Guillermo Perez, Petitioner-appellant, v. Janet Reno, U.S. Attorney General; Richard v. Cravener, District Director of the Houston District of the Ins, Respondents-appellees, 227 F.3d 294 (5th Cir. 2000)

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US Court of Appeals for the Fifth Circuit - 227 F.3d 294 (5th Cir. 2000)

September 25, 2000

Salvador Colon, Houston, TX, for Petitioner-Appellant.

William Campbell Erb, Jr., Margaret J Perry, U.S. Department of Justice, Immigration Litigation, Civil Division, Washington, DC, for Respondents-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, JOLLY and JONES, Circuit Judges.


Guillermo Perez has appealed the district court's judgment dismissing his habeas petition for failure to state a claim. Perez contends that Section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h), as amended (pertaining to eligibility for waiver of inadmissibility), is unconstitutional because it distinguishes without a rational basis between aggravated felons who are lawful permanent residents of the United States and those who are not. We dismiss the petition for lack of jurisdiction.

The Government contends that the district court lacked jurisdiction. Because the deportation proceedings against Perez were commenced after April 1, 1997, the so-called "permanent rules" of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") are applicable. Max-George v. Reno, 205 F.3d 194, 197 n. 3 (5th Cir. 2000) (citing Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03 (5th Cir. 1999) (applying the temporary rules)).

In Max-George, the court held that the "IIRIRA's permanent provisions eliminate 2241 habeas corpus jurisdiction for those cases that fall within [8 U.S.C.] 1252(a) (2) (C)." 205 F.3d at 199. Section 1252(a) (2) (C) provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a) (2) or 1227(a) (2) (A) (iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a) (2) (A) (ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a) (2) (A) (i) of this title.

8 U.S.C. 1252(a) (2) (C) (emphasis added).

Perez does not dispute that he is removable by reason of having committed a criminal offense. Instead, Perez contends. that Max-George should be distinguished because he is not seeking review of a "final order of removal" but has challenged instead "the unconstitutional unavailability of a waiver which would allow him to return after his removal order" pursuant to 1182(h). This argument is without merit.

Section 1252(a) (2) (B) provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review--(i) any judgment regarding the granting of relief under section 1182(h)...." 8 U.S.C. 1252(a) (2) (B). In Max-George the court held that the phrase in 1252(a) (2) (C), "notwithstanding any other provisions of law, no court shall have jurisdiction," constituted an explicit repeal of 2241 habeas jurisdiction. 205 F.3d at 198-99. Section 1252(a) (2) (B) begins with the same phrase. See 1252(a) (2) (B). Because 1252(a) (2) (B) and 1252(a) (2) (C) both contain the jurisdiction-repealing language, the fact that this case concerns the unavailability of a waiver instead of an order of removal does not provide a basis for distinguishing Max-George.