                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                         REVISED JUNE 16, 2005
                                                                       May 31, 2005
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   Charles R. Fulbruge III
                                                                        Clerk


                               No. 04-10218


                               YOUN J. LEE,

                                                 Petitioner - Appellant,

                                  versus

                 ALBERTO GONZALES; NURIA PRENDES,
        Field Officer in Charge of Detention and Removal,
          Bureau of Immigration and Customs Enforcement,

                                                Respondents - Appellees.



             Appeal from the United States District Court
                  for the Northern District of Texas


Before GARWOOD, JONES, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          This case requires further explanation of immigration

procedure in this circuit.        We hold, consistent with our prior

decisions,    that   habeas   corpus   relief   is   not   available     to   an

immigrant who has other procedural devices to secure court review

of Board of Immigration Appeals (“BIA”) decisions, even where the

form of review is limited to this court’s construing statutory

provisions concerning our appellate jurisdiction.           Lee, having had

the opportunity to secure review through an appeal that would have
tested this court’s jurisdiction, improperly pursued habeas relief

instead.    The dismissal of his petition must be affirmed.

            Youn    Jae   Lee   (“Lee”)   appeals   the    district   court’s

dismissal of his petition for habeas corpus.              Lee, a native and

citizen of South Korea, entered the United States as a visitor on

March 22, 1993.        Lee became a legal United States resident on

May 24, 1996.      On April 10, 1998, Lee pled guilty to a single count

of violating 18 U.S.C. § 2320, Trafficking in Counterfeit Goods or

Services.    The court ordered Lee to pay restitution in the amount

of $5,479.92 and placed him on probation for sixty months.              This

conviction prompted the Immigration and Naturalization Service

(“INS”)1 to institute removal proceedings against Lee under the

Immigration and Nationality Act.

            On September 26, 2001, the immigration judge sustained

the charge of deportation based on the judge’s characterization of

Lee’s crime as a “crime involving moral turpitude” (“CIMT”) for

which a sentence of one year or longer could be imposed.               See 8

U.S.C. § 1227(a)(2)(A)(i).        On January 29, 2003, the BIA affirmed

this decision.      Lee did not attempt to file a petition for review

of the BIA’s decision in this court.

            On March 3, 2003, Lee filed instead this petition for

writ of habeas corpus in the district court.              A magistrate judge

recommended that the district court dismiss Lee’s petition for lack


      1
            This entity is now known as the Bureau of Immigration and Customs
Enforcement.

                                      2
of jurisdiction.           The district court agreed that the findings and

conclusions of the magistrate judge were correct, adopted those

findings and conclusions, and dismissed Lee’s petition. Lee timely

appealed.

                                        DISCUSSION

                We review the district court’s dismissal for lack of

subject matter jurisdiction de novo, using the same standard

applied by that court.            See Robinson v. TCI/US West Communications

Inc.,     117    F.3d      900,   904   (5th       Cir.    1997).       Because   the   INS

instituted removal proceedings against Lee on April 24, 2000, we

apply the permanent rules governing immigration proceedings to this

case.     See DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 813 (5th Cir.

2001).

                In   his    habeas      petition,         Lee   urges   that   his   prior

conviction is not a CIMT2 and contends that he did not file a

petition for review of the BIA decision because this court would

have lacked jurisdiction to entertain such a petition; based on

this belief, and the recent Supreme Court case of INS v. St. Cyr,

533 U.S. 289, 121 S. Ct. 2271 (2001), Lee instead filed the instant

petition for habeas corpus.




      2
            This is the sole issue raised by Lee through his habeas petition.
As will be discussed infra, we are unable to consider this claim through habeas.
If, however, Lee had raised on habeas any other issue in addition to whether his
crime is a CIMT, then, if the conviction were a CIMT, he would never have had
available any judicial review (habeas or direct appeal) of his “other” claims,
and St. Cyr would apply according to our authorities discussed infra.

                                               3
            In   a   case   involving       an   inadmissible   alien   (see   §

1182(a)(2)(A)(i))3, this court held that “when the alien has been

convicted of a crime involving moral turpitude . . . 8 U.S.C. §

1252(a)(2)(C) deprives us of jurisdiction to hear his petition for

review.”     Balogun v. Ashcroft, 270 F.3d 274, 278-79 (5th Cir.

