     Case: 11-50266     Document: 00511772272         Page: 1     Date Filed: 02/29/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 29, 2012
                                     No. 11-50266
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LAURO JOSE AGUILAR,

                                                  Petitioner-Appellant

v.

TRAVIS BRAGG, Warden, FCI La Tuna; LANCE LAUGHLIN, Warden, Adams
County Correctional Institution; UNITED STATES MARSHAL, Western District
of Texas,

                                                  Respondents-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:11-CV-57


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges:
PER CURIAM:*
        Lauro Jose Aguilar, federal prisoner # 04200-051, appeals the dismissal
of the 28 U.S.C. § 2241 habeas petition that he filed on behalf of his adopted son
Bardo Aguilar-Castro (“Bardo”) seeking derivative citizenship or legal
permanent resident status for Bardo. The district court held that it lacked
jurisdiction to consider the petition because Aguilar had failed to show that


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50266        Document: 00511772272         Page: 2      Date Filed: 02/29/2012

                                        No. 11-50266

Bardo could not prosecute the action on his own behalf, and dismissed the
petition without prejudice.
      Because Aguilar is proceeding under § 2241, he need not obtain a COA to
pursue his appeal.1 To bring the instant petition pursuant to § 2242 as Bardo’s
“next friend,” Aguilar was required to provide the district court with “an
adequate explanation – such as inaccessibility, mental incompetence, or other
disability – why the real party in interest cannot appear on his own behalf to
prosecute the action.”2 As the “next friend” it was Aguilar’s burden to “clearly
to establish the propriety of his status and thereby justify the jurisdiction of the
court.”3 The district court concluded Aguilar had failed to meet that burden. “In
an appeal from the denial of habeas relief, this court reviews a district court’s
findings of fact for clear error and issues of law de novo.”4
      Aguilar alleged below that Bardo could not prosecute the action on his own
behalf due to mental incapacitation caused by his marital difficulties. On
appeal, he argues the district court erred by rejecting this claim as speculative
merely because he did not submit a medical professional’s opinion to support this
claim. This argument ignores that Aguilar bore the burden of proving Bardo’s
incapacitation, however, and therefore does not justify reversal of the district
court’s judgment.5
      Aguilar also argues that the district court erred because it presumed
Bardo had access to a law library and therefore could have prosecuted the action
himself. In support of that claim, he submits an affidavit from Bardo. This also
does not aid the appeal. First, the affidavit does not claim Bardo was mentally

      1
          Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      2
          Whitmore v. Arkansas, 495 U.S. 149, 163 (1990).
      3
          Id. at 164.
      4
          Jeffers, 253 F.3d at 830.
      5
          See Whitmore, 495 U.S. at 164.

                                               2
   Case: 11-50266         Document: 00511772272          Page: 3    Date Filed: 02/29/2012

                                         No. 11-50266

incapacitated, as claimed by Aguilar before the district court. Second, this court
does not consider evidence offered for the first time on appeal.6
       In light of the lack of evidence to support Aguilar’s “next friend” status
under § 2242, the district court did not err by dismissing the petition for lack of
jurisdiction.7
       AFFIRMED.




       6
           See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
       7
        The district court also found it lacked jurisdiction because Aguilar filed the petition
in the wrong district court and because federal courts lack jurisdiction under 8 U.S.C. §
1252(a)(2)(B) to review immigration decisions left to the discretion of the Attorney General or
Secretary of Homeland Security. Because we conclude that Aguilar failed to present sufficient
evidence of his “next friend” status under § 2242, we do not need to reach these additional
grounds of dismissal in order to affirm the district court’s judgment.

                                                3
