                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                         May 26, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 03-10613
                             Summary Calendar


                              PAUL OLASENI,

                                                  Petitioner-Appellant,

                                  versus

       JOHN ASHCROFT, U.S. ATTORNEY GENERAL; JOHN ZIGLAR,
    INS Commissioner; FRANCIS HOLMES, INS District Director;
   CHARLES MULE, Director Buffalo Federal Detention Facility,

                                                 Respondents-Appellees.



           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 3:02-CV-02084-AH


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

           Paul Olaseni, an Immigration and Naturalization Service

(“INS”)   detainee,    has   appealed   the   magistrate    judge’s     order

dismissing his 28 U.S.C. § 2241 application for a writ of habeas

corpus    raising     constitutional    claims    related     to     removal

proceedings, which had been initiated against him because of his

2001 conviction for mail fraud, and to the processing of a visa



     *
      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this opinion should not be published and is not precedent except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.
petition filed by his wife.             Previously, we denied Olaseni’s

emergency motion to stay his removal.               See Olaseni v. Ashcroft,

No. 03-60630 (5th Cir. Sept. 24, 2003) (unpublished, three-judge

order).

            Olaseni contends that he is not an aggravated felon.

Because this issue involves questions of fact and has been raised

for the first time on appeal, it has not been considered.                      See

Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996); see also Castillo

v. Barnhart, 325 F.3d 550, 553 (5th Cir. 2003).

            Olaseni complains that his right to due process was

violated because the INS proceedings were conducted in the INS’s

Dallas district      office,   rather       than   its    Houston   office.     He

complains that the visa petition was filed long before his 2001

conviction.      “[A]liens in deportation proceedings are entitled to

due process.”      Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th

Cir. 2000).      To raise a cognizable due process claim, “[t]he alien

must demonstrate substantial prejudice.”             Id.

            Because Olaseni’s wife was interviewed in Houston, where

she resides, Olaseni was not prejudiced by the INS’s decision to

conduct    the   administrative   proceedings        in    Dallas   rather    than

Houston.    The information gleaned in that interview supported the

conclusion that Olaseni’s marriage was a sham.                 Olaseni has not

shown that he could have established that the marriage was valid or

that it is likely that the visa petition would have been granted if

the INS proceedings had been conducted in Houston, rather than

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Dallas. Nor has he shown that the result would have been different

if the visa petition had been processed more expeditiously.

            To the extent that Olaseni’s argument puts at issue the

decision of a magistrate judge of the United States District Court

for the Western District of New York to transfer the habeas action

from that district to the Northern District of Texas, rather than

the Southern District of Texas, Olaseni has not shown that the

magistrate judge abused his discretion.             See United States v.

Lipscomb, 299 F.3d 303, 339 (5th Cir. 2002).            Even if the magis-

trate judge had known that the visa petition was filed in Houston,

rather than Dallas, it would have been within his discretion to

order that the case be transferred to the Northern District of

Texas, as that was the district in which the removal proceedings

were pending.      Moreover,    because   Olaseni    has    not   asserted   a

cognizable constitutional claim, any error in ordering that the

case   be   transferred   to   Dallas   rather   than      Houston   was   not

reversible.     See United States v. Gourley, 168 F.3d 165, 171

(5th Cir. 1999).

            The judgment is AFFIRMED.




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