2001).    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


      3
            1182(a)(2) provides, in relevant part:

(A) Conviction of certain crimes
      (i) In general
            Except as provided in clause (ii), any alien convicted of, or
            who admits having committed, or who admits committing acts
            which constitute the essential elements of —
                  (I) a crime involving moral turpitude (other than a
                  purely political offense) or an attempt or conspiracy to
                  commit such a crime, or
                  (II) a violation of (or a conspiracy or attempt to
                  violate) any law or regulation of a State, the United
                  States, or a foreign country relating to a controlled
                  substance (as defined in section 802 of Title 21), is
                  inadmissible.
      (ii) Exception
            Clause (i)(I) shall not apply to an alien who committed only
            one crime if
                  (I) the crime was committed when the alien was under 18
                  years of age, and the crime was committed (and the alien
                  released from any confinement to a prison or
                  correctional institution imposed for the crime) more
                  than 5 years before the date of application for a visa
                  or other documentation and the date of application for
                  admission to the United States, or
                  (II) the maximum penalty possible for the crime of which
                  the alien was convicted (or which the alien admits
                  having committed or of which the acts that the alien
                  admits having committed constituted the essential
                  elements) did not exceed imprisonment for one year and,
                  if the alien was convicted of such crime, the alien was
                  not sentenced to a term of imprisonment in excess of 6
                  months (regardless of the extent to which the sentence
                  was ultimately executed).

8 U.S.C. § 1182(a)(2)(A) (emphasis added).

                                        4
       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).     Lee has been ordered removed under §

1227(a)(2)(A)(i); his removal order therefore does not appear to

fall    within    the   jurisdiction-stripping   provisions    of   §

1252(a)(2)(C).    The provision relevant to Lee states:

(a)(2) Criminal Offenses
     (A) General crimes
          (i) Crimes of moral turpitude —
               Any alien who —
                    (I) is convicted of a crime involving moral
                    turpitude committed within five years (or 10
                    years in the case of an alien provided lawful
                    permanent   resident   status  under   section
                    1255(j) of this title) after the date of
                    admission, and
                    (II) is convicted of a crime for which a
                    sentence of one year or longer may be imposed,
               is deportable.
          (ii) Multiple criminal convictions
               Any alien who at any time after admission is
               convicted of two or more crimes involving moral
               turpitude, not arising out of a single scheme of
               criminal misconduct, regardless of whether confined
               therefor and regardless of whether the convictions
               were in a single trial, is deportable.
          (iii)Aggravated felony
               Any alien who is convicted of an aggravated felony
               at any time after admission is deportable.

8 U.S.C. § 1227(a)(2).    In light of these provisions, Lee contends

that § 1227(a)(2)(A)(i) is “subsumed” in § 1182(a)(2)(A)(i), and

that under Balogun this court similarly lacks jurisdiction to hear

a petition for review by an alien (such as Lee) ordered removed

under § 1227(a)(2)(A)(i).


                                  5
              While logical at first blush, Lee’s “subsumation theory”

cannot survive more careful scrutiny.                  The INS ordered Lee removed

pursuant to § 1227(a)(2)(A)(i).                     Although this provision does

appear in the jurisdiction-stripping statute, § 1252(a)(2), it

prohibits appeal only by aliens convicted of multiple CIMT, not

aliens convicted of only one CIMT.                  Because the order removing Lee

is   not     included    in    the      jurisdiction-stripping          statute,    the

unambiguous text of the statute permitted him to seek direct review

of the determination in this court.                 As the district court pointed

out, different standards apply to aliens seeking admission to the

United States (who may be considered “inadmissible” under § 1182

for their prior conduct) and aliens lawfully admitted to the United

States subject to deportation for subsequent conduct (under §

1227). Once an alien is lawfully admitted into this country, logic

demands that it be harder to remove that lawfully admitted alien

than to refuse admission to an alien seeking entry in the first

instance.       This     notion    is    borne      out   in    the   structure    of   §

1252(a)(2)(C) (applicable to lawfully admitted aliens subject to

deportation),      which      divests     this       court     of   jurisdiction   more

narrowly than § 1182(a)(2)(A)(i)(applicable to removable aliens

never lawfully admitted into the United States).                      Accord St. Cyr,

533 U.S. at 298, 121 S. Ct. at 2278 (discussing the “strong

presumption in favor of judicial review of administrative action”).

To   hold,    as   Lee    urges,     that       §   1227(a)(2)(A)(i)      is   somehow

“subsumed” into § 1182(a)(2)(A)(i), would harm the very subgroup of

                                            6
aliens — those legally residing in the United States — to which

Lee himself belongs.

