                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                        December 2, 2005
                                     FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                        _________________                                   Clerk
                                            No. 04-51256

                                        (Summary Calendar)
                                        _________________


ELHACHMI ELYAKOUBI,


                                Petitioner - Appellant,

versus


ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL; MICHAEL
CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,


                                Respondents - Appellees.



                            Appeal from the United States District Court
                                For the Western District of Texas
                                     USDC No. 3:03-CV-372



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

         Elhachmi Elyakoubi (“Elyakoubi”) appeals the district court’s denial for lack of jurisdiction

of his petition for a writ of habeas corpus. Elyakoubi, a native of Morocco, argues that he was


         *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
improperly excluded from the United States and should have been subject to deportation rather than

to exclusion. Elyakoubi avers that by excluding him rather than deporting him, the Attorney General

exceeded his statutory authority to remove aliens. The district court determined that it lacked

jurisdiction over the petition under 8 U.S.C. § 1252(g), a jurisdiction-stripping provision of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Elyakoubi now appeals

the denial of his petition.

                                                    I

        Elyakoubi became subject to depo rtation hearings in 1995, during which he was granted

voluntary departure. He entered Mexico, but once there was unable to obtain a visa to re-enter the

United States. After Mexican officials returned him to the United States port of entry in El Paso,

Immigration officials initiated exclusion pro ceedings under the IIRIRA. The Immigration Judge

determined that Elyakoubi had voluntarily departed the United States, that Elyakoubi had not effected

an “entry” within the meaning of the Immigration Code, and therefore that exclusion, rather than

deportation, was appropriate. Elyakoubi appealed to the Board of Immigration Appeals (“BIA”) and

argued that he should be subject to deportation because his departure from the United States was

“innocent, casual, and brief.” See Rosenberg v. Fleuti, 374 U.S. 449, 461 (1963). The BIA rejected

this argument and affirmed the Immigration Judge’s decision. Elyakoubi did not appeal this decision

to the circuit court.

        In September, 2003, The Bureau of Immigration and Customs Enforcement issued a “bag and

baggage” let ter to petitioner, informing him of the pending execution of the exclusion order.

Elyakoubi then filed a writ of habeas corpus with the district court. The district court denied the writ,

determining that it lacked jurisdiction over Elyakoubi’s petition, pursuant to 8 U.S.C. § 1252(g):


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“[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from

the decision or action by the Attorney General to commence proceedings, adjudicate cases, or

execute removal orders against any alien under this chapter.” The district court determined that

§ 1252(g) applied because Elyakoubi was, in effect, attempting to block the Attorney General from

executing the removal order. The district court further held that even if § 1252(g) did not apply, it

lacked jurisdiction under 28 U.S.C. § 2241 because Elyakoubi had not demonstrated that he could

not have sought direct review of the BIA’s decision. See Santos v. Reno, 228 F.3d 591, 595 (5th Cir.

2000) (quoting Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999) (indicating

habeas jurisdiction includes only those “challenges [which] cannot be considered on direct review by

the court of appeals”). While this appeal was pending, Elyakoubi received a second “bag and

baggage” letter, arranging for his departure to Morocco on November 7, 2005. He moved for a

temporary stay of removal pending resolution of his appeal, which we denied.

                                                   II

       Elyakoubi argues that the district court possesses jurisdiction over his habeas petition pursuant

to 28 U.S.C. § 2241. He further asserts that the jurisdiction-stripping provision of § 1252(g) does

not apply because he is not challenging his removal, but rather the propriety of the proceedings that

led to his removal. He maintains that it was inappropriate for him to have been placed in exclusion

rather than deportation proceedings and that this challenge does not “arise from” the commencement

or execution of the removal order. See 8 U.S.C. § 1252(g). We review a district court’s dismissal

for lack of subject matter jurisdiction de novo. Lee v. Gonzales, 410 F.3d 778, 780 (5th Cir. 2005).



       The Supreme Court has generally held that habeas jurisdiction under § 2241 exists under the


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IIRIRA. INS v. St. Cyr, 533 U.S. 289, 314 (2001). Furthermore, the Court has given § 1252(g) a

“narrow” reading and stated that it “applies to only a limited subset of deportation claims.” Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999). Specifically, the Court read

this provision to prevent judicial review of “the Attorney General’s discrete acts of ‘commenc[ing]

proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders’))which represent the initiation

or prosecution of various stages in the deportation process.” Id. at 483. The Court believed that this

provision was “designed to give some measure of protection to ‘no deferred action’ decisions and

similar discretionary determinations, providing that if they are reviewable at all, they at least will not

be made the bases for separate rounds of judicial intervention outside the streamlined process that

Congress has designed.” Id. at 485.

        Whether § 1252(g) deprives us of jurisdiction over this habeas petition challenging the

authority of the Attorney General to place petitioner in exclusion rather than deportation proceedings,

however, does not answer the prior question of whether, even in the absence of this provision, the

district court would possess jurisdiction over Elyakoubi’s habeas petition under § 2241. Specifically

addressing habeas jurisdiction after the passage of the IIRIRA, we have held that “a petitioner must

exhaust available avenues of relief and turn to habeas only when no other means of judicial review

exists.” Lee, 410 F.3d at 785. When discussing another jurisdiction-stripping provision of the

IIRIRA, we noted that if an alien brings an appeal for direct review and we determine that “the

jurisdiction-stripping statute applies, we dismiss the case, and the alien, lacking another avenue of

review, can proceed in habeas.” Salazar-Regino v. Trominski, 415 F.3d 436, 444 (5th Cir. 2005).

Even if Elyakoubi had harbored doubts as to our ability to hear his appeal, he should have filed for

direct review of the BIA’s decision. See Lee, 410 F.3d at 785 (noting that even if an alien is unsure


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whether the circuit court has jurisdiction to hear his appeal, “he should have protected his rights by

filing one”). The “failure to pursue [direct review] before filing [a] habeas petition in the district

court” will trigger denial on jurisdictional grounds. Id. at 445.

       Elyakoubi has not articulated any reason why he failed to bring a direct appeal to this court

after the BIA entered its decision. Therefore we agree with the district court that it did not possess

jurisdiction over the petition because Elyakoubi did not file a petition for review with this court

subsequent to the decision by the BIA and prior to filing the habeas petition.

       Accordingly, t he decision of the district court to deny the writ for lack of jurisdiction is

AFFIRMED.




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