Unpublished Disposition, 855 F.2d 862 (9th Cir. 1985)

MEMORANDUM^** 

Feliz Mergarejo-Gascon (petitioner), a native of Cuba, was paroled into the United States in 1966. This parole was revoked on January 16, 1985 because petitioner had been convicted of crimes involving moral turpitude, convicted of possession of narcotics drugs, convicted of two or more crimes with an aggregate sentence of five years or more, and he did not have a valid unexpired visa. The Immigration and Naturalization Service (INS) brought exclusion proceedings against petitioner.

An Immigration Judge (IJ) held petitioner to be excludable, denied his motion to terminate the proceedings which would have enabled him to apply for adjustment of status under the Cuban Refugee Adjustment Act of 1966, and denied his application for asylum and withholding of deportation. The Board of Immigration Appeals (BIA) affirmed the IJ's decision and dismissed petitioner's appeal. He filed a petition for review in this court.¹ 

The petition for review is dismissed. This court lacks jurisdiction to review the BIA's decision excluding an alien from this country. An order of exclusion is reviewed only by habeas corpus proceedings in the district court. 8 U.S.C. § 1105a(b); Landon v. Plasencia, 459 U.S. 21, 26 (1982); Castillo-Magellon v. INS, 729 F.2d 1227, 1228 (9th Cir. 1984); Patel v. Landon, 739 F.2d 1455, 1456 n. 1 (9th Cir. 1984).

Although Gascon is not specifically challenging the exclusion order, in this court he must challenge the BIA's denial of relief in exclusion proceedings in the district court. See Castillo-Magallon, 729 F.2d at 1229 (even if the IJ erred in refusing to consider claim for relief in exclusion proceedings, review is available only in habeas corpus proceeding); cf. Garcia v. Smith, 674 F.2d 838 (11th Cir. 1982) (district court has jurisdiction to hear claims relating to denial of asylum).

DISMISSED.