removal of aliens who have been convicted

of aggravated felonies, even though those felonies were committed

prior to its enactment; and (2) denying him eligibility for a

waiver hearing at which time his right to family life could have

been considered. Romero buttresses these arguments by pointing to

purported violations of treaties, customary international law, and

jus cogens. Despite these contentions, he makes no assertion or

showing that his claims fall within the scope of the

constitutionally protected writ of habeas corpus, which is more

narrow than the writ made available in § 2241. See Max-George v.

Reno, 205 F.3d 194, 201-03 (5th Cir. 2000) (under 28 U.S.C. §

1252(a)(2)(C), all habeas petitions by aliens removable as

aggravated felons are to be dismissed for lack of jurisdiction

unless unlikely showing made that claims fall within protection of

constitutional writ), petition for cert. filed, (U.S. 23 Aug.

2000)(No. 00-6280). Neither of Romero’s concerns regarding

IIRIRA’s retroactive effect fall within the scope of the

constitutional writ. See Finlay v. INS, 210 F.3d 556, 557-58 (5th

Cir. 2000) (claim that ex post facto law denied petitioner

discretionary relief from removal fell outside scope of

constitutional writ because “Congress can attach new immigration

consequences to past criminal activity”). Additionally,

2 international law does not control when, as here, there is a

“controlling executive or legislative act or judicial decision”.

See Gisbert v. U.S. Atty. Gen., 988 F.2d 1437, 1447, amended by,

997 F.2d 1122 (5th Cir. 1993). By failing to make a showing that

his claim falls under the protection of the constitutional writ,

Romero has not demonstrated that the district court erred in

dismissing his habeas petition for lack of jurisdiction. See Max-

George, 205 F.3d at 202-03.

Romero also contends that the district court erred in refusing

to consider his request for a writ of error coram nobis and in

stating that Federal Rule of Civil Procedure 60(b) had abolished

such relief. Because such a writ is unavailable in federal court

to attack a state criminal judgment, he has not shown that the

district court erred in refusing to consider the requested relief.

See Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982);

Cavett v. Ellis, 578 F.2d 567, 569 n.4 (5th Cir. 1978).

Romero also maintains that the district court erred in not

transferring his case to this court pursuant to 28 U.S.C. § 1631.

Under 28 U.S.C. § 1631, a case may be transferred to another court

only if it could have been brought in that court when filed.

Because Romero filed his petition in the district court more than

30 days after his removal order became final, the district court

could not have transferred the petition to this court as a petition

for review. See Finlay, 210 F.3d at 557; 8 U.S.C. § 1252(b)(1).

AFFIRMED