            Lee argues that our reading of the statute runs counter

to the intent of Congress, which was “to deprive criminal aliens of

direct judicial review under the INA.”        Appellant’s Br. at 19.     He

points to no authority, either case law or legislative history, in

support of his proposition.       Moreover, our reading of the statute

supports the view that Congress rationally chose to permit direct

review for aliens lawfully admitted into the United States who

commit a single CIMT within five years of admission, and to

prohibit direct appeal only for those aliens convicted of multiple

CIMT. This regime allows review and correction of a possible error

for those    convicted   of   a   single   offense,   and   dispenses   with

additional process for repeat offenders.          We need not resort to

hypothetical inquiries about Congressional intent here, however,

because our resolution of the question is supported by the text and

structure of the statute as well as our prior decisions; Lee’s

“subsumation theory” is not.

            Lee further contends that Smalley v. Ashcroft, 354 F.3d

332 (5th Cir. 2003), requires reversing and remanding the case back

to the district court for a hearing of his habeas petition.             This

argument proves too much.         In Smalley, this court held that 8

U.S.C. § 1182(a)(2)(A)(i)(I) stripped this court of jurisdiction to

hear a petition for review on direct appeal of a deportation order

filed by an alien ordered deportable for committing a single CIMT.

                                     7
354 F.3d at 335.          The court first had to ascertain whether

Smalley’s conviction for money laundering qualified as a CIMT;

after concluding that this offense constituted a CIMT, the court

necessarily    concluded    that     it   lacked    jurisdiction       to   hear   a

petition for review because of the jurisdiction-stripping provision

in   the   transitional    Illegal    Immigration      Reform    and    Immigrant

Responsibility Act of 1996 (“IIRIRA”) rules.4              354 F.3d at 339.        In

determining whether the crime at issue was a CIMT, this court

explained that it “always ha[s] jurisdiction to consider whether .

. . specific conditions exist that bar . . . jurisdiction over the

merits, namely, whether the petitioner is (1) an alien, (2) who is

deportable, (3) for committing the type of crime that bars [this

court’s] review.”     Id. at 335 (quoting Nehme v. INS, 252 F.3d 415,

420 (5th Cir. 2001)). Moreover, Smalley provides the exact sort of

review Lee seeks: If Lee had, like Smalley, filed a petition for

review, this court could have considered the “jurisdictional fact”

of his sole contention on appeal — that his crime was not a CIMT —

even though an affirmative finding would deprive the court of

jurisdiction.    If Lee’s contention prevailed, however, this court

would have    jurisdiction     to    hear     his   full   petition    and    grant

appropriate relief. Thus, assuming arguendo that Lee is correct on

this point,     the   appropriate     procedural      option    was    to    file a

petition for review, not a petition for habeas corpus, because



      4
            The permanent rules are codified at § 1252(a)(2)(C).

                                          8
binding circuit law holds that where another avenue of relief

exists, habeas will not lie.            Santos v. Redno, 228 F.3d 591, 597

(5th Cir. 2000).          In failing to file a petition for review, Lee

forfeited the opportunity for this determination.

               In St. Cyr, the Supreme Court addressed the jurisdiction-

stripping statute in a similar, although not directly controlling,

context. St. Cyr challenged the effect of parts of the IIRIRA that

eliminated the Attorney General’s ability to refuse to deport

aliens previously convicted of aggravated felonies.                    533 U.S. at

297, 121 S. Ct. at 2277.              St. Cyr filed a petition for habeas

corpus to challenge the law’s application to him; the INS asserted

that the relevant parts of the IIRIRA repealed the federal courts’

habeas jurisdiction.          Initially, the INS had to overcome “both the

strong presumption in favor of judicial review of administrative

action and the longstanding rule requiring a clear statement of

congressional intent to repeal habeas jurisdiction.”                   Id. at 298,

121 S. Ct. at 2278 (internal citations and footnotes omitted).                      If

it were correct that Congress had repealed both habeas review and

all    other    avenues    of    review,     the   Court   reasoned,    a   serious

constitutional Suspension Clause question would be presented.                      Id.

at    305,   121   S.   Ct.     at   2282.       Both   parties   agreed    that   no

alternative forum existed (because Congress had removed federal

court jurisdiction to hear a petition for review), so the Court had

to determine if Congress spoke with sufficient clarity to repeal

habeas jurisdiction.          The Court answered the second inquiry in the

                                             9
negative,    held    that   habeas    jurisdiction         existed,   and   thereby

avoided the Suspension Clause question.

            A divided panel of the Third Circuit has held, following

St. Cyr, that habeas corpus jurisdiction exists even where a

petition for review could have been filed. In Chmakov v. Blackman,

two illegal aliens filed a petition for habeas corpus, alleging

violation    of    their    due   process       rights   because   they     received

ineffective assistance of counsel.                266 F.3d 210, 213 (3d Cir.

