                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3672
                                    ___________

Sherneth Marcia Raffington,           *
                                      *
      Petitioner - Appellant,         *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Mark Cangemi, District Director,      * District of Minnesota.
U.S. Immigration and Customs          *
Enforcement, et al.,                  *
                                      *
      Respondents - Appellees.        *
                                 ___________

                              Submitted: December 15, 2004
                                 Filed: February 4, 2005
                                  ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and HANSEN, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Sherneth Raffington, an alien in custody awaiting removal to Jamaica, appeals
the district court’s1 denial of her petition for a writ of habeas corpus. Raffington
argues that the government is estopped to remove her because of its frivolous appeal
of the Immigration Judge’s grant of suspension of deportation, and that the district
court erred in failing to consider the merits of her belated claim for relief under the


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
Convention Against Torture. We granted the government’s motion to expedite the
appeal and now affirm.

      These proceedings have a long history that we will briefly summarize.
Raffington reentered the United States illegally in April 1988. The Immigration and
Naturalization Service2 initiated deportation proceedings (now called removal
proceedings) in October 1994. Raffington conceded deportability and applied for
suspension of deportation. The Immigration Judge (“IJ”) granted suspension of
deportation in December 1996, and the INS appealed. In September 2001, the Board
of Immigration Appeals sustained the appeal and denied Raffington’s application for
suspension of deportation, concluding that Raffington was not eligible for suspension
because she did not satisfy the seven-year continuous presence requirement.

        Raffington did not appeal the BIA’s decision. Instead, she filed an application
for asylum or withholding of removal and moved to reopen the case and remand to
the IJ to consider this new application. The BIA denied that motion, concluding that
Raffington failed to present a prima facie case that she will be persecuted upon her
return to Jamaica on account of membership in a social group. Raffington appealed
the denial of her motion to reopen. We affirmed. Raffington v. INS, 340 F.3d 720
(8th Cir. 2003).

       After Raffington was taken into custody pursuant to a warrant of removal, she
petitioned for habeas corpus relief. The district court denied relief, concluding that
the INS had a good faith basis to appeal the IJ’s grant of suspension of deportation
and that Raffington’s attempt to assert a claim under the Convention Against Torture
(“CAT”) in her reply brief was untimely. Raffington moved to reopen the case to
present her CAT claim. The district court denied leave to file a motion for


      2
      The agency was renamed the Bureau of Immigration and Customs
Enforcement after its transfer to the Department of Homeland Security.

                                         -2-
reconsideration because “there is no evidence to suggest that Raffington could obtain
relief under the Convention.” She appeals both orders. The district court granted a
stay pending appeal because removal is likely to cause irreparable injury and
Raffington “raises a substantial question as to whether her Convention Against
Torture claim has been adequately adjudicated.”

       1. The Estoppel Claim. Raffington argues that the government is estopped to
remove her because the INS appeal of the IJ’s order granting suspension of
deportation was frivolous. This contention is unsound for many reasons. First,
Raffington did not appeal the BIA’s denial of suspension of deportation to this court.
Under the immigration laws as amended by IIRIRA,3 an appeal to the court of appeals
is the exclusive procedure for obtaining judicial review of removal orders. See 8
U.S.C. § 1252(b). Raffington did appeal the denial of her motion to reopen the
removal proceedings to consider a new application for asylum or withholding of
removal, but she did not raise the estoppel issue in that appeal. We recognize “that
habeas jurisdiction under [28 U.S.C.] § 2241 was not repealed by . . . IIRIRA.” I.N.S.
v. St. Cyr, 533 U.S. 289, 314 (2001). But St. Cyr granted § 2241 habeas review of
an issue of law -- legislative retroactivity -- to an alien who had no right to judicial
review under IIRIRA. Raffington cites no authority for the broader and more
disruptive proposition that habeas relief is available for a claim that could have been
raised on direct review of a removal order but was not. The case on which she bases
her estoppel claim, Otarola v. INS, 270 F.3d 1272 (9th Cir. 2001), involved direct
review of a final order of removal.

