                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 28 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    SAMUEL NJOROGE NGUGI,

                Petitioner-Appellant,

    v.                                                  No. 03-3320
                                                 (D.C. No. 02-CV-3226-RDR)
    JOHN ASHCROFT, Attorney General;                       (D. Kan.)
    MICHAEL HESTON, District
    Director; JAMES ZIGLAR,
    Commissioner, INS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and ANDERSON , Circuit Judges, and             KANE , ** Senior
District Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      In April 2002, the Bureau of Immigration Appeals (BIA) summarily

affirmed the decision of the Immigration and Naturalization Service in Kansas

City, Missouri (INS)   1
                           ordering that petitioner, Kenyan native Samuel Njoroge

Ngugi, be removed from this country. Mr. Ngugi did not file a petition for review

of that decision. Two days before Mr. Ngugi was due to report to the INS in

Kansas City, Missouri, for deportation, he filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the federal district court for the district

of Kansas.   2



      The § 2241 petition stated that Mr. Ngugi’s motion to reopen his appeal of

the removal order and his motion for stay of deportation were pending before the

BIA. Mr. Ngugi asked the district court for a stay of deportation and “to be at

liberty” pending exhaustion of his administrative remedies because, according to

him, the threatened arrest and detention by the INS violated his right to due


1
       On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security.     See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002). Because the majority of the events
at issue here predate that reorganization, we continue to refer to the INS in this
order and judgment.
2
      Mr. Ngugi was represented by counsel at all times during these § 2241
proceedings.

                                            -2-
process. R. Vol. I at 8. He further indicated that a stay would permit him to file

a claim for asylum and for relief under the Convention Against Torture (CAT).

As a second ground for relief, petitioner alleged that, if the government was not

stayed from deporting him, it would be violating his right to file an asylum claim

and for CAT relief. The government moved to dismiss the petition.

      While this case was pending in the district court, the BIA denied not only

one but two separate motions from Mr. Ngugi seeking to reopen.      Id. at 70, 218.

In the latter order, the BIA determined the Mr. Ngugi had not made out a prima

facie case for asylum eligibility, for withholding of deportation, or for protection

under the CAT. Id. at 218.

      After the BIA’s second refusal to reopen Mr. Ngugi’s case, the government

renewed its motion to dismiss the § 2241 petition. In opposing dismissal,

Mr. Ngugi argued that the district court had jurisdiction to review the denial of

his asylum application pursuant to its habeas corpus powers. He further requested

ten days in which to amend his § 2241 petition based on changes in Kenya and on

the BIA’s denial of his motion to reopen.

      The district court dismissed the petition. With regard to Mr. Ngugi’s

petition for stay of deportation pending resolution of his administrative appeals,

the court noted that the BIA had denied the last motion to reopen and concluded

that petitioner’s due process challenge was moot.


                                         -3-
       As for Mr. Ngugi’s new assertion made in his response brief to the

government’s renewed motion to dismiss that the district court had jurisdiction to

review the denial of his asylum claim, that court concluded that the court of

appeals was the appropriate court to review such a denial and refused to “retain

this action on the petitioner’s new argument that the denial of asylum is

reviewable in this forum.”    Id. at 227.

       Our jurisdiction arises under 28 U.S.C. § 1291. We have conducted a de

novo review of the district court’s dismissal of this § 2241 petition,   see Patterson

v. Knowles , 162 F.3d 574, 575 (10th Cir. 1998), and we affirm.

       We agree with the district court that petitioner’s application for stay

pending resolution of his administrative appeals was moot. The § 2241 petition

requested a stay of deportation based only on the perceived right to file for

asylum and for CAT relief and a due process right to exhaust administrative

remedies. When Mr. Ngugi was allowed to file for asylum and CAT relief and to

complete the administrative process, there was no longer any basis upon which

the district court could grant the § 2241 petition.

       As for review of the denial of asylum, we further agree that dismissal of

that tardily-raised claim was also appropriate. Initially, we note that the § 2241

petition here did not present any claim regarding denial of asylum, nor could it

since the petition pre-dated the asylum decision. Although Mr. Ngugi requested


                                             -4-
leave to amend his petition, no such leave was apparently ever granted and no

amendment proffered. The propriety of the removal order, the denial of the

motions to reopen, and the decision to deny asylum were never properly before

the district court.

       The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                        -5-