2001).     The Chmakovs were initially ordered removed, and an IJ

denied their       application     for     political     asylum.      Id.   at   212.

Through counsel, the Chmakovs filed an untimely brief with the BIA,

which responded by dismissing their appeal. The Chmakovs failed to

appeal to the Third Circuit, even though that court retained

jurisdiction to hear a petition for review after passage of the

IIRIRA.    Id.    The Chmakovs then filed a habeas petition in federal

district    court    seeking      relief    for    ineffective     assistance     of

counsel. The court awarded summary judgment to the INS for lack of

subject matter jurisdiction.               In assessing the jurisdictional

question,    the    Third    Circuit,      citing    St.    Cyr,   announced     the

following test:

     [B]efore we could find that the District Court lacked
     jurisdiction to entertain the Chmakovs’ habeas petition,
     we would have to be satisfied both that there was another
     avenue for review of the BIA’s decision and that Congress
     had clearly stated its intention to strip district courts
     of power to hear petitions such as this.




                                           10
266 F.3d at 214 (emphasis in original).            The Chmakovs plainly met

the first part of the court’s test: “it is acknowledged by both

parties that the Chmakovs had the right to seek review in this

Court of the BIA’s decision to dismiss their claim for asylum and

order them deported.”       Id.   Moving to the second part of the test,

the court determined that Congress had not expressed its desire to

repeal habeas jurisdiction with sufficient clarity, relying on the

Supreme Court’s reasoning in St. Cyr (and previous circuit cases).

Id.; accord Riley v. INS, 310 F.3d 1253, 1255 (10th Cir. 2002); Liu

v. INS, 293 F.3d 36, 39-41 (2d Cir. 2002); contra Laing v.

Ashcroft, 370 F.3d 994, 999-1000 (9th Cir. 2004) (dismissing habeas

petition because alien failed to file a timely petition for review,

and consideration of the petition would have not been futile

because the court could have considered the jurisdictional fact

contested by the alien).5

            Judge Roth dissented from the majority’s interpretation

of St. Cyr.      In St. Cyr, reasoned Judge Roth, the Supreme Court

“repeatedly suggests, in keeping with the Suspension Clause, that

where the petitioner has available to him an alternate avenue of

review, the writ of habeas corpus simply need not be available.”



      5
            The Second Circuit apparently has no similar rules limiting habeas
jurisdiction to cases where no other avenue of relief is available. Because we
are bound by our precedent to the contrary, and St. Cyr did not overrule that
precedent, we must come to a different conclusion. Notably, the Ninth Circuit
uses a procedure similar to this court’s in assessing BIA characterizations of
crime. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1212 (9th Cir. 2002) (“We have
repeatedly held that we retain jurisdiction to determine whether an alien in fact
committed acts that would trigger [the jurisdictional bar].”).

                                       11
Chmakov, 266 F.3d at 217.       Because the Chmakovs admittedly had an

alternative avenue of review available to them (a petition for

review in the court of appeals), but did not take it, habeas

jurisdiction need not lie and was not available.        “Thus, contrary

to the majority’s view, the principal argument offered by the INS

in this case — that an explicit statement of intent to repeal

habeas jurisdiction should only be required where the repeal might

lead to a violation of the Suspension Clause — is consonant with

the Supreme Court’s decision in St. Cyr.”        Id. at 218.   We agree.

As in Chmakov, no suspension clause issue is created here because

Lee could have, but did not, employ another avenue of relief,

namely, a petition for review.

          Treatment of this issue after St. Cyr by other circuits

comports with this approach: If an alien is ordered removed, he

should file a petition for review; if this court lacks jurisdiction

to hear that petition for review, only then may he file a petition

for habeas corpus.    See Yanez-Garcia v. Ashcroft, 388 F.3d 280,

283-84 (7th Cir. 2004) (dismissing an alien’s petition for review

because the court lacked jurisdiction to hear it under IIRIRA, and

remanding the case to the district court so alien could instead

file a petition for habeas corpus); Laing, 370 F.3d at 999-1000

(dismissing habeas petition because alien could have filed a

petition for review, and review by the Ninth Circuit would have not

been   futile   because   the    court   could   have   considered   the

jurisdictional fact contested by the alien); Lopez v. Heinauer, 332

                                    12
F.3d 507, 511 (8th Cir. 2003) (“Although habeas jurisdiction

remains available to deportees who raise questions of law and who

have no other available judicial forum [citing St. Cyr.], the

statute here provides an adequate judicial forum, permitting the

noncriminal   deportee    to   file    a     petition   for   review   in   the

appropriate court of appeals. . . . Lopez filed the wrong action in

the wrong federal court.”); see also Foroglou v. Reno, 241 F.3d

111, 114 (1st Cir. 2001) (deciding, in a case decided just before

St. Cyr, that “habeas is preserved for those who have no other

way to present on direct review constitutional or other legal

challenges    to   a   final   order    of    deportation”)    (emphasis     in

original).