      Second, we agree with the district court that the INS appeal was not frivolous.
IIRIRA modified the suspension-of-deportation criteria by enacting a “stop-time” rule
which bars an alien from accruing time toward the continuous presence requirement


      3
       The Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat 3009-546.

                                          -3-
after service of a “notice to appear.” § 240A(d)(1), codified at 8 U.S.C.
§ 1229b(d)(1). The statute applied this new rule to “notices to appear issued before,
on, or after the date of the enactment of this Act.” IIRIRA § 309(c)(5), 110 Stat
3009-627, set forth at 8 U.S.C. § 1101 note (Supp. II 1997). After enactment, the INS
argued that the stop-time rule should apply to orders to show cause as well as to
notices to appear, and that the effective date of the rule was the date of enactment, not
six months later like most other IIRIRA provisions. The IJ rejected this position and
granted Raffington suspension of deportation, concluding that the stop-time rule did
not apply during the six-month grace period. Raffington argues the IJ’s decision was
correct when issued and the INS should not have appealed it, as a divided panel of the
Ninth Circuit ruled in Otarola, 270 F.3d at 1275-76, relying on an earlier Ninth
Circuit decision. With due respect, we disagree with the panel majority in Otarola.
The INS was well within its authority in pursuing this issue before the BIA despite
a contrary Ninth Circuit decision. Within months of the IJ’s decision in this case, the
BIA issued an en banc decision agreeing with the INS’s interpretation of the new
statute. In re N-J-B-, 21 I. & N. Dec. 812 (1997). Later that year, Congress amended
the statute to validate the N-J-B- decision, which ended the controversy in the
agency’s favor. See Nicaraguan Adjustment and Central American Relief Act
(“NACARA”) § 203, Pub L. No. 105-100, 111 Stat. 2193, 2196 (1997), set forth at
8 U.S.C. § 1101 note; Afolayan v. I.N.S., 219 F.3d 784, 787-88 (8th Cir. 2000). In
these circumstances, the INS decision to appeal the IJ’s decision was not frivolous.

        Third, even if the INS had filed a frivolous (but ultimately successful) appeal
of the IJ’s decision, this would not constitute the sort of “affirmative misconduct” that
might estop the government to enforce the immigration laws as enacted by Congress.
See United States I.N.S. v. Hibi, 414 U.S. 5, 7-9 (1973).

      2. The CAT Claim. Raffington argues that the district court erred in refusing
to consider her request for relief under the CAT because that claim has never been
adjudicated on the merits. At the outset, we seriously doubt whether this claim is

                                          -4-
even cognizable in habeas. As ratified by the United States, the CAT is a non-self-
executing treaty, which means there is no direct right of action for violation of the
treaty, only for violation of any domestic law implementing the treaty. The relevant
statute provides that implementation of CAT shall be in accordance with non-
reviewable agency regulations, and that judicial review of the denial of CAT relief
must be “as part of the review of a final order of removal.” Foreign Affairs Reform
and Restructuring Act of 1998 (“FARRA”) § 2242(d), Pub. L. No. 105-277, 112 Stat.
2681-761, 2681-822, set forth at 8 U.S.C. § 1231 note; see 8 C.F.R. § 208.18(e).

       Following the Supreme Court’s decision in St. Cyr, four circuits have held that
an alien who has no right to judicial review of her removal order under IIRIRA may
seek habeas review of the BIA’s denial of CAT relief.4 We are inclined to agree with
those decisions. But here, Raffington had a right to judicial review of her removal
order. Her application for asylum and withholding of removal raised the CAT issue
by stating that she feared torture because, “I will not be allowed medical treatment [in
Jamaica]. And to me that is tantamount to torture because it will ultimately cause my
death.” But in moving to reopen her removal proceedings, she argued only asylum
issues. She did not object when the agency denied that motion without discussing the
CAT issue, and she did not raise that issue when she appealed to this court. As
habeas is not a substitute for direct appeal, as Congress has granted the agency
exclusive authority to implement the CAT, and as Raffington failed to present any
newly discovered evidence to the district court, habeas relief should not be available.

       The district court did not consider these threshold issues. Rather, the court
denied Raffington’s motion for leave to raise a belated CAT claim because that claim
“is too speculative to warrant further proceedings. The Court has reviewed the entire


      4
       See Singh v. Ashcroft, 351 F.3d 435 (9th Cir. 2003); Ogbudimkpa v. Ashcroft,
342 F.3d 207 (3d Cir. 2003); Saint Fort v. Ashcroft, 329 F.3d 191 (1st Cir. 2003);
Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003).

                                          -5-
record in this case and there is no evidence to suggest that Raffington could obtain
relief under the Convention.” After careful review of the record, we agree. Though
Raffington may not have access to the same level of public and private mental health
care in Jamaica as in the United States, that does not constitute torture within the
meaning of the governing CAT regulations. See 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1)-(2).

      The judgment of the district court is affirmed.
                     ______________________________




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