Ivan Boz, Petitioner-appellant, v. United States of America, Respondent-appellee, 248 F.3d 1299 (11th Cir. 2001)

The Court vacates its opinion in 228 F.3d 1290 (11th Cir. 2000) and substitutes this opinion in its place.

Ivan Boz, an alien, filed a habeas corpus petition in which he claimed that his continued and indefinite detention after a final removal order violated his due process rights. The district court held that it lacked jurisdiction to consider Boz's petition. Because Boz has not exhausted all of the available administrative remedies, we affirm the dismissal of his petition.

Boz, a Bahamian native, entered the United States without inspection in 1983. Boz was convicted in Florida state court in 1995 and again in 1997 of various car theft offenses; the 1997 convictions resulted in a 120-day prison sentence. After Boz served this sentence, the INS took him into custody and began deportation proceedings against him because he had been convicted of a crime involving moral turpitude. See 8 U.S.C. 1227(a) (2) (A) (i). The Immigration Judge ordered Boz removed from the country, and the Board of Immigration Appeals affirmed that order on April 27, 1998.

Boz has remained in custody since some time in 1997 and has been awaiting his removal from the United States since April 1998. In June 1999, more than a year after his removal order had become final, Boz filed a pro se petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. 2241. In his petition, Boz challenged not the order to remove him from the United States, but rather his indefinite, continued incarceration in the United States. The district court dismissed Boz's petition for lack of subject matter jurisdiction, and Boz appeals.

The district court determined that 8 U.S.C. 1252(g), which limits judicial review of the removal of aliens, foreclosed habeas relief in this case. We affirm the district court's determination that it lacked jurisdiction to hear Boz's appeal, but for a different reason. Consequently, we do not address whether INA 242(b) (9), 28 U.S.C. 1252(b) (9) removes the district court's jurisdiction to hear Boz's appeal.

The district court did not have jurisdiction to hear Boz's petition because Boz has not exhausted the administrative remedies available to him. See Gonzales v. United States, 959 F.2d 211, 212 (11th Cir. 1992) ("Exhaustion of administrative remedies is jurisdictional."). "The general rule is that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued." Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir. 1989). However, a petitioner need not exhaust his administrative remedies "where the administrative remedy will not provide relief commensurate with the claim." Id.

The record before us indicates that Boz has not exhausted the administrative remedies available to him and that those remedies may provide the relief he seeks. Once an alien has been ordered removed, the INS has ninety days in which to detain the alien and remove him. See 8 U.S.C. 1231. This initial ninety days is known as the "removal period." The Attorney General has the authority to detain an alien beyond the ninety-day removal period for a number of reasons, including if the alien has been convicted of a crime of moral turpitude. See 8 U.S.C. 1231(a) (6), 8 U.S.C. 1227(a) (2). Accordingly, because Boz had been convicted of a crime of moral turpitude, the Attorney General had the authority to detain him beyond the removal period.

At the time Boz filed his petition, the INS had established regulations for the review of an alien's detention beyond the removal period. See 8 C.F.R. 236.1(d), 241.4 (1999). In a "Memorandum for Regional Directors" from INS Executive Associate Commissioner Michael A. Pearson concerning "Detention Procedures for Aliens Whose Immediate Repatriation Is Not Possible or Practicable," February 3, 1999 ("Pearson Memorandum"), the INS detailed its procedures under these regulations.¹  Upon the expiration of the ninety-day removal period, the INS conducts an automatic review of the detainee's status. See id. A detainee may be released upon a determination that he "is not a threat to the community and is likely to comply with the removal order." Id. Thereafter, the INS conducts an automatic review of the status every six months. See id. Additionally, at any time an alien may request in writing that he be released, and the District Director must "review the status of [the] alien to determine whether there has been a change in circumstances that would support a release decision." Id. The detainee may appeal the District Director's decision to the Board of Immigration Appeals.²  See id.

At the time that he filed his habeas petition, Boz had not begun the administrative review process. Furthermore, after the INS agreed to release Boz if he posted a $5,000 bond, Boz did not appeal the bond requirement to the BIA, nor did he request subsequent review of his detention after he was unable to make bond. Because at the time he filed his petition, Boz had not exhausted the administrative remedies available to him, the district court lacked jurisdiction to hear his petition.

AFFIRMED.