          Lee should have filed a petition for review in this

court.   Unlike in St. Cyr, where the court of appeals lacked all

means of reviewing the legal question presented because of IIRIRA’s

jurisdiction-stripping provisions, this court had jurisdiction to

resolve Lee’s CIMT challenge through a petition of review. Because

Lee failed to file a petition for review, the district court lacked

jurisdiction to hear his habeas petition.           See Santos, 228 F.3d at

597 (holding that habeas is unavailable where the court of appeals

could have heard the claims presented through another avenue of

relief); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th




                                       13
Cir. 1999);6 see also 8 U.S.C. § 1105a(c) (“No petition for review

or for habeas corpus shall be entertained if the validity of the

order has been previously determined in any civil or criminal

proceeding, unless the petition presents ground which the court

finds could not have been presented in such prior proceeding, or

the court finds that the remedy provided by such prior proceeding

was   inadequate    or   ineffective     to   test   the    validity    of   the

order . . . .”).7

            If Lee had doubts as to whether this court could have

heard his petition for review, he should have protected his rights

by filing one.     Our review in such a case would be similar to the

manner in which this court decides questions of qualified immunity

on interlocutory appeal: if the court can determine as a matter of

law whether immunity shields the official, jurisdiction is asserted

and the question is resolved; if the court is unable to decide the

question of immunity as a matter of law, the appeal is dismissed

for lack of jurisdiction.        Cf. Hernandez ex rel. Hernandez v. Tex.



      6
             To the extent the issue is “open” because previous cases dealt only
with the “transitional” rules as opposed to the permanent ones, there is little
basis to hold otherwise vis-a-vis the permanent rules because the statutory
scheme is basically identical. See Renteria-Gonzalez v. INS, 322 F.3d 804, 809
(5th Cir. 2002) (“The transitional and permanent rules are nearly identical.”).
      7
            This result is further supported by Rivera-Sanchez v. Reno, where we
vacated a district court’s dismissal of a habeas petition on the grounds that (1)
the underlying offense was not included in the jurisdictional-stripping
provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), (2) the petitioner’s action for relief should have been through
a motion for review of the BIA determination; and thus (3) the district court
lacked jurisdiction to hear the habeas petition. 198 F.3d 545, 547-48 (5th Cir.
1999).

                                       14
Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 878-79

(5th Cir. 2004); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th

Cir. 2001).      Litigation would proceed in similar fashion in this

court:   the     alien    files     a   petition   for     review;   if    the   court

determines that the crime is not a CIMT, jurisdiction is asserted

and the case is decided accordingly; if the court determines the

crime is a CIMT, the petition is dismissed for lack of jurisdiction

and the alien, lacking another avenue of relief, may proceed in

habeas. This method reduces confusion as to procedure, efficiently

uses judicial      resources,8 and          best   synthesizes       the   intent   of

Congress and controlling Supreme Court precedent.

            To clarify, we do not hold that Congress repealed habeas

jurisdiction when it passed IIRIRA;9 instead, a petitioner must

exhaust available avenues of relief and turn to habeas only when no

other    means    of     judicial       review   exists.      When    a    petitioner

challenges whether a crime constitutes a CIMT, this court has

jurisdiction to determine our jurisdiction and thus decide whether

the BIA correctly considered the crime a CIMT.                  As Lee failed to


      8
            The Seventh Circuit, although disagreeing with this practice, has
credited this approach as economical, mainly because a petition for review,
unlike a habeas petition, comes directly from the BIA to the court of appeals,
bypassing the district court entirely. See Yanez-Garcia, 388 F.3d at 284.
      9
            To that extent, we agree with the circuits addressing this issue.
See Chmakov, 266 F.3d at 214.     However, the fact that habeas jurisdiction
persists under the statute does not undermine our jurisprudence that habeas can
lie only where no other avenue of relief exists; dismissal of petitions like
Lee’s does not constitute a holding that habeas jurisdiction has been stripped
(see id.), but only that the petitioner has defaulted his opportunity to employ
this jurisdiction and that the district court lacked jurisdiction to hear his
particular case. Accord Laing, 370 F.3d at 997-99.

                                           15
follow this procedure, which directly derives from this court’s

previous decisions, the district court properly dismissed his

habeas petition.   AFFIRMED.




                